Testimonial Privileges

Question 1

Testimonial Privileges - General Concept

Answer 1

• permit a person to refuse to disclose, and prohibit others from disclosing certain confidential info in judicial proceedings

Question 2

Fed vs State Privilege Law - When They Apply

Answer 2

• privileges are governed FED common law in a fed court case arising under fed substantive law
• privileges governed by STATE law in fed court case based on div jur, where state substantive law applies to parties’ claims + defenses

Question 3

Major Privileges Recognized by Federal Courts

Answer 3

• attorney-client privilege
• spousal immunity
• privilege for confidential marital communications
• psychotherapist/social worker client privilege
• clergy-penitent privilege
• governmental privileges

Question 4

Persons Who May Assert Privilege

Answer 4

• privileges = personal to the holder -> generally can be asserted only by the holder
• sometimes person w/ whom confidence was shared may assert the privilege on the holder’s behalf though

Question 5

Confidentiality

Answer 5

• to be privileged, communication must be shown or presumed to have been made in confidence (not intended to be disclosed to third parties)

Question 6

Commenting on Privileges

Answer 6

• forbidden -> neither counsel for the parties nor the judge may comment on someone’s claim of a privilege

Question 7

Waiver

Answer 7

Any privilege is waived by:
1) failure to claim the privilege
2) voluntary disclosure of the privileged matter by the privilege holder OR
3) a contractual provision waiving in advance the right to claim a privilege

NOT waived by:
- someone wrongfully disclosing info w/o privilege holder’s consent
- waiver by one joint holder does not affect right of the other holder to assert the privilege

Question 8

Eavesdroppers

Answer 8

• 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 absence of negligence by he person claiming the privilege, even the eavesdropper would be prohibited from testifying

Question 9

Attorney-Client Privilege - Elements

Answer 9

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 10

Attorney-Client Relationship

Answer 10

• “attorney” = member of the bar, OR someone the client reasonably believes to be a member of the bar
• “client” must be seeking the professional services of the attorney at the time of the communication
• disclosures made before attorney accepts or declines the cases are covered by the privilege

Question 11

Corporate Clients (attorney-Client Privilege)

Answer 11

• corporations are “clients” within the meaning of the privilege
• statements made by officials or employees to an attorney are protected if the employees were authorized or directed by the corporation to make such statements

Question 13

Confidential Communication

Answer 13

• privilege applies to communications only
• does NOT apply to underlying info, pre-existing docs, or physical ev
• to be protected, a communication must be confidential (not intended to be disclosed to third parties)
  -> communications made in known presence and hearing of a stranger are not privileged
• reps of attorney or client may be present without destroying the privilege

Question 14

Attorney-Client Privilege - Communications Through Agents

Answer 14

• communications made to third parties are confidential + covered by privilege if necessary to transmit info between attorney + client
• ex: administrative assistants, messengers, accountants
• communications between client + doctor during exam made at attorney’s request -> physician-patient privilege DOESN’T apply because no treatment contemplated, but attorney-client DOES apply, as long as doctor not called as testifying expert

Question 15

Attorney-Client Privilege - Joint Client Rule

Answer 15

• if 2 or more clients w/ a common interest consult same attorney, their communications w/ the attorney concerning the common interest are privileged as to third parties
• BUT if joint clients later have a dispute w/ each other concerning common interest + one client sues other, privilege does NOT apply as between them

Question 16

Professional Legal Consultation

Answer 16

• primary purpose of the communication must be to obtain or render legal services (not to give business or social advice)

Question 17

Attorney-Client Privilege - Who Holds?

Answer 17

• client holds the privilege
• only client can waive it
• attorney’s authority to claim the privilege on behalf of the client is presumed in the absence of contrary evidence

Question 18

Attorney-Client Privilege - Duration

Answer 18

• the privilege applies indefinitely
• continues after relationship ends + after death
• estate rep has power to waive privilege after death

Question 19

Attorney-Client Privilege - Exceptions

Answer 19

• if attorney’s services were sought to aid in planning or commission of something client should have known was a crime or fraud
• where client has put legal services at issue in the case
• for a communication relevant to an issue of breach of duty in a dispute between attorney + client
• regarding a communication relevant to an issue between parties claiming through the same deceased client

Question 20

Attorney’s Work Product

Answer 20

• docs prepared by attorney for own use in a case are not protected by the privilege
• BUT not subject to discovery except in cases of necessity

Question 21

Limitations on Waiver of Attorney-Client Privilege and Work Product Rule

Answer 21

• generally, a voluntary disclosure of privileged material operates as a waiver of attorney-client privilege or work product protection only wrt the disclosed material
• undisclosed privileged material is subject to the waiver only if:
  1) the waiver was intentional
  2) the disclosed + undisclosed material concern the same subject matter AND
  3) the material should be considered together to avoid unfairness
• no waiver if disclosure inadvertent + holder took reasonable steps to prevent disclosure + rectify error

Question 22

Physician-Patient Privilege - Scope + Applicability

Answer 22

• most states have adopted physician-patient privilege
  -> BUT no such privilege under fed common law

Confidential info acquired by physician privileged if:
- professional relationship between physician + patient for purposes of med treatment
- info acquired for purpose of diagnosis or treatment AND
- info necessary for diagnosis or treatment (non-med info not privileged)

• privilege belongs to patient + only patient can claim or waive (though doctor can claim on patient’s behalf if patient unavailable)

Question 23

Physician-Patient Privilege - Exceptions

Answer 23

Physician-patient privilege does not apply (or is impliedly waived) if:
- patient puts their physical condition in issue
- physician’s assistance was sought to aid in wrongdoing
- communication is relevant to an issue of breach of duty in dispute between patient + physician
- patient agreed by contract to waive the privilege (ex: insurance case)
- fed case applying fed law of privilege

Question 24

Physician-Patient Privilege - Crim Proceedings

Answer 24

• some states don’t allow this to be invoked in crim cases
• some deny only in felony cases, some only in homicide
• some don’t deny at all

Question 25

Psychotherapist/Social Worker-Patient Privilege

Answer 25

• fed courts recognize privilege for confidential communications between psychotherapist or licensed social worker and patient/client
• in most particulars, this privilege operates in same manner as attorney-client privilege
• no privilege where patient puts mental condition at issue in case

Question 26

Spousal Testimonial Privilege

Answer 26

• commonly known as spousal immunity
• when privilege of spousal immunity is invoked, married person whose spouse is def may not be called as a witness by prosecution
• ONLY in CRIMINAL cases
• married person may not be compelled to testify against legal interests of spouse in any crim proceeding, regardless of whether spouse is def

Question 27

Spousal Testimonial Privilege - Duration

Answer 27

• must be a valid marriage for privilege to apply
• privilege only last during marriage
• privilege belongs to witness-spouse -> can CHOOSE to testify

Question 28

Privilege for Confidential Spousal Communications

Answer 28

• in any crim or civil case, confidential communications between spouses during a marriage are privileged
• EITHER spouse can refuse to disclose the communication or prevent someone else from doing so
• for it to apply, the marital relationship must exist when the communication is made
• divorce doesn’t terminate the relationship, but communications afterward not protected

Question 29

Marital Communications Privilege - Confidentiality

Answer 29

• communication must be made in reliance on the intimacy of marital relationship
• threats or abusive language NOT privileged
• communications made in known presence of a third party are NOT privileged
  -> may be confidential though if made in presence of young children living in the home

Question 30

When Neither Marital Privilege Applies

Answer 30

• communications or acts in furtherance of a future joint crime or fraud
• in legal actions between spouses OR
• in cases where a spouse is charged with a crime against the testifying spouse or either spouse’s children

Question 31

Clergy-Penitent Privilege

Answer 31

• fed courts + many states recognized privilege for statements made to a member of the clergy, elements of which are very similar to attorney-client privilege
  -> ex: only applies if penitent made communication to clergy member in clergy’s capacity as spiritual adviser

Question 32

Governmental Privileges

Answer 32

• official info not otherwise open to public may be privileged
• gov also holds a privilege that protects the identity of an informer (someone who has provided gov with details of a potential crime)
• privilege is waived if informer’s identity is voluntarily disclosed by privilege holder (an appropriate gov rep)

Question 33

Accountant-Client Privilege

Answer 33

• State only
• many states recognize privilege for statements made to accountant
• elements similar to attorney-client

Question 34

Professional Journalist Privilege

Answer 34

• state only
• no constitutional right for professional journalist to protect sources
• only certain states recognize such a privilege