VII. Privileges

Question 1

Introduction

Answer 1

• This is more for multistate
• Federal Procedure Issue on MULTISTATE–if pending federal court followi the follwoing
  
  • ACtion arising under FEDERAL SUBSTANTIVE LAW, priviliges goerned by the principles of the common law as they may be intereted by the federal courts in the light of reason and experience.
  • DIversity where state substnative law applies, privilege law of the state

Question 2

Evidentiary Privelege

Answer 2

• subpowena is government power to compel testimony
• privelege is a person’s right to refuse that compulsion

Question 3

Attorney-Client Privilege

Answer 3

• Protects
  
  • CONFIDENTIAL COMMUNICATIONS
  • between client and attorney
  • in the course of seeking legal advice
• Confidential Communications: Client must intend confidentiality (e.g. knows a 3P is standing there or asks att’y to disclose at some point)
• Joint Client Rule: If two or more clients with common interest consult same attorney, their communications w/ counsel concerning the common interest are privileged as to 3P.
  
  • but if a dispute arises between the two, privilege does not apply as between them
• Communication: does not apply to underlying info, pre-existing docs or physical evidence
• Identity of individuasl:
  
  • Att’y
  • Represenatitve of att’y–any agent reasonably necessary to facilitate provision of legal services (paralegal, clerk, accountant working w/ attorney to translate client’s finances)
  • Client–person seeking to become client (Can apply at consultation even if not retained
  • Rep of CLient–any agent or employee of client reasonably necessary to facilitate provision of services

Question 4

Corporate Client Privilege

Answer 4

• Covers statements to attorneys from employees who are part of the “control group” of the corporation (senior execs).
• Other employees communication is covered only IF:
  
  • employees were DIRECTED to speak to the attorney,
  • the communications RELATED to the corporation’s legal issues AND
  • communications were kept CONFIDENTIAL and disclosed only on a need to know basis within the corp

Question 5

Waiver of Privilege

Answer 5

• Voluntary Waiver: only the client can waive the privilege (Death, privilege continues and only the estate may waive it)
• Subject Matter Waiver: voluntary waiver as to some communications will also waive privilege to other communications that conern same subject matter
• Inadverdent Waiver: disclosure of a privileged communication will not waive privilege so long as the holder took reasonable steps to preserve confidentiality of communication

Question 6

Exception to A/C Privilege

Answer 6

• Future Crime or Fraud (Client asks attorney to disguise bribes as future business)
• Implied Waiver (defense that fraud was b/c she relied on att’y advice)
• Privilege is a shield, not a sword

Question 7

Physician-Patient Privilege

Answer 7

• not recognized on the fedearl or georgia state level; other states do recognize this
• Privilege applies to confidential communications or information acquired by physician from patient for purpose of diagnosis or treatment of a medical condition
• Patient waives privilege when the patient expressly or impliedly puts physical condiition in issue

Question 8

Mental Healthcare Privilege

Answer 8

• FEdearl and Georgia recognize a privilege for communications to mental health care providers for purpose of receiving mental health care
• LIke A/C privilge
• waived when mental condition borught into use by patient (e.g. insanity plea)

Question 9

Marital Privileges

Answer 9

1. Spousal Witness Privilege/Spoual Immunity
   
   • applies only to crim cases–spounse cannot be compelled to testify against defendant spouse
   • spouse holds the privilege
   • Exception–crimes against a child or the spouse testifying–must testify
2. Spousal Confidence Privilege/Pillow Talk
   
   • in civil or criminal, a spouse’s confidential communications to his or her spouse are protected
   • Held by the communicating spouse
   • Exception–crimes against a child or the spouse testifying–must testify

• Only applies to statements coming during the marriage

Question 10

Judicial Notice

Answer 10

1) no evaluative statements
2) judge has to give parties notice nad opportunity to object before taking judicial notice
3) judge instructs jury in civil cases–must accept as conclusive
4) judge instructs jury in crim case–may accept as conclusive

Question 11

GA Privilige Distinctions

Answer 11

• Recognizes all basic ones: A/c, mental health, clergy-church, marital, spousal witness, informant, self-incrimination
• Assertion of privilige cannot be used against him in crim; can be used aginst him in civil
• no physician-patient
• discussions of medical review boards and peer review committes privileged
• Accountant & client in audit
• qualified for statements made to news gatherers