Privileges

Question 1

How do you know if state or federal privilege law applies?

Answer 1

Fed - Cases arising under federal law

State - Diversity jurisdiction cases

Question 2

What are the elements of the attorney-client privilege?

Answer 2

1. Confidential communications
2. Between atty / client (or agent of either)
3. Made during professional, legal consultation
4. Unless waived by CLIENT
5. Or an exception applies

Question 3

What is a confidential communication?

Answer 3

Any communication made when the client intends confidentiality and reasonable expects confidentiality

Question 4

What is the joint client rule?

Answer 4

If both clients share an interest and consult the same attorney, communications are privileged as to third parties. It does not apply to a dispute between the two clients.

Question 5

How is the attorney-client privileged waived?

Answer 5

Voluntarily by the CLIENT

Question 6

Does waiver as to some communications waive the privilege to others?

Answer 6

Yes, when:

1. Disclosure is intentional
2. Disclosed / Undisclosed communications are on the same subject
3. Fairness requires

Question 7

Can an inadvertent waiver be revoked?

Answer 7

Yes, if the privilege holder took reasonable steps to prevent disclosure and takes reasonable steps to correct the error

Question 8

What is not covered by the attorney-client privilege?

Answer 8

1. Aid sought for future crimes / fraud
2. Client puts legal advice in issue
3. Attorney-client dispute

Question 9

What is covered by the physician-patient privilege?

Answer 9

1. Confidential communications that patient told physician
2. For the purpose of diagnosis or treatment of a medical condition
3. Applies also to psychotherapy

Question 10

Is the physician-patient privilege grounded in the common law?

Answer 10

No, it must be created by statute

Question 11

When is the physician-patient privilege lost?

Answer 11

When patient expressly or impliedly puts their medical health in issue

Question 12

When is the physician-patient privilege waived?

Answer 12

When patient says something in the presence of third party

Question 13

What is the spousal privilege? **

Answer 13

A witness spouse may not be compelled to testify about anything against a defendant spouse.

NY does not recognize the spousal privilege

Question 14

Who hold the spousal privilege?

Answer 14

The witness spouse (can be waived over D spouse’s objection)

Question 15

Must the parties still be married at the time of trial?

Answer 15

Yes - remember, the purpose is to protect marital harmony

Question 16

What is the confidential communications privilege?

Answer 16

A spouse may not testify regarding confidential communications made to each other during the marriage without consent

Question 17

Who holds the confidential communications privilege?

Answer 17

Both spouses (and either can invoke)

Question 18

Is conduct covered by the confidential communications privilege?

Answer 18

Yes, if the conduct was meant to communicate something to the other spouse

Question 19

How can the privilege be waived?

Answer 19

By making a communication in the presence of a third party (must know or reasonably know that a third party will hear it)

Question 20

What are the exceptions to the confidential communications privilege?

Answer 20

1. Communications in furtherance of a jointly perpetrated future crime / fraud
2. Communications / acts destructive of the family unit
3. No privilege in civil litigation between the spouses themselves