Privileges

Question 1

What are the two kinds of spousal privileges?

Answer 1

(1) Testimonial

(2) Confidences

Question 2

Spousal Testimonial Privilege:

(1) What does it protect?
(2) Who holds the privilege?
(3) How long does the privilege last?
(4) What if the spouses are engaged in a joint crime?

Answer 2

(1) Protects a spouse’s right not to testify against the other
(2) The testifying spouse
(3) Only as long as the marriage
(4) States are split as to whether a spouse engaged in a crime with the other spouse can invoke the testimonial privilege.

Question 3

Spousal Confidences Privilege:

(1) What does it protect?
(2) Who holds the privilege?
(3) How long does the privilege last?
(4) What if the spouses are engaged in a joint crime?

Answer 3

(1) Private communications between spouses during marriage
(2) Both spouses
(3) Forever, even after death or end of the marriage
(4) Privilege usually won’t apply

Question 4

What are the elements of the attorney-client privilege?

Answer 4

(1) Communication
(2) Between a client and a lawyer
(3) That is confidential
(4) And concerns legal advice

Question 5

Is pre-existing physical evidence covered by the attorney-client privilege?

Answer 5

NOT IF obtained by the lawyer.
BUT IF the lawyer just knows about the evidence (where it is, who has it, etc.) and never obtains it, then the lawyer doesn’t have to disclose it.

Question 6

If a client tells his lawyer where he hid the murder weapon, but the lawyer never goes to retrieve it, does the lawyer have to disclose the weapon, its location, or the fact that his client told him where it is?

Answer 6

No. IF the lawyer retrieves the weapon, then he has to disclose it. (But the communications from the client are still privileged.)

Question 7

Does non-verbal communication that the lawyer observes count as privileged communication under the attorney-client privilege? e.g., a lawyer notices that his client is drunk, unkempt, competent, etc.

Answer 7

No, not privileged. e.g. U.S. v. Kendrick (lawyer had to disclose that his client was competent during their meetings, which contradicted the client’s defense of incompetence)

Question 8

What are the two tests for determining which individuals at an organization are “clients” for purposes of the attorney-client privilege?

Answer 8

(1) Subject-matter Test (Upjohn)

(2) Control Group Test

Question 9

If a client drafts a document that’s intended to be distributed publicly, and then decides to keep the draft private and give it to his lawyer, is the draft “confidential” communication protected by the attorney-client privilege?

Answer 9

Some cases have held that the draft would NOT be privileged. Intent matters when it comes to the communication.

Question 10

What are the three main exceptions of the attorney-client privilege?

Answer 10

(1) Identity of client, or fee-payer
(2) Work Product
(3) Crime/Fraud

Question 11

What are the exceptions to the Identity (client, fee-payer) exception to attorney-client privilege? I.e., identity of the client or fee-payer IS privileged when?

Answer 11

Privileged IF disclosing the client or fee-payer’s identity would:

(1) Implicate the client in the very issue for which they originally sought legal advice
(2) Supply the last link in the state’s case and would surely implicate the client
(3) Be tantamount to disclosing otherwise protected confidential information

Question 12

Who holds the attorney-client privilege?

Answer 12

The client.

Question 13

What are the consequences of intentional waiver of privileged information covered by the attorney-client privilege?

Answer 13

Have to disclose other communications:
(1) concerning the same subject
AND
(2) whatever in fairness the other party is entitled to.

Question 14

When can a party who inadvertently discloses privileged attorney-client communications take back the information?

Answer 14

ONLY IF:
(1) The privilege-holder took reasonable steps to prevent the disclosures
AND
(2) The privilege-holder took reasonable steps to rectify.

Question 15

What does the psychotherapist-patient privilege protect?

Answer 15

Communications between a psychotherapist and patient related to mental health treatment

Question 16

Does the psychotherapist-patient privilege protect communications with a dangerous patient (e.g. someone who says they are going to harm others)?

Answer 16

Depends on the state. Some states say no.

Question 17

If a defendant affirmatively uses a mental health diagnosis to support their defense, can the defendant invoke psychotherapist-patient privilege regarding their communications?

Answer 17

Depends on the state, but most likely not.

Question 18

Does the privilege against self-incrimination apply to organizations?

Answer 18

No, just individuals.

Question 19

Does the privilege against self-incrimination apply against civil liability?

Answer 19

No, only criminal liability.

Question 20

What are some common elements of the subject-matter test for A-C privilege?

Answer 20

(1) Communication was made for the purpose of securing legal advice;
(2) The employee making the communication did so at the direction of his corporate superior;
(3) The superior made the request so that the corporation could secure legal advice;
(4) The subject matter of the communication is within the scope of the employee’s corporate duties; and
(5) The communication is not disseminated beyond those persons who, because of the corporate structure, need to know of its contents.

Question 21

What employees are covered by the control group test for A-C privilege?

Answer 21

Employees of any level who could substantially control/direct counsel, and also take action in response to directions from counsel.