Privileges

Question 1

On the Bar Exam for Federal procedure issue on MULTISTATE exam: If bar examiners specifically indicate the action is pending in federal court, what rules should apply? 2

Answer 1

1. In a federal-court action ARISING UNDER FEDERAL SUBSTANTIVE LAW (all civil cases arising under Constitution or federal statutes, and all criminal cases): “privileges are governed by the principles of the common law as they may be interpreted by the federal courts in the light of reason and experience.” For the most part, these are the basic rules on privileges as covered in lecture.
2. n a federal-court action based on DIVERSITY jurisdiction, where state substantive law applies to parties’ claims and defenses (Erie situation), the federal court must apply PRIVILEGE LAW OF THE STATE whose substantive law is applicable.: Always a civil case, state substantive law applies, Erie, Privilege law applies (know this)

Question 2

What are the three exceptions where the FRE is not used and the state substantive rules are used?

Answer 2

In diversity actions, federal courts also apply STATE LAW ON COMPETENCY (e.g., Dead Man’s Statutes) and STATE LAW ON BURDENS OF PROOF AND PRESUMPTIONS. Aside from these three exceptions (privileges, competency, and burdens of proof / presumptions), FRE apply in all federal-court actions, including diversity cases.

Question 3

What is the rationale to the attorney client privilege?

Answer 3

To encourage client to speak openly to counsel.

Question 4

When does attorney client privilege apply?

Answer 4

Attorney Client - Confidential communication between atty and client or a rep of either made during a professional legal consultation, unless privilege is waived by the client or if an exception applies

Question 5

When are communications confidential?

Answer 5

Client must intend confidentiality (e.g., no privilege if client knows that third party is listening in; or if client asks attorney to disclose the communication to a third party). Joint client rule: If two or more clients with common interest consult the same attorney, their communications with counsel concerning the common interest are privileged as to third parties. But if the joint clients later have dispute with each other concerning the common interest, privilege does not apply as between them. Communication: Privilege does not apply to underlying information, pre-existing documents, or physical evidence.

Question 6

HYOP, atty client privilege: Delbert is sued for his alleged negligence in an auto accident. He tells his attorney what happened and gives her the cell phone with which he was making a call at the time of the accident. Before trial, Delbert is deposed by plaintiff’s counsel:

(a) Must Delbert respond if asked, “What did you tell your attorney about the accident?”
(b) Must Delbert respond if asked, “Describe what you were doing at the time of the accident.”
(c) If served with a subpoena, must Delbert’s attorney produce Delbert’s cell phone?

Answer 6

a) No - Privileged
b) Yes - Tell us the facts, there is no privilege here, no immunization merely by speaking with atty
c) Yes - Phone is evidence, not a communication with atty

Question 7

For atty client privilege when is an individual an attorney?

Answer 7

Member of the bar or person that client reasonably believes is member of the bar

Question 8

Does the atty client privilege exist where the client communicates with an agent of the atty?

Answer 8

Yes, includes any agent reasonably necessary to facilitate the provision of legal services (e.g., accountant working with attorney to “translate” client’s financial matters)

Question 9

For atty client privilege when is an individual a client?

Answer 9

Includes person seeking to become client (e.g., privilege attaches at outset of formal consultation with attorney even if client does not retain attorney), also those seeking to be clients

Question 10

Does the atty client privilege exist where the client communicates with an agent of the client?

Answer 10

Yes, any agent reasonably necessary to facilitate the provision of legal services (e.g., for corporate client, any employee who communicates with corporation’s attorney to enable attorney to provide legal services to the corporation)

Question 11

Who is allowed the waive the atty client privilege?

Answer 11

Voluntary Waiver: Only the client has the power to waive the privilege. (*After the client’s death, the privilege continues and only the client’s estate can waive it.)

Question 12

What is a subject matter waiver of the atty client privilege?

Answer 12

A voluntary waiver of the privilege as to some communications will also waive the privilege as to other communications if:

(a) The partial disclosure is intentional
(b) The disclosed and undisclosed communications concern the same subject matter; and
(c) Fairness, requires that the disclosed and undisclosed communications be considered together.

Question 13

What is the inadvertent waiver of the atty client privilege?

Answer 13

An inadvertent disclosure of a privileged communication will not waive the privilege so long as the privilege-holder:

(a) took reasonable steps to prevent the disclosure, and
(b) takes reasonable steps to correct the error

Question 14

What are the exceptions to the atty client privilege? 3

Answer 14

1) Future crime or fraud: E.g., client tells attorney, “Help me disguise the bribes I made so that they look like legitimate business expenses.”
2. Where the client puts legal advice at issue: E.g., in tax fraud prosecution, defendant defends on ground that she relied on advice of her attorney in reporting income.
3. Atty-client dispute - E.g., attorney sues client for unpaid fee, or client sues attorney for legal malpractice.

Question 15

What is the Physician-Patient Privilege?

Answer 15

Usually created by state statute. Rationale: to encourage candor by patient and to protect privacy.

Question 16

What are the elements or privileges that apply to the Physician-Patient Privilege?

Answer 16

a. Confidential communication or information acquired by physician from patient
b. For purpose of diagnosis or treatment of medical condition
c. Also applicable to psychotherapists (M.D. or other professional certified to diagnose or treat mental / emotional illness).
d. Federal law distinction: in federal-court actions based solely on federal law,
privilege exists only for psychotherapy (There is no privilege in federal-court actions based solely on federal law for confidential communications with physicians as regards physical conditions.) In fed court, they apply principles of the common law, and fed judges do not recognize dr-patient privileges, SCOTUS has said there is psychotherapy privilege

Question 17

HYPO, Physician-Patient Privilege: Physician examines Patient’s lungs in hospital room while visitor is present. (1) Patient tells doctor, “Do you suppose my wheezing is due to the four packs of cigarettes I smoke every day?” (2) After visitor leaves, Patient says to doctor, “Know any good lawyers? I haven’t paid my income taxes in three years.”

(a) In state court action in which condition of patient’s lungs is an issue, could doctor be compelled to disclose statement (1)?
(b) In prosecution for income tax evasion, could doctor be compelled to disclose statement (2)?

Answer 17

(a) Yes - no privilege, that statement was not confidential there was a visitor present
(b) Yes - Was confidential, visitor left, does not concern medical treatment or diagnosis

Question 18

What is the general exception to the Physician-Patient Privilege?

Answer 18

If patient expressly or impliedly puts physical or mental condition in issue. E.g., patient is plaintiff suing for damages for personal injury, or defendant asserts insanity defense. (e.g. Plaint. sues for physical damages, def. should be able to test

Question 19

What is the general rule for spousal immunity in criminal cases only?

Answer 19

A spouse cannot be compelled to testify about anything against the defendant spouse. (Sometimes called “privilege against adverse spousal testimony.”) Rationale: to protect harmony of existing marriage at time of trial. (Witness-spouse may voluntarily testify against the defendant spouse if he/she so chooses.)

Question 20

What is the Confidential Communications Between Spouses in any type of case?

Answer 20

A spouse is not required, and is not allowed in the absence of consent by the other spouse, to disclose a confidential communication (statements or acts) made by one to the other during the marriage. Both spouses hold this privilege.
Rationale: to encourage candor between husbands and wives during the marriage.

Question 21

What are some exceptions to the spousal immunity privileges?

Answer 21

1. Communications or acts in furtherance of jointly-perpetrated future crime
   or fraud
2. Communications or acts destructive of family unit, e.g., spousal or child abuse
3. In litigation between the spouses themselves (e.g., breach of contract)

Question 22

HYPO, Spousal immunity privilege: Niles is prosecuted for the murder of his brother Frazier. Niles and Daphne are a married couple. Niles comes home on the night of Frazier’s demise wearing a blood-stained Armani topcoat, which Daphne observed.

(a) At trial, the prosecutor calls Daphne to the stand to testify to her observations about Niles’ topcoat, but she refuses to testify. The prosecutor seeks to compel her testimony.
(b) Assume Daphne is willing to testify against Niles. In addition to the topcoat observation, she seeks to testify to the following: “Niles told me when he got home that he stabbed Frazier.” Niles objects.

Answer 22

a) She cannot be compelled
1. Confidential communications does not apply observation of blood was not a confidential communication (public)
2. Daphne can invoke spousal immunity (she could if she wanted though, it is something she can invoke)
b) Yes defendant has a valid objection to the 2nd part of testimony
1. Spousal immunity does not apply, witness spouse willing to testify, so she can testify, not a confidential communication
2. Niles can invoke confidential communication about admission to killing bro, made during the marriage, either spouse can invoke it

Question 23

Does the marriage have to exist at the time of the trial to invoke the spousal immunity?

Answer 23

Yes, the rationale is to preserve marital harmony and the marriage has been terminated