Privileges

Question 1

What privilege law applies

Answer 1

1. An action where state law applies, state law applies with respect to privileges.
2. In an action where federal law applies, federal common law applies with respect to privileges

Question 2

Commonly tested privileges

Answer 2

• Attorney client.
• Spousal privileges.
• Psychotherapist/Social Worker client privilege

Question 3

Attorney-Client Privilege

Answer 3

1. Covers confidential communications between attorney and cient or a rep of other made during professional legal consultation
2. Privileged by disclosure unless waived by the client or an exception applies. Survives client’s death

Question 4

Attorney-Client Privilege

Confidential communications

Answer 4

1. Client must intend confidentiality.
2. No privilege if clt knows a 3^rd party listenint in, or clt tells atty to disclose to 3^rd party
3. Eavesdropper does not break this privilege

Question 5

Attorney-Client Privilege: Communications limitaton

Answer 5

1. Privilege does not cover physical evidence or physical observations only applies to communications.
   
   1. E.g. party must respond if asked what he did with car keys/must produce car keys

Question 6

Attorney-Client Privilege: Professional Legal relationship

Answer 6

• Client intends to establish a professional legal relationship (fee negotiations are covered as well).
• Predominantly legal services must be sought—not business or social advice)—e.g. client asking where nearest bar is not covered

Question 7

Attorney-Client Privilege: Joint client rule

Answer 7

If two or more clients with common interests consult the same attorney, their communications with counsel about the common interest are privileged as to 3rd parties. But if the joint clients later have a dispute with each other about the common interest, the privilege does not apply as between them.

Question 8

Exceptions to Attorney-Client Privilege

Answer 8

1. Future crime or fraud
   
   1. E.g. client asks atty to help hold assets
2. Clt makes an issue of legal advice
   
   1. E.g. clt on trial for tax evasion and claims ot have been acting on legal advice
3. Dispute between atty and clt
   
   1. E.g. legal malpractice/fee dispute

Question 9

The two different spousal privileges

Answer 9

• Spousal Immunity
• Confidential Marriage Communications Privilege

Question 10

Spousal immunity

Answer 10

1. One spouse cannot be forced to give adverse testimony against another in a criminal case.
   
   1. Only applies in criminal cases: one spouse cannot be compelled to testify against the defendant spouse. (to promote marital harmony
   2. Privilege belongs to the testifying spouse
   3. Spouses must be married at the time of the trial/proceeding, but privilege applies to matters that pre-date the mrg
   4. Protects against all adverse testimony

Question 11

Confidential marital communications privilege

Answer 11

1. Spouse is not required, and is not allowed without other spouse’s consent, to disclose a confidential communication made by one to the other during the mrg. Both spouses hold the privilege
   
   1. Spouses must be mrd at the time of the communication, not the trial
      
      1. Later divorce does not matter
   2. Protects only confidences, not the spouses own observations, physical evidence, etc…
   3. Holder of the privwlege is either spouse
   4. Privelege applies in all cases, civil and criminal.

Question 12

Exceptions to both spousal privileges

Answer 12

1. Communications or acts in furtherance of future criminal or fraud (no Bonnie and Clyde)
2. Communications or acts destructive of family, e.g. spousal or child abuse
3. One spouse suing the other

Question 13

Psychotherapist/social worker-client privilege

Answer 13

• The client has a privilege against disclosure of confidential information acquired by the psychotherapist/scial worker in a professional relationship entered into for the purpose of getting trtmt

Question 14

Psychotherapist/social worker-client privilege elements

Answer 14

1. Pt must be seeking trtmt
2. Information acquired must be confidential and necessary to facilitate trtmt

Question 15

Psychotherapist/social worker-client privilege waiver

Answer 15

• Privilege is waived if pt sues the psychotherapist, or if the pt puts his own condition at issue (e.g. pleads insanity in a criminal case)

Question 16

Federal Physician-patient privilege

Answer 16

• There is no federal physician-patient privilege.
• However, many states recognize this privilege

Question 17

Physician-patient privilege in VA

Answer 17

• VA recognizes a general physician patient privilege.
• However, physician-patient and psychotherapist-patient privileges are available in civil cases only.