TESTIMONIAL PRIVILEGES

Question 1

INTRODUCTION

Answer 1

• Testimonial privileges permit a person to refuse to disclose, & prohibit others from disclosing, certain confidential info in judicial proceedings.

Question 2

Exam Approach

Answer 2

• On the bar, privileges are usually tested in a straightforward manner & you’ll apply general rules covered.
• However, you may be asked to determine whether federal/ state privilege law should be applied in a particular case in fed ct.
• The answer to this question is as follows:
  (1) In a federal court case arising under federal substantive law (all civil cases arising under Constitution/federal statutes, & all criminal cases), privileges are governed by federal CL.
  (2) In a fed ct case based on diversity jurisdiction, where state substantive law applies to parties’ claims & defenses (the Erie doctrine, covered in Federal Civil Procedure), fed ct must apply privilege law of the state.

Question 3

Federal Common Law Privileges

Answer 3

• The Federal Rules have no specific privilege provisions; privilege in federal cts is governed by CL principles as interpreted by the cts.
• Fed cts currently recognize the following major privileges:
  (1) Attorney-client privilege;
  (2) Spousal immunity;
  (3) Privilege for confidential marital communications;
  (4) Psychotherapist/social worker-client privilege;
  (5) Clergy-penitent privilege; and
  (6) Governmental privileges
• Other privileges not listed above (such as physician-patient, accountant-client, professional journalist) are only recognized by certain states.

Question 4

Persons Who May Assert Privilege

Answer 4

• A privilege is personal to holder; meaning, it generally
  can be asserted only by holder.
• Sometimes the person w/ whom the confidence was shared may assert privilege on holder’s behalf.

Question 5

Confidentiality

Answer 5

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

Question 6

Comment on Privilege Forbidden

Answer 6

• Neither counsel for the parties nor judge may comment
  on someone’s claim of privilege

Question 7

Waiver

Answer 7

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

Question 8

Tip

Answer 8

Privilege is not waived when someone wrongfully discloses info w/o privilege holder’s consent. Similarly, waiver by one joint holder does not affect right of other holder to assert privilege.

Question 9

Eavesdroppers

Answer 9

• Privilege based on confidential communications is not destroyed b/c it was overheard by someone whose presence is unknown to parties.
• Under the modern view, in absence of negligence by person claiming privilege, even eavesdropper would be prohibited from testifying.

Question 10

ATTORNEY-CLIENT PRIVILEGE

Answer 10

• Communications between an attorney & client, made during professional consultation, are privileged from disclosure.
• The privilege applies to:
  (1) Confidential communications,
  (2) Between attorney & client (or reps of either),
  (3) Made during professional legal consultation,
  (4) Unless privilege is waived/exception is applicable
  -The important elements of this privilege are discussed in more detail below.

Question 11

Attorney-Client Relationship

Answer 11

• An “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 professional services of attorney at the time of the communication.
• Disclosures made before attorney accepts/declines the case are covered by privilege.

Question 12

Corporate Clients

Answer 12

• Corporations are “clients” statements made by corporate officials/employees to an attorney are protected if employees were authorized/directed by corporation to make such statements.

Question 13

Confidential Communication

Answer 13

• Privilege applies to communications only; it does not apply to underlying info, pre-existing docs, or physical evidence.
• To be protected, communication must be confidential (not intended to be disclosed to 3rd parties); communications made in known presence & hearing of a stranger are not privileged.
• However, reps of attorney/client may be present w/o destroying privilege.

Question 14

Communications Through Agents

Answer 14

• Communications made to 3rd persons (admin assistants, messengers, or accountants) are confidential & covered by privilege if necessary to transmit info between attorney & client.

Question 15

Tip

Answer 15

A favorite exam topic involves communications
between client & doctor during an examination
made at attorney’s request (this is usually done to help attorney evaluate extent of client’s injuries). Be careful—the physician-patient privilege (infra) does not apply because no treatment is contemplated.
However, attorney-client privilege will apply to these
communications between client & consulting doctor, if doctor is not called as testifying expert.

Question 16

Joint Client Rule—No Privilege Where Attorney Acts
for Both Parties

Answer 16

• If 2/more clients w/ common interest consult same
  attorney, their communications w/ attorney concerning common interest are privileged as to 3rd parties.
• But if joint clients later have a dispute w/ each other
  concerning common interest & one client sues the
  other, privilege does not apply as between them.

Question 17

Professional Legal Consultation

Answer 17

• Primary purpose of communication must be to obtain/render legal services, not to give business/ social advice.

Question 18

.

Answer 18

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Question 19

Client Holds Privilege

Answer 19

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

Question 20

Privilege Applies Indefinitely

Answer 20

• Attorney-client privilege applies indefinitely.
• It continues after attorney-client relationship ends & even after client’s death.
• Client’s estate reps has power to waive privilege after client’s death.

Question 21

Exceptions

Answer 21

There is no privilege:
(1) If attorney’s services were sought to aid in planning/commission of something client should have known was a crime/fraud
(2) Where client has put legal services at issue in the
case
(3) For a communication relevant to an issue of breach of duty in a dispute between attorney & client
(4) Regarding a communication relevant to an issue between parties claiming through same deceased client

Question 22

Attorney’s Work Product

Answer 22

• Although docs prepared by an attorney for their own use in a case are not protected by privilege, they are not subject to discovery except in cases of necessity.

Question 23

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

Answer 23

• Generally, a voluntary disclosure of privileged material operates as a waiver of the attorney-client privilege/work product protection only for disclosed
  material.
• Undisclosed privileged material is subject to the
  waiver only if
  (1) waiver was intentional,
  (2) disclosed & undisclosed material concern same subject matter, and
  (3) material should be considered together to avoid
  unfairness.
• No waiver if disclosure was unintentional & holder took reasonable steps to prevent disclosure & rectify error.

Question 24

PHYSICIAN-PATIENT PRIVILEGE (STATE PRIVILEGE ONLY): Scope and Applicability

Answer 24

• Most states have adopted a physician-patient privilege (no such privilege under FCL)
• Confidential info acquired by a physician is privileged if:
  (1) There was a professional relationship between physician & patient for purposes of medical treatment;
  (2) Info was acquired for purpose of diagnosis/ treatment; and
  (3) Infor was necessary for diagnosis/treatment
  (nonmedical information—ex. details of who was
  at fault—is not privileged)
• Privilege belongs to patient, & patient may decide to claim/waive it.
• If patient is unavailable at time of trial, physician may claim privilege on their behalf.
• Note: There is also a broader privilege for psychotherapists (including physicians/other professionals certified to diagnose/treat mental & emotional conditions)

Question 25

Tip

Answer 25

Remember that the state law of privilege is applied
in diversity actions. If an exam question states that
the case is a diversity action, then the general physician-
patient privilege will be available even though it is in
federal court, and you should apply the majority rules discussed here.

Question 26

Main Exceptions

Answer 26

• Physician-patient privilege does not apply (or is impliedly waived) if:
  (1) Patient puts their physical condition in issue (ex. in a personal injury lawsuit);
  (2) Physician’s assistance was sought to aid wrongdoing (ex. to help patient commit a crime/tort);
  (3) Communication is relevant to an issue of breach of
  duty in a dispute between physician & patient (ex. medical malpractice case);
  (4) Patient agreed by K (ex. in an insurance policy) to waive privilege; or
  (5) It is a federal case applying federal law of privilege (because, again, federal courts do not recognize a general physician-patient privilege)

Question 27

Criminal Proceedings

Answer 27

• In some states, privilege applies in both civil & criminal cases.
• In a number of others, it cannot be invoked in criminal cases generally.
• In still other states, privilege is denied in felony cases, and in a few states, it is denied only in homicide cases.

Question 28

Tip

Answer 28

Remember that when a psychiatrist is the doctor
involved, the applicable privilege is the psychotherapist-
client privilege (discussed next), which is
more widely accepted in all proceedings than is the physician-
patient privilege.

Question 29

PSYCHOTHERAPIST/SOCIAL WORKER-PATIENT PRIVILEGE

Answer 29

• Fed cts recognize a privilege for confidential communications between a psychotherapist (psychiatrist/psychologist) or licensed social worker & their patient/client.
• Privilege operates in same manner as attorney-client privilege (supra)
• Ex. the patient/client must have intended their communication to be confidential, & purpose of communication must have been to facilitate professional services.
• Similar to the privileges discussed above, there is no privilege where the patient puts their mental condition at issue in the case (ex. by filing a claim for emotional injuries/asserting an insanity defense).

Question 30

PRIVILEGES RELATING TO MARRIAGE

Answer 30

There are 2 distinct spousal privileges: the testimonial privilege
(commonly known as “spousal immunity”) and the privilege
for confidential marital communications

Question 31

Spousal Testimonial Privilege (Spousal Immunity)—Criminal Cases Only

Answer 31

• When privilege of spousal immunity is invoked, a married person whose spouse is a D in a criminal case may not be called as a witness by prosecution.
• Moreover, a married person may not be compelled to testify against legal interests of their spouse in any criminal proceeding, regardless of whether spouse is the D.
• There must be a valid marriage for privilege to apply, & privilege lasts only during marriage (even if events at issue took place before marriage).
• In other words, what matters is whether spouses are married at the time of trial.
• The purpose of privilege is to protect harmony of an existing marriage.

Question 32

Witness-Spouse Holds Privilege

Answer 32

• In fed ct, privilege belongs to witness-spouse.
• This means that witness-spouse cannot be compelled to testify, but may choose to do so.

Question 33

Privilege for Confidential Marital Communications

Answer 33

• In any civil/criminal case, confidential communications between spouses during a valid marriage are privileged.
• Either spouse can refuse to disclose communication/ prevent any other person from doing so.
• For privilege, marital relationship must exist when communication is made.
• Divorce will not terminate privilege, but communications after divorce are not privileged.
• The rationale for the privilege is to encourage candor between spouses.

Question 34

Confidentiality

Answer 34

• Private communications between spouses are generally presumed to be confidential, but this is not always the case.
• The communication must be made in reliance upon
  the intimacy of the marital relationship.
• Threats/abusive language are not privileged.
• Furthermore, communications made in the known presence of 3rd party are not privileged (though statements may still be confidential & privileged if made in presence of young children living in the home).

Question 35

When Neither Marital Privilege Applies

Answer 35

Neither privilege applies in the following situations:
(1) Communications/acts in furtherance of a future joint crime/fraud;
(2) In legal actions between spouses; or
(3) In cases where a spouse is charged w/ a crime against testifying spouse/either spouse’s children

Question 36

OTHER PRIVILEGES

Answer 36

You are most likely to see bar exam questions on the privileges
that were already covered: the attorney-client privilege,
the state physician-patient privilege (and when it applies in
federal court), the psychotherapist-patient privilege, and the
2 spousal privileges. However, there are a few other privileges
you should be aware of.

Question 37

Clergy-Penitent Privilege

Answer 37

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. For
example, the privilege will apply only if the penitent made the
communication to the clergy member in the clergy member’s
capacity as a spiritual adviser.

Question 38

Privilege Against Self-Incrimination

Answer 38

Under the 5th Amendment to the Constitution, a witness
cannot be compelled to testify against themselves. Any
witness compelled to appear in a civil or criminal proceeding
may refuse to give an answer that ties the witness to the
commission of a crime. This privilege is covered in more
depth in your Criminal Procedure materials.

Question 39

Governmental Privileges

Answer 39

Official information not otherwise open to the public may
be privileged. The government also holds a privilege that
protects the identity of an informer (someone who has
provided the government with details of a potential crime).
The privilege is waived if the informer’s identity is voluntarily
disclosed by a privilege holder (an appropriate government
representative).

Question 40

Accountant-Client Privilege (State Only)

Answer 40

Many states recognize a privilege for statements made to an
accountant, and the elements of this privilege are very similar
to the attorney-client privilege. However, there is no federal
accountant-client privilege.

Question 41

Professional Journalist Privilege (State Only)

Answer 41

There is no constitutional right for a professional journalist to
protect their source of information; only certain states recognize
such a privilege.