Attorney Client Privilege

Question 1

Can the court look at privileged material in order to asset whether it is protected?

Answer 1

Generally no. But be sure it is protected first.

Question 2

What is the showing of attorney-client privilege?

Answer 2

1. There must be an attorney-client relationship, and
   a. In general, if the attorney says it was made in confidence, the inquire will end here.
   b. If attorney is a friend or business advisor, privilege might not apply. . .
   c. This is a subjective test – look through the lens of the client – was that party believed that he or she is looking for or receiving secure legal advice.
   d. Formal representation is not required.
2. The communication was made to secure or provide legal advice, and
   a. Not all communications are protected because not all communications are for seeking or providing legal advice
   b. It must be legal advice
3. The communication was made in confidence, and
4. The communication was treated as confidential.
   a. In a crowded place – no expectation of confidence.

Question 3

Is there a behavioral health privilege?

Answer 3

Yes. Absent waiver, psychologist cannot be compelled to testify regarding even observations of patient. But a one time assessment for risk of harm coupled with a fair warning about lack of confidentiality does not qualify for protection.