V. PRIVILEGES Flashcards
A. Introduction
- In general, on MULTISTATE exam, apply basic rules on privileges as covered in lecture.
- Federal procedure issue on MULTISTATE exam: If bar examiners specifically indicate the action is pending in federal court, apply the following procedural rules:
(a) In federal-court action ARISING UNDER FEDERAL SUBSTANTIVE LAW (all civil cases arising under Constitution or federal statutes, and all criminal cases): For the most part, these are the basic rules on privileges as covered in lecture.
(b) In federal-court action based on DIVERSITY jurisdiction, where state substantive law applies to parties’ claims and defenses (Erie situation), the federal court must apply PRIVILEGE LAW OF THE STATE whose substantive law is applicable. Note: In diversity actions, federal courts also apply STATE LAW ON COMPETENCY (e.g., Dead Man’s Statutes) and STATE LAW ON BURDENS OF PROOF AND PRESUMPTIONS. Aside from these 3 exceptions (privileges, competency, and burdens of proof / presumptions), FRE apply in all federal-court actions, including diversity cases. - Texas: In general, apply basic rules on privileges as covered in lecture.
B. Attorney-Client Privilege
2. Elements. Privilege applies to— Confidential
- Elements. Privilege applies to— Confidential
- communications
- between attorney and client (or representative of either)
- made during professional, legal consultation
- unless privilege is waived or an exception is applicable
B. Attorney-Client Privilege
- Definitions:
(a) Confidential communications:
- Definitions:
(a) Confidential communications: Client must intend confidentiality (e.g., no privilege if client knows that third party is listening in; or if client asks attorney to disclose the communication to a third party). Joint client rule: If two or more clients with common interest consult the same attorney, their communications with counsel concerning the common interest are privileged as to third parties. But if the joint clients later have dispute with each other concerning the common interest, privilege does not apply as between them.
Communication: Privilege does not apply to underlying information, pre-existing documents, or physical evidence.
B. Attorney-Client Privilege
- Definitions:
(b) Attorney
(b) Attorney—member of the bar or person that client reasonably believes is member of the bar
Representative of the attorney—any agent reasonably necessary to facilitate the provision of legal services (e.g., accountant working with attorney to “translate” client’s financial matters)
B. Attorney-Client Privilege
- Definitions:
(c) Client
(c) Client—includes person seeking to become client (e.g., privilege attaches at outset of formal consultation with attorney even if client does not retain attorney)
Representative of client—any agent reasonably necessary to facilitate the provision of legal services (e.g., for corporate client, any employee who communicates with corporation’s attorney to enable attorney to provide legal services to the corporation)
B. Attorney-Client Privilege
- Definitions:
(d) Professional legal consultation
(d) Professional legal consultation—primary purpose of communication must be to obtain or render legal services, not business or social advice
B. Attorney-Client Privilege
- Definitions:
(e) Waiver
(e) Waiver—Client is holder of privilege, so client alone has power to waive by disclosure of communication to third party. Privilege continues after attorney-client relationship ends and even after death of client. Client’s estate representative has power to waive privilege after client’s death
B. Attorney-Client Privilege
- Definitions:
(f) Exceptions
(f) Exceptions—
(1) Future crime or fraud: E.g., Client tells attorney, “Help me disguise the bribes I made so that they look like legitimate business expenses.”
(2) Client puts legal advice in issue: E.g., In tax fraud prosecution, defendant defends on ground that she relied on advice of her attorney in reporting income.
(3) Attorney-client dispute: E.g., attorney sues client for unpaid fee, or client sues attorney for legal malpractice.
C. Physician-Patient Privilege
2. Elements.
federal
- Elements. Privilege applies to—
Confidential communication or information acquired by physician from patient for purpose of diagnosis or treatment of medical condition
Also applicable to psychotherapists (M.D. or other professional certified to diagnose or treat mental / emotional illness).
Federal distinction: in federal-court actions based solely on federal law, privilege exists for psychotherapists, but not for usual physician-patient confidences (e.g., gall bladder treatment)
C. Physician-Patient Privilege
3. General Exception:
- General Exception: If patient expressly or impliedly puts physical or mental condition in issue, e.g., patient is plaintiff suing for damages for personal injury, or defendant asserts insanity defense.
C. Physician-Patient Privilege
Texas exceptions:
Texas exceptions:
(1) no doctor-patient privilege in criminal cases. However, a communication to a person who is examining or treating another for drug or alcohol abuse is not admissible in a criminal proceeding.
(2) no privilege if any party relies on patient’s physical or mental condition as part of party’s claim or defense.
D. Husband - Wife Privileges
1. Spousal Immunity
IN CRIMINAL CASES ONLY, a spouse cannot be compelled to testify against the defendant spouse.
Witness-spouse, not defendant, is holder of privilege, i.e., witness-spouse may voluntarily testify against the defendant spouse if he/she so chooses.
doesn’t survive divorce
D. Husband - Wife Privileges
2. Confidential Communications Between Spouses
- Confidential Communications Between Spouses
IN ANY TYPE OF CASE, a spouse is not required, and is not allowed in the absence of consent by the other spouse, to disclose a confidential communication made by one to the other during the marriage. Both spouses hold this privilege.
survive divorce
D. Husband - Wife Privileges
3. Exceptions applicable to both privileges:
TX
- Exceptions applicable to both privileges:
communications or acts in furtherance of future crime or fraud
communications or acts destructive of family unit, e.g., spousal or child abuse
***additional Texas civil exceptions: all types of disputes between spouses (e.g., breach of contract) and incompetency / commitment proceedings
