Testimonial privileges Flashcards
Federal or state privileges
In a federal court case arising under federal substantive law, privileges are governed by federal common law
In a federal court case based on diversity jurisdiction, state substantive law applies, the federal court must apply privilege law of the state
Federal courts recognize these privileges (6)
The attorney-client privilege
Spousal immunity
The privileges for confidential martial communications
Psychotherapist / social worker-client privilege
Clergy-penitent privilege, and
Governmental privileges
Who can assert privileges
A privileges is personal to the holder - so it can only be asserted by the holder, generally
Sometimes the person with whom the confidence was shared may assert the privilege on the holder’s behalf
Confidentiality
To be privileged, a communication must be shown or presumed to have been made in confidence - not intended to be disclosed to third parties
Waiver
Any privilege is waived by
- failure to claim the privilege
- voluntary disclosure of the privileged matter by the privilege holder, or
- a contractual provision waiving in advance the right to claim a privilege
Not waived when someone wrongfully disclosed information without the privilege holder’s consent
- and waiver by one joint holder does not affect the right of the other holder to assert the privilege
Eavesdroppers and confidentiality
A privilege based on confidential communications is not destroyed because it was overheard by someone whose presence is unknown to the parties
Under modern view, in the absence of negligence by the person claiming privilege, even the eavesdropper would be prohibited from testifying
Attorney-client privilege
Communications between an attorney and client, made during professional consultation
- primary purpose of the communication must be to obtain or render legal services, not to give business advice or social advice
Applies to
- confidential communications
- between attorney and client (or representatives of either)
- made during professional legal consultation
- unless the privilege is waived or an exception is applicable
“attorney” and “client”
Attorney is a member of the bar or someone the client reasonably believes to be a member of the bar
The client must be seeking the professional services of the attorney at the time of the communication
Disclosures made before the attorney accepts or declines the case are covered by the privilege
corporate clients - attorney client relationship
Corporations are clients and statements made by corporate officials or employees to an attorney are protected if the employees were authorized or directed by the corporation to make sure statements
Confidential communication - attorney client relationship
Applies to communications only and not to the underlying information, pre-existing documents, or physical evidence
Confidential - not intended to be disclosed to third parties
- not confidential if made in the known presence and hearing of a stranger
- but representatives of the attorney or client may be present without destroying the privilege
Communications through agents - attorney client relationship
Communications made to third persons are confidential and covered by the privilege if necessary to transmit information between attorney and client
Communications between a client and a doctor during an examination made at the attorney’s request
Usually done to help the attorney evaluate the extent of the client’s injuries
The physician-patient privilege does not apply because no treatment is contemplated
But the attorney-client privilege will apply to these communications between the client and a consulting doctor, as long as the doctor is not called as a testifying expert
Joint client rule - attorney client relationship
If two or more clients with a common interest consult the same attorney, their communications with the attorney concerning the common interest are privileged as to third parties
But if the joint clients later have a dispute with each other concerning the common interest and one client sues the other, the privilege does not apply as between them
Holder of the privilege and application - attorney client relationship
The client holds the privilege and only they can waive it
- attorney’s authority to claim the privilege on behalf of the client is presumed in the absence of contrary evidence
Applies indefinitely
- after the relationship ends
- after the client’s death
Exceptions - attorney client relationship (4)
There is no privilege
- if the attorney’s services were sought to aid in the planning or commission of something the client should have known was a crime or fraud
- where the client has put the legal services at issue in the case
- for a communication relevant to an issue of breach of duty in a dispute between the attorney and client
- regarding a communication relevant to an issue between parties claiming through the same deceased client
Attorney’s work product
Although documents prepared by an attorney for their own use in a case are not protected by the privilege, they are not subject to discovery except in cases of necessity
Disclosed and undisclosed privileged material and waiver - attorney client relationship
Generally, a voluntary disclosure of privileged material operates as a waiver of the attorney-client privilege or work product protection only with respect to the disclosed material
Undisclosed privileged matierial is subject to the waiver only if
- the waiver was intentional,
- the disclosed and undisclosed material concern the same subject matter, and
- the material should be considered together to avoid unfairness
No waiver if the disclosure was inadvertent and the holder took reasonable steps to prevent disclosure and rectify the error
Physician-patient privilege
State privilege only - most states have adopted a physician-patient privilege
Confidential information acquired by a physician is privileged if
- there was a professional relationship between the physical and the patient for the purposes of medical treatment
- the information was acquired for the purpose of diagnosis or treatment, and
- the information was necessary for diagnosis or treatment
Who holds the physician-patient privilege
Belongs to the patient - patient may decide to claim it or waive it
If patient is unavailable at time of trial, the physician may claim it on behalf
Exceptions - physician-patient privilege
Does not apply or is impliedly waived if
- the patient puts their physical condition in issue (like personal injury lawsuit)
- the physicians assistance was sought to aid wrongdoing
- the communication is relevant to an issue of breach of duty in a dispute between the physician and patient (med mal case)
- the patient agreed by contract to waive the privilege, or
- it is a federal case applying the federal law of privilege
Criminal proceedings - physician-patient privilege
In some states, the privilege applies in both civil and criminal cases
In a number of others, it cannot be invoked in criminal cases generally
- denied in felony cases and in a few states, denied only in homicide cases
Psychotherapist- / social worker-patient privilege
Federal courts recognize
Confidential communications between a psychotherapist or licensed social worker and their patient / client
In most particulars, this privilege operates in the same manner as the attorney-client privilege
- intended confidential
- purpose of communication must have been to facilitate professional services
Exception - psychotherapist- / social worker-patient privilege
There is no privilege where the patient puts their mental condition at issue in the case
Spousal immunity privilege
Married person whose spouse is a defendant in a criminal case may not be called as a witness by the prosecution
Married person may not be compelled to testify against the legal interests of their spouse in any criminal proceeding
- regardless of whether the spouse is the defendant
