Privileges

Question 1

What are the elements that create an attorney-client privilege?

Answer 1

1. Communications must be made between an attorney and client
2. Client must have been seeking the professional services of attorney at the time of communication
3. Communications must be confidential (not made in the presence of a complete stranger, agents ok).

Question 2

Who holds the attorney-client privilege?

Answer 2

The client. Client is the only one who can waive it.

Question 3

How long does the attorney client privilege last?

Answer 3

Indefinitely, even after client’s death.

Question 4

What are the three exceptions to the attorney-client privilege?

Answer 4

1. If attorney’s services were sought to aid in planning or commission in something the client should have known was a crime or fraud
2. No privilege regarding a communication relevant to an issue between parties claiming through the same deceased client
3. Communications relevant to an issue of breach of duty in a dispute between attorney and client.

Question 5

When does a physician-patient privilege exist?

Answer 5

1. When there is a professional relationship
2. The information acquired while attending the patient was in the course of treatment
3. The information is necessary for the treatment

Question 6

When is the physician-patient privilege impliedly waived?

Answer 6

1. When the patient puts his physical condition at issue (personal injury suits, etc)
2. The physician’s assistance was sought to aid wrongdoing
3. The communication is relevant to an issue of breach of duty between the physician and patient
4. Patient agreed by contract to waive privilege (insurance policy)
5. It is a federal case applying the federal law of privilege

Question 7

The court orders a psychiatric analysis of defendant before trial. Are these communications privileged?

Answer 7

No. Patient must seek physician’s advice on his own to gain privilege, court-ordered appointments are not privileged.

Question 8

Husband is on trial for murder. Can the prosecution subpoena Wife and have her testify?

Answer 8

No, this would violate spousal immunity. However, Wife may ELECT to testify

Question 9

What does spousal immunity consist of?

Answer 9

Immunity from being compelled to testify against your spouse in a criminal case, during the marriage, regarding information learned before and after marriage. Only Witness Spouse can invoke it, is allowed to testify if they wish.

Question 10

What communications are covered under the Confidential Marital Communications Privilege?

Answer 10

ANY communications made in reliance of the intimacy of marital relations, made DURING the marriage.

Question 11

Who may invoke the Confidential Marital Communications Privilege? What types of proceedings does this privilege apply to?

Answer 11

EITHER spouse may invoke the privilege to prevent the other spouse from disclosing, in both civil and criminal cases.

Question 12

Partner A and Partner B both are using the same attorney to negotiate a business deal with Seller. Partner A tells attorney that he may not in fact have sufficient funds for the deal. May attorney disclose this to Partner B?

Answer 12

Yes. This falls under one of the exceptions of attorney-client privilege, when 2 or more parties communicate with the attorney about a matter of common interest, NO privilege exists among them.

Question 13

Husband, in a tearful fit, tells Wife where he hid the gun, hoping she would console him. Instead, this causes a rift in their marriage and they get a divorce. Soon after, Husband is on trial for murder. Can Husband stop Wife from testifying at his trial?

Answer 13

No, decision to testify is the WITNESS-SPOUSE’S privilege.

Question 14

Husband, in a tearful fit, tells Wife where he hid the gun, hoping she would console him. Instead, this causes a rift in their marriage and they get a divorce. Soon after, Husband is on trial for murder. Can Husband stop Wife from revealing his confession?

Answer 14

Yes. This communication will be considered a confidence made between spouses, and either spouse may invoke the privilege.

Question 15

Client comes to Attorney looking ragged, believing he is schizophrenic and may have committed a crime during an episode. Attorney requires Client to go to Physician to check Client’s physical condition. What type of privilege, if any, exists?

Answer 15

Attorney-Client privilege. Here, Physician is seen as an agent of Attorney since it was at Attorney’s direction the appointment occurred.

Question 16

Phil is charged under the Federal Kidnapping Act when he kidnapped his ex-girlfriend and held her against her will across state lines. Phil claims his ex came with him voluntarily, but his ex states she struggled, as evidenced by the long gashes from her nails that Phil had to have treated by a doctor. Can the prosecution call the doctor to testify that he treated Phil the day after the kidnapping?

Answer 16

Yes. Generally this would fall under physician-patient privilege, this privilege does not apply in federal cases where state law does not supply the rule of privilege, such as in federal question cases.