26.4 Privileges: Attorney-Client, Spousal, Psychotherapist & Other Privileges

26.4 Privileges: Attorney-Client, Spousal, Psychotherapist & Other Privileges

Privileges exclude reliable evidence to protect relationships and interests society values. NCBE's outline tests the spousal, attorney-client, and physician or psychotherapist privileges and "other privileges." For each claim, identify the governing law, whether the communication fits the privilege, who holds it, and whether it has been waived or falls within an exception.

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Evidentiary privileges operate as exceptions to the fundamental judicial principle that the public has a right to every person's evidence. Privileges suppress truth to protect vital, confidential relationships deemed essential to society. Unlike ordinary rules of evidence that promote truth-seeking, privileges exclude reliable evidence to safeguard societal values.

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Governing Law: FRE 501 & The Erie Doctrine

Under FRE 501, Congress deliberately chose not to codify specific privilege rules. Instead, Rule 501 establishes a choice-of-law framework:

                         ┌──────────────────────────────────────────────┐
                         │   What is the Basis of Federal Subject       │
                         │   Matter Jurisdiction?                       │
                         └──────────────────────┬───────────────────────┘
                                                │
                       ┌────────────────────────┴────────────────────────┐
                       ▼                                                 ▼
           ┌───────────────────────┐                         ┌───────────────────────┐
           │   FEDERAL QUESTION    │                         │  DIVERSITY OF         │
           │   OR CRIMINAL CASE    │                         │  CITIZENSHIP (CIVIL)  │
           └───────────┬───────────┘                         └───────────┬───────────┘
                       │                                                 │
                       ▼                                                 ▼
           ┌───────────────────────┐                         ┌───────────────────────┐
           │  FEDERAL COMMON LAW   │                         │   STATE PRIVILEGE     │
           │  governs privilege    │                         │   LAW GOVERNS         │
           │  (FRE 501)            │                         │   (Erie Doctrine)     │
           └───────────────────────┘                         └───────────────────────┘

• Federal Criminal & Federal Question Cases: Privileges are governed by the principles of the common law as interpreted by the courts of the United States in the light of reason and experience (Federal Common Law).
• Diversity Jurisdiction Civil Actions: In civil actions where state law supplies the substantive rule of decision (Erie doctrine), state law governs privilege.

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The Attorney-Client Privilege

The attorney-client privilege is the oldest common-law privilege for confidential communications.

Core Elements

The privilege protects:

1. A Communication: Oral statements, written correspondence, emails, or text messages. It does not protect underlying facts, preexisting business records, or physical evidence.
2. Confidentiality: Made with a reasonable expectation of confidentiality. The presence of unnecessary third parties destroys confidentiality. However, confidential agents of the attorney or client (e.g., paralegals, legal secretaries, translators, consulting accountants under Kovel) do not breach confidentiality.
3. Privileged Persons: Between a client (or prospective client seeking services) and an attorney (or licensed representative authorized to practice law).
4. Legal Purpose: Facilitated for the primary purpose of obtaining or providing legal services or advice (not ordinary business advice, accounting services, or social discussion).

Key Rules Regarding Scope & Duration

• Holder: The client holds the privilege. Only the client can waive it. The attorney must assert the privilege on the client's behalf unless instructed otherwise.
• Survives Death: The attorney-client privilege survives the termination of representation and survives the death of the client (Swidler & Berlin v. United States). An attorney cannot be compelled to disclose confidential statements even after the client has died.

The Corporate Context: Upjohn Co. v. United States

In Upjohn Co. v. United States (1981), the Supreme Court rejected the restrictive "control group" test (which protected only top corporate officers). Under the modern federal rule, corporate communications are privileged if:

1. Communications are made by corporate employees at the direction of corporate superiors;
2. The communications concern matters within the scope of the employee's corporate duties; and
3. The purpose of the communication is to enable corporate counsel to render legal advice to the corporation.

Exceptions to the Attorney-Client Privilege

1. The Crime-Fraud Exception: The privilege does not apply if the client consulted the attorney or used the attorney's services to enable or assist anyone to commit or plan what the client knew or should have known was a future crime or fraud.
   • Critical MBE Distinction: Communications regarding past crimes or completed frauds are fully privileged. The exception applies solely to ongoing or future illegal conduct.
2. Attorney-Client Disputes: Communications relevant to an action between the attorney and client (e.g., malpractice lawsuit, legal fee collection dispute, ineffective assistance of counsel claims).
3. Joint Clients: If two or more clients retain the same attorney regarding a matter of common interest, their communications are privileged against third parties. However, in subsequent civil litigation between the joint clients, neither client can assert the privilege against the other.
4. Claimants Through Same Deceased Client: Communications relevant to disputes between parties who both claim through the same deceased client (e.g., probate will contest between heirs).

Inadvertent Disclosure & Subject-Matter Waiver (FRE 502)

Under FRE 502, disclosures made in federal proceedings or to federal agencies are governed by uniform waiver standards:

• Inadvertent Disclosure (FRE 502(b)): Inadvertent disclosure does NOT operate as a waiver if the privilege holder:
  1. Took reasonable precautions to prevent disclosure; and
  2. Promptly took reasonable steps to rectify the error (e.g., invoking clawback procedures).
• Subject-Matter Waiver (FRE 502(a)): An intentional disclosure waives privilege as to undisclosed communications only if:
  1. The waiver was intentional;
  2. The disclosed and undisclosed communications concern the same subject matter; and
  3. They ought in fairness to be considered together (preventing selective, self-serving disclosure).

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The Attorney Work Product Doctrine

Codified in Fed. R. Civ. P. 26(b)(3) and established in Hickman v. Taylor, the work product doctrine protects materials prepared by or for an attorney in anticipation of litigation or for trial.

• Qualified Protection (Fact Work Product): Written witness statements, investigative reports, photographs, and data compilations prepared in anticipation of litigation are protected by qualified immunity. An adverse party can obtain them only by showing substantial need and that equivalent information cannot be obtained without undue hardship.
• Near-Absolute Protection (Opinion Work Product): An attorney's mental impressions, conclusions, opinions, and legal theories receive nearly absolute protection from discovery, even when a party shows substantial need for fact work product.

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Spousal Privileges: Two Distinct Doctrines

The MBE heavily tests the precise distinctions between the Spousal Testimonial Privilege and the Marital Communications Privilege.

┌────────────────────────────────────────────────────────────────────────────────────────┐
│                        SPOUSAL PRIVILEGES: SIDE-BY-SIDE COMPARISON                    │
├──────────────────────────┬─────────────────────────────┬───────────────────────────────┤
│ Feature                  │ Spousal Testimonial         │ Marital Communications        │
│                          │ Privilege                   │ Privilege                     │
├──────────────────────────┼─────────────────────────────┼───────────────────────────────┤
│ **Applicable Cases**     │ CRIMINAL cases only         │ BOTH Civil and Criminal cases │
├──────────────────────────┼─────────────────────────────┼───────────────────────────────┤
│ **Privilege Holder**     │ WITNESS-SPOUSE alone        │ BOTH SPOUSES                  │
│                          │ (Trammel v. United States)  │ (Either spouse can assert)    │
├──────────────────────────┼─────────────────────────────┼───────────────────────────────┤
│ **What It Protects**     │ ANY adverse testimony       │ CONFIDENTIAL COMMUNICATIONS   │
│                          │ against spouse              │ made during marriage only     │
├──────────────────────────┼─────────────────────────────┼───────────────────────────────┤
│ **Scope of Events**      │ Events occurring BEFORE and │ Communications made DURING    │
│                          │ DURING the marriage         │ the marriage only             │
├──────────────────────────┼─────────────────────────────┼───────────────────────────────┤
│ **Marriage Timing**      │ Must be married AT TRIAL;   │ Must be married AT TIME OF    │
│                          │ DIVORCE terminates it!      │ COMMUNICATION; survives!      │
├──────────────────────────┼─────────────────────────────┼───────────────────────────────┤
│ **Acts vs. Words**       │ Covers acts, observations,  │ Protects COMMUNICATIONS only; │
│                          │ words, and everything       │ physical acts NOT protected   │
├──────────────────────────┼─────────────────────────────┼───────────────────────────────┤
│ **Exceptions**           │ Crimes against spouse or    │ Crimes against spouse or      │
│                          │ children; joint criminal    │ children; joint criminal      │
│                          │ participation               │ enterprise                    │
└──────────────────────────┴─────────────────────────────┴───────────────────────────────┘

1. Spousal Testimonial Privilege (Anti-Marital Fact)

• Criminal Proceedings Only: Cannot be asserted in civil litigation.
• Holder is the Witness-Spouse (Trammel v. United States): Under federal common law, the witness-spouse alone holds the privilege. The defendant spouse cannot prevent the witness-spouse from testifying if the witness chooses to do so. Conversely, the court cannot compel an unwilling witness-spouse to testify against their current spouse.
• Scope: Protects against any adverse testimony (acts, observations, or communications), including matters that occurred before the marriage.
• Temporal Rule: Requires a legally valid marriage at the time of trial. If the parties divorce or the marriage is annulled before trial, the testimonial privilege is completely extinguished.

2. Marital Communications Privilege

• Civil and Criminal Cases: Applies in all judicial proceedings.
• Holder: Both spouses hold the privilege. Either spouse can assert the privilege to prevent the other from disclosing, or refuse to disclose, confidential marital communications.
• Scope: Protects confidential communications made between spouses during the marriage. It does not protect observations of physical conduct, acts, or conditions (e.g., observing blood on spouse's clothes or noticing spouse hiding a suitcase is not a communication).
• Temporal Rule: The communication must have been made while the parties were legally married. The privilege SURVIVES divorce and death! A former spouse can assert the privilege years after divorce to block disclosure of confidential communications made during the marriage.

Shared Exceptions to Both Spousal Privileges

Neither spousal privilege applies in:

1. Prosecutions or civil suits for crimes or torts committed by one spouse against the other spouse or against a child of either spouse;
2. Disputes between the spouses (divorce, custody);
3. Communications made in furtherance of joint criminal activity (the joint-participants exception).

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Medical Privileges: Psychotherapist vs. Physician

One of the most frequent traps on the MBE concerns the divergent treatment of psychotherapists versus medical doctors under federal law:

1. Psychotherapist-Patient Privilege (Recognized in Federal Common Law)

In Jaffee v. Redmond (1996), the Supreme Court recognized the psychotherapist-patient privilege under FRE 501:

• Coverage: Protects confidential communications made for the purpose of diagnosis or treatment of a mental or emotional condition.
• Applicable Professionals: Licensed psychiatrists, licensed psychologists, and licensed clinical social workers.
• Holder: The patient holds the privilege.
• Exceptions: The privilege does not apply if the patient puts their mental condition into issue (e.g., insanity defense or claiming emotional distress damages), or in court-ordered psychiatric examinations.

2. Physician-Patient Privilege (NOT Recognized in Federal Common Law)

CRITICAL MBE RULE: There is NO general physician-patient privilege under Federal Common Law!

• In a federal criminal prosecution or a federal question civil case, statements made by a patient to an ordinary treating medical physician are NOT privileged under federal law.
• The physician-patient privilege exists purely as a matter of state statutory law. Therefore, pursuant to FRE 501, a physician-patient privilege applies in federal court only in civil diversity actions where state substantive law governs.

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More on Privileges

Attorney-Client Details

• Usually not privileged: The identity of a client, the fact of representation, and fee arrangements; preexisting documents and facts (a client cannot shield a document by handing it to a lawyer); and communications for business rather than legal advice.
• Waiver: The client waives the privilege by voluntarily disclosing the communication to a third party, by asserting an advice-of-counsel defense that puts the communication at issue, or by failing to object when the communication is offered.
• Crime-fraud exception: The exception depends on the client's purpose. A client who seeks advice to carry out a planned fraud loses the privilege even if the lawyer refuses to help. A judge may review allegedly privileged communications in camera to decide whether the exception applies once there is a factual basis supporting a good-faith belief that review may reveal it (United States v. Zolin, 1989).
• Corporations: The corporation holds the privilege, and its current management controls whether to assert or waive it (CFTC v. Weintraub, 1985). Lawyers interviewing employees commonly give "Upjohn warnings" explaining that they represent the company, not the employee.
• Rule 502 details: A federal court may order that privilege is not waived by disclosure connected with the litigation pending before it, and that order binds parties and nonparties in any other federal or state proceeding (502(d)). A private agreement between parties about the effect of disclosure binds only those parties unless it is incorporated into a court order (502(e)).

Other Privileges in Federal Court

Determining Privilege Claims

• Judge decides: Whether a privilege exists and applies is a preliminary question for the judge under Rule 104(a), and privilege rules apply at every stage of every proceeding (Rule 1101(c)).
• Diversity cases: When state law governs a claim, a state physician-patient privilege or accountant privilege may apply in federal court.