Privileges Flashcards

1
Q

What privilege law applies

A
  1. An action where state law applies, state law applies with respect to privileges.
  2. In an action where federal law applies, federal common law applies with respect to privileges
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2
Q

Commonly tested privileges

A
  • Attorney client.
  • Spousal privileges.
  • Psychotherapist/Social Worker client privilege
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3
Q

Attorney-Client Privilege

A
  1. Covers confidential communications between attorney and cient or a rep of other made during professional legal consultation
  2. Privileged by disclosure unless waived by the client or an exception applies. Survives client’s death
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4
Q

Attorney-Client Privilege

Confidential communications

A
  1. Client must intend confidentiality.
  2. No privilege if clt knows a 3rd party listenint in, or clt tells atty to disclose to 3rd party
  3. Eavesdropper does not break this privilege
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5
Q

Attorney-Client Privilege: Communications limitaton

A
  1. Privilege does not cover physical evidence or physical observations only applies to communications.
    1. E.g. party must respond if asked what he did with car keys/must produce car keys
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6
Q

Attorney-Client Privilege: Professional Legal relationship

A
  • Client intends to establish a professional legal relationship (fee negotiations are covered as well).
  • Predominantly legal services must be sought—not business or social advice)—e.g. client asking where nearest bar is not covered
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7
Q

Attorney-Client Privilege: Joint client rule

A

If two or more clients with common interests consult the same attorney, their communications with counsel about the common interest are privileged as to 3rd parties. But if the joint clients later have a dispute with each other about the common interest, the privilege does not apply as between them.

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8
Q

Exceptions to Attorney-Client Privilege

A
  1. Future crime or fraud
    1. E.g. client asks atty to help hold assets
  2. Clt makes an issue of legal advice
    1. E.g. clt on trial for tax evasion and claims ot have been acting on legal advice
  3. Dispute between atty and clt
    1. E.g. legal malpractice/fee dispute
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9
Q

The two different spousal privileges

A
  • Spousal Immunity
  • Confidential Marriage Communications Privilege
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10
Q

Spousal immunity

A
  1. One spouse cannot be forced to give adverse testimony against another in a criminal case.
    1. Only applies in criminal cases: one spouse cannot be compelled to testify against the defendant spouse. (to promote marital harmony
    2. Privilege belongs to the testifying spouse
    3. Spouses must be married at the time of the trial/proceeding, but privilege applies to matters that pre-date the mrg
    4. Protects against all adverse testimony
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11
Q

Confidential marital communications privilege

A
  1. Spouse is not required, and is not allowed without other spouse’s consent, to disclose a confidential communication made by one to the other during the mrg. Both spouses hold the privilege
    1. Spouses must be mrd at the time of the communication, not the trial
      1. Later divorce does not matter
    2. Protects only confidences, not the spouses own observations, physical evidence, etc…
    3. Holder of the privwlege is either spouse
    4. Privelege applies in all cases, civil and criminal.
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12
Q

Exceptions to both spousal privileges

A
  1. Communications or acts in furtherance of future criminal or fraud (no Bonnie and Clyde)
  2. Communications or acts destructive of family, e.g. spousal or child abuse
  3. One spouse suing the other
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13
Q

Psychotherapist/social worker-client privilege

A
  • The client has a privilege against disclosure of confidential information acquired by the psychotherapist/scial worker in a professional relationship entered into for the purpose of getting trtmt
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14
Q

Psychotherapist/social worker-client privilege elements

A
  1. Pt must be seeking trtmt
  2. Information acquired must be confidential and necessary to facilitate trtmt
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15
Q

Psychotherapist/social worker-client privilege waiver

A
  • Privilege is waived if pt sues the psychotherapist, or if the pt puts his own condition at issue (e.g. pleads insanity in a criminal case)
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16
Q

Federal Physician-patient privilege

A
  • There is no federal physician-patient privilege.
  • However, many states recognize this privilege
17
Q

Physician-patient privilege in VA

A
  • VA recognizes a general physician patient privilege.
  • However, physician-patient and psychotherapist-patient privileges are available in civil cases only.