1
Q
INTRODUCTION
A
- Testimonial privileges permit a person to refuse to disclose, & prohibit others from disclosing, certain confidential info in judicial proceedings.
2
Q
Exam Approach
A
- 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.
3
Q
Federal Common Law Privileges
A
- 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.
4
Q
Persons Who May Assert Privilege
A
- 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.
5
Q
Confidentiality
A
- To be privileged, a communication must be shown/ presumed to have been made in confidence (not intended to be disclosed to third parties).
6
Q
Comment on Privilege Forbidden
A
- Neither counsel for the parties nor judge may comment
on someone’s claim of privilege
7
Q
Waiver
A
- 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.
8
Q
Tip
A
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.
9
Q
Eavesdroppers
A
- 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.
10
Q
ATTORNEY-CLIENT PRIVILEGE
A
- 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.
11
Q
Attorney-Client Relationship
A
- 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.
12
Q
Corporate Clients
A
- 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.
13
Q
Confidential Communication
A
- 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.
14
Q
Communications Through Agents
A
- Communications made to 3rd persons (admin assistants, messengers, or accountants) are confidential & covered by privilege if necessary to transmit info between attorney & client.
15
Q
Tip
A
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.
16
Q
Joint Client Rule—No Privilege Where Attorney Acts
for Both Parties
A
- 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.
17
Q
Professional Legal Consultation
A
- Primary purpose of communication must be to obtain/render legal services, not to give business/ social advice.
18
Q
.
A
.
19
Q
Client Holds Privilege
A
- 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.
20
Q
Privilege Applies Indefinitely
A
- 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.
21
Q
Exceptions
A
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
22
Q
Attorney’s Work Product
A
- 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.
23
Q
Limitations on Waiver of Attorney-Client
Privilege and Work Product Rule
A
- 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.
24
Q
PHYSICIAN-PATIENT PRIVILEGE (STATE PRIVILEGE ONLY): Scope and Applicability
A
- 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)
25
Tip
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.
26
Main Exceptions
- 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)
27
Criminal Proceedings
- 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.
28
Tip
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.
29
PSYCHOTHERAPIST/SOCIAL WORKER-PATIENT PRIVILEGE
- 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).
30
PRIVILEGES RELATING TO MARRIAGE
There are 2 distinct spousal privileges: the testimonial privilege
(commonly known as “spousal immunity”) and the privilege
for confidential marital communications
31
Spousal Testimonial Privilege (Spousal Immunity)—Criminal Cases Only
- 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.
32
Witness-Spouse Holds Privilege
- In fed ct, privilege belongs to witness-spouse.
- This means that witness-spouse cannot be compelled to testify, but may choose to do so.
33
Privilege for Confidential Marital Communications
- 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.
34
Confidentiality
- 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).
35
When Neither Marital Privilege Applies
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
36
OTHER PRIVILEGES
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.
37
Clergy-Penitent Privilege
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.
38
Privilege Against Self-Incrimination
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.
39
Governmental Privileges
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).
40
Accountant-Client Privilege (State Only)
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.
41
Professional Journalist Privilege (State Only)
There is no constitutional right for a professional journalist to
protect their source of information; only certain states recognize
such a privilege.
