Privileges Flashcards
(43 cards)
FRE federal privileges
FRE–recognizes all privileges that were recognized under federal common law
1) Attorney-client (only one explicitly in FRE)
2) Psychiatrist/psychotherapist privilege
3) Clerical/clergy-penitent privilege
4) Marital privileges (2 types: marital communications AND spousal immunity
NOT doctor-patient (not common law–but recog. by statute in all 50 states, and Erie applies in diversity)
Rule 501
“The common law–as interpreted by the United State courts in the light of reason and experience [i.e. fed common law] governs a claim of privilege unless [the Constitution, a fed. statute, or SCOTUS decision] provides otherwise
But in a civil case, state law governs privilege regarding a claim or defense for which state law applies[.][i.e. diversity jx]
General Rule re: Privilege
Unless a privilege applies, no right to refuse to 1) be a witness; 2) disclose any matter; 3) refuse to produce an object or writing
Rule 502
Attorney-Client Privilege
Attorney-Client Privilege
1) Communications
2) In confidence
3) Between privileged persons
4) For the purpose of obtaining legal advice
Protected as Atty-Client Communications
-Oral statements
-Written Statements
-Communicative Acts (meant to communicate info–ex. roll up sleeve to show tattoo
Would disclosure reveal the content of atty-client communication?
Is fact known only through priv. comm?
Not protected as communications
-Observations (saw tattoo because defendant had short sleeves)
-Facts within knowledge of the witness (“was the light red,” asked of client)
-Client ID, fact consulted, fee, etc, UNLESS reveal itself incriminating (saw tax fraud lawyer before even arrested)
Attorney-client “in confidence” exceptions
Non lawyer necessary for communication
Person who needs to know–ex. translator, essential employee
Common interest alone NOT enough
In confidence
Q–reasonable expectation of privacy?
Lawyer re: Atty-Client
Person authorized OR reasonably believed to be authorized to be able to practice law in any state or nation (ex. if defendant honestly believed person in suit in courthouse was lawyer)
Partial Waiver
If fail to assert privilege w/in reasonable time, partial waiver to extent necessary to allow reasonable scrutiny of disclosed info
Atty Requested visit to doctor
NOT protected by doctor-patient (not for purpose of medical treatment)
IS PROTECTED by attorney-client–stepping into shoes of client (same as “tell your story to my paralegal, she’ll give it to me”)
Blanket Waiver
ONLY IF
1) Intentional AND
2) Subject matter of disclosed and undisclosed info the same
Inadvertent Waiver/Non-Waiver
Inadvertent waiver = not waiver IF
1) No intent to waive
2) Took reasonable steps to protect info
AND
3) Took timely steps to remedy
Attorney-Client Exceptions
Exception = never any privilege
1) Crime-Fraud
2) Suits Between Atty and Client
3) Co-Clients
4) Fiduciary Exception
Crime-Fraud Exception
No privilege if
1) Consulting lawyer for purpose of committing/aiding crime/fraud
OR
2) Use lawyer’s services to commit/assist crime/fraud
MUST be contemplated or ongoing
Co-Clients and Atty-Client
No privilege if joint representation AND subsequent suit re: subject matter
BUT
Either client can assert privilege v. 3d party, even if other waives
Work-Product Doctrine
1) Tangible things
2) Produced by/at direction of party
3) In anticipation of litigation
Work-Product Exception
Other party MUST SHOW
1) Substantial hardship
AND
2)No other way of obtaining evidence
BUT mental impressions always protected
Doctor/Physician-Patient Privilege
Does not exist under the FRE (but all 50 states have by statute)
1) Confidential communications
2) Between physician (person authorized to practice medicine) and patient
3) Patient seeking diagnosis/treatment for a medical condition (ex. if told to go by attorney–atty-client priv, but not doctor/patient)
Psychotherapist-Patient Privilege
Unlike physician-patient, does exist under fed. common law and the FRE
1)Confidential communications
2) Between psychotherapist and patient
3) For the purposes of seeking diagnosis/treatment for a mental or emotional condition (includes addiction)
Psychotherapist
1) Person authorized to practice medicine or r. believed by patient to be, in any state AND engaged in treatment/diagnosis of mental or emotional condition
OR
2) Person licensed or certified as a “psychologist” under state law AND engaged in treatment/diagnosis of mental/emotional condition
“Psychologist/psychotherapist” very broadly defined–includes licensed social workers, psychologists, psychiatrists, mental health specialists, marriage counselors
DOES NOT include educational/vocational consultants
Exceptions to doctor/psychotherapist privilege
1) Statements made re: commitment proceedings
2) Statements re: court ordered examinations
3) Future crime/fraud (applies to basically every priv.)
4) When condition is part of claim (party waived by putting at issue–ex. malpractice, personal injury)
Confidentiality re: doctor/psychotherapist privilege
Not intended to be disclosed to third persons, EXCEPT
1) Persons present to further the interest of the patient in the consultation/exam
2) Persons reasonably necessary for transmission
OR
3) Persons participating in the diagnosis and treatment under the direction of the physician/psychotherapist (includes patient family, vs. atty-client)
