Privilege

Question 1

What are three elements for the attorney-client privilege?

Answer 1

1. confidential communication
2. between attorney and client
3. for the purposes of getting or giving legal services

Question 2

What 3 things does the attorney-client privilege require

Answer 2

1. right parties
2. right setting
3. right purpose

Question 3

Atty-client privilege

Who are the “right parties?”

Answer 3

1. Attorney
2. client
3. staff of attorney and
4. necessary helpers

Question 4

atty-client privilege

Who does not qualify as a “right party”

Answer 4

client’s spouse, kids, etc.

Question 5

atty-client privilege

What is the right setting?

Answer 5

a confidential setting - expectation of confidentiality

Question 6

atty-client privilege

What does the right purpose require?

Answer 6

getting/giving legal services

Question 7

When does the attorney-client privilege start and end?

Answer 7

Starts at the initial consultation and only ends when a client allows disclosure.

The client is the one who turns the privilege on/off

Question 8

What are the 5 exceptions to the attorney client privilege?

Answer 8

1. lack of confidentiality (wrong parties/wrong setting)
2. Wrong purpose
3. Client waives the privilege
4. Crime/fraud exception
5. Attorney services are at issue

Question 9

atty-client privilege

What is required to trigger the crime/fraud exception?

Answer 9

1. privilege holder (client) intended to commit the crime AND
2. privilege holder tried to enlist atty’s help in committing

Question 10

What is the spousal testimonial privilege?

Answer 10

Right not to snitch on your spouse

Question 11

Can you invoke the spousal testimonial privilege after you get divorced?

Answer 11

NOPE

Question 12

Can one spouse prevent the other from invoking the spousal testimonial privilege?

Answer 12

NOPE. the privilege is unilateral, and the witness alone decides if they want to invoke the privilege or waive it.

Question 13

What is the marital communications privilege?

Answer 13

Right not to talk about confidential communications made between spouses during marriage

Question 14

Can you invoke the marital communications privilege after you get a divorce?

Answer 14

Yes

Question 15

Can one spouse require another spouse spouse to invoke the marital communications privilege?

Answer 15

Yes! This privilege requires bilateral waiver.

Question 16

Regarding the Marital communications privilege, can you report what you SAW?

Answer 16

Yes. You can report what you saw, but you cannot report what your spouse communicated to you.

Question 17

What are two exceptions to the marital communications privilege?

Answer 17

1. tort committed against the witness spouse
2. crime committed against the witness spouse

Question 18

What is the work product doctrine?

Answer 18

Protects against disclosure of materials prepared in anticipation of litigation (by attorney, attorney’s staff, etc.)

Question 19

What is an exception to the Work product doctrine

Answer 19

If a party shows a substantial need for the work-product

Question 20

What work product is NEVER subject to the substantial need exception to the atty work-product doctrine?

Answer 20

The attorney’s private mental impressions

Question 21

For federal matters, where does privilge law come from?

Answer 21

common law of the circuit

Question 22

For state claims in federal court, for which three things do we use state law?

Answer 22

1. competence
2. presumption
3. privilege

Question 23

What are waivers limited to?

Answer 23

The language in the waivers

e.g., federal government and corporation can contract to limit use of documents in litigation. (No additional implied immunity).