Privileges Flashcards
Are privilege laws exempt from Prop 8?
most are, even in a criminal case the usual privilege rules apply.
What is the result, regarding privileges, of a civil suit brought in federal court under diversity jurisdiction?
You must use the state’s privilege law!
What is the attorney-client privilege?
FRE and CEC: A communication between attorney
and client or their representatives intended by client to be confidential and made to
facilitate rendition of professional legal services is privileged unless waived by the client.
Federal: Privilege survives death of client.
CEC: Privilege ends once estate of dead
client is distributed and executor of estate is discharged.
When is a communication from a corporation employee to the corporation’s attorney privileged?
FRE: Privilege applies to communications from employees/agents if they were authorized by the corporation to make the communication to the layer on behalf of the corporation
CEC: Privilege applies to communications from employee/agent if she is the natural person to speak to the lawyer on behalf of the corporation in the matter, or employee/agent did something for which the corporation may be held liable, and the corporation instructed her to tell its lawyer what happened.
As applied, there is no significant difference in the scope of these standards.
Action for personal
injuries arising out of collision between Corporation’s delivery truck and another
vehicle in Corporation’s parking lot. Employee of Corporation happened to be
parking his car at the time and witnessed the accident. His supervisor orders him to
write a statement for the Corporation’s lawyers describing what he saw. Privileged?
Merely a witness who happens to be an employee, no privilege under CEC or FRE
What are the exceptions to the attorney-client privilege?
FRE and CEC: Privilege does not apply where:
(i) professional services were sought to further crime or fraud; or
(ii) two or more parties consult an attorney on a matter of common interest and the communication is offered by one of those parties against the other; or
(iii) communication relates to alleged breach of duty between lawyer and client
CEC ONLY :
(iv) privilege does not apply where lawyer reasonably believes disclosure of communication is necessary to prevent crime that is likely to result in death or substantial bodily harm
Client meets with his attorney and states, “I want you to look for some tax shelters
for me because my rich parents are about to have a fatal accident.” The attorney
called the police, who arrived at defendant’s home too late to prevent the
“accident.” Is the client’s statement admissible?
Under CA yes
Is there a doctor-patient privilege according to the FRE?
NO! BUT MBE ASSUMES EXISTENCE OF ONE.
Is there a doctor-patient privilege under CA law?
Yes
Is there a psychotherapist-patient privilege in CA?
Yes.
What are the exceptions to the psychotherapist-patient privilege?
Both:
(i) where the patient puts his physical or mental condition at issue, as in a personal injury suit
(ii) where professional services were sought to aid in crime or fraud or to escape capture after a crime or tort
(iii) in a case alleging breach of duty between patient and doctor or psychotherapist
CEC ONLY:
(iv) psychotherapist privilege does not apply if the psychotherapist has reasonable cause to believe that the patient is a danger to himself or others, and that disclosure is necessary to end the danger,
(v) doctor-patient privilege does not apply in criminal cases or to information that doctor is required to report to a public office (e.g. gun shot wounds and some communicable diseases)
Joe goes to Dr. Phil, and requests an STD check. Dr. Phil discovers that Joe has a multitude of STDs, including AIDS and Hepatitis C. Dr. Phil concludes that the cause of the AIDS and Hep C is likely unprotected homosexual sex in the form of sodomy. Or that Joe engaged in beastiality with apes or monkeys. Dr. Phil is required by law to report Joe’s diseases to a public office. Does California’s Doctor-Patient Privilege prevent this disclosure?
No. If Dr. Phil were also Joe’s psychotherapist, he could also disclose this information because he reasonably believes that Joe’s monkey sex is a danger to himself.
ha ha ha
Joe is a monkey fucker!
What is the spousal privilege in California?
It applies in both civil and criminal cases (unlike FRE which only applies in criminal cases). It permits witness to refuse to testify against his spouse as to anything. Spousal confidential communication privilege may apply in any case and protects confidential spousal communications DURING marriage
What other privileges does CA recognize?
Privilege for confidential communications between a counselor and a victim of sexual assault or domestic violence
Privilege for penitential communications between penitent and clergy
Immunity from contempt of court for news reporter who refuses to disclose his sources
