Privileges

Question 0

What are the elements of the attorney-client privilege? What are the limits?

Answer 0

ELEMENTS:
(1) confidential communications
(2) between attorney and client (or either’s representative)
(3) during professional legal consultation
LIMITS:
• waiver by client
• exception to privilege (e.g., crime/fraud exception)

Question 1

What law determines privileges in federal court?

Answer 1

Federal question jurisdiction: privileges follow principles of the common law, interpreted in the light of reason and experience.
Diversity jurisdiction: apply the law of privileges of the state whose substantive law is applicable

Question 2

Who may waive attorney-client privilege?

Answer 2

only the client

Question 3

When will a partial waiver of the attorney-client privilege waive the privilege to other communications?

Answer 3

satisfy all:

(1) partial disclosure is intentional
(2) disclosed and undisclosed communications concern the same subject matter, and
(3) fairness requires that the disclosed and undisclosed information be considered together

Question 4

What is the effect of an inadvertent waiver of the attorney client privilege?

Answer 4

It will not waive the privilege so long as the privilege-holder both:

(1) took reasonable steps to prevent the disclosure, and
(2) takes reasonable steps to correct the error

Question 5

What are the exceptions to the attorney-client privilege?

Answer 5

• future crime/fraud
• client puts legal advice in issue
• attorney-client dispute

Question 6

Under what law does the physician-patient privilege exist?

Answer 6

Usually created by state statute. Does not exist if the court applies federal law. Under federal law, only the psychotherapy privilege exists.

Question 7

What are the elements of the physician-patient privilege?

Answer 7

satisfy both:

(1) confidential communication or information acquired by physician from patient…
(2) for purpose of diagnosis or treatment

Question 8

Besides physicians, to whom does the physician-patient privilege apply?

Answer 8

psychotherapists (professional certified to diagnose or treat mental / emotional illness)

Question 9

What is the exception to physician-patient privilege?

Answer 9

When the plaintiff expressly or impliedly puts physical or mental condition in issue

Question 10

Define the two spousal privileges.

Answer 10

SPOUSAL IMMUNITY
• criminal cases only
• spouse cannot be forced to testify against defendant spouse
• testifying spouse is holder of the privilege
• only applies while married
CONFIDENTIAL COMMUNICATIONS
• confidential communication…
• made during the marriage…
• cannot be used unless both spouses consent
• survives marriage

Question 11

What are the exceptions to both spousal privileges?

Answer 11

• communications or acts in furtherance of jointly perpetrated future crime or fraud
• communications or acts destructive of family unit (e.g., spousal or child abuse)
• litigation between the spouses themselves