Testimonial privileges

Question 1

Federal or state privileges

Answer 1

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

Question 2

Federal courts recognize these privileges (6)

Answer 2

The attorney-client privilege

Spousal immunity

The privileges for confidential martial communications

Psychotherapist / social worker-client privilege

Clergy-penitent privilege, and

Governmental privileges

Question 3

Who can assert privileges

Answer 3

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

Question 4

Confidentiality

Answer 4

To be privileged, a communication must be shown or presumed to have been made in confidence - not intended to be disclosed to third parties

Question 5

Waiver

Answer 5

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

Question 6

Eavesdroppers and confidentiality

Answer 6

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

Question 7

Attorney-client privilege

Answer 7

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

Question 8

“attorney” and “client”

Answer 8

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

Question 9

corporate clients - attorney client relationship

Answer 9

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

Question 10

Confidential communication - attorney client relationship

Answer 10

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

Question 11

Communications through agents - attorney client relationship

Answer 11

Communications made to third persons are confidential and covered by the privilege if necessary to transmit information between attorney and client

Question 12

Communications between a client and a doctor during an examination made at the attorney’s request

Answer 12

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

Question 13

Joint client rule - attorney client relationship

Answer 13

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

Question 14

Holder of the privilege and application - attorney client relationship

Answer 14

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

Question 15

Exceptions - attorney client relationship (4)

Answer 15

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

Question 16

Attorney’s work product

Answer 16

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

Question 17

Disclosed and undisclosed privileged material and waiver - attorney client relationship

Answer 17

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

Question 18

Physician-patient privilege

Answer 18

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

Question 19

Who holds the physician-patient privilege

Answer 19

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

Question 20

Exceptions - physician-patient privilege

Answer 20

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

Question 21

Criminal proceedings - physician-patient privilege

Answer 21

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

Question 22

Psychotherapist- / social worker-patient privilege

Answer 22

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

Question 23

Exception - psychotherapist- / social worker-patient privilege

Answer 23

There is no privilege where the patient puts their mental condition at issue in the case

Question 24

Spousal immunity privilege

Answer 24

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

Question 25

Spousal immunity privilege - who holds and how long it lasts

Answer 25

Need a valid marriage for it to apply and lasts only during the marriage
- what matters is whether the spouses are married at the time of trial

Privilege belongs to the witness-spouse
- so cannot be compelled to testify, but may choose to do so

Question 26

Confidential marital communications privilege

Answer 26

In any civil or criminal case, confidential communications between spouses during a valid marriage are privileged

Question 27

Confidential marital communications privilege - who holds and how long lasts

Answer 27

Either spouse can refuse to disclose the communication or prevent any other from doing so - both hold it

Marital relationship must exist when the communication is made
- divorce does not terminate the privilege but communications after divorce are not privileged

Question 28

Confidential marital communications privilege - confidentiality

Answer 28

Private communications between spouses are generally presumed to be confidential - but not always the case

Communication must be made in reliance upon the intimacy of the marital relationship
- threats or abusive language are not privileged

Communications made in the known presence of a third party are not privileged
- but may still be privileged if made in the presence of young children living in the home

Question 29

When neither marital privilege applies

Answer 29

Communications or acts in furtherance of a future joint crime or fraud

In legal actions between the spouses, or

In cases where a spouse is charged with a crime against the testifying spouse or either spouses children

Question 30

Clergy-penitent privilege

Answer 30

Federal courts and many states recognize a privilege for statements made to a member of the clergy, the elements of which are very similar to the attorney-client privilege

Apply only if the penitent made the communication to the clergy member in the clergy member’s capacity as a spiritual adviser

Question 31

Governmental privileges

Answer 31

Official information not otherwise open to the public may be privileged

Also holds a privilege that protects the identity of an informer
- waived if the informer’s identity is voluntarily disclosed by a privilege holder

Question 32

Accountant-client privilege

Answer 32

State only - many states recognize

Statements made to an accountant and elements are very similar to the attorney-client privilege

Question 33

Professional journalist privilege

Answer 33

State only

No constitutional right for a professional journalist to protect their source of information - only certain states recognize