Privileges
California: Most privilege law is exempt from coverage of Truth in Evidence Amendment to California Constitution. This means that, even in a criminal case, the usual rules of privilege apply. Federal: In a civil suit brought in federal court under diversity jurisdiction, state privilege law applies.
Attorney-Client Privilege (federal and Cali Rules)
- ) When is a communication from a corporation employee to the corporation’s attorney privileged?
- ) Action for personal injuries arising out of collision between Corporation’s delivery truck and another vehicle in Corporation’s parking lot. Employee of Corporation happened to be parking his car at the time and witnessed the accident. His supervisor orders him to write a statement for the Corporation’s lawyers describing what he saw. Privileged?
- ) Exceptions to attorney client privelege.
- ) Client meets with his attorney and states, “I want you to look for some tax shelters for me because my rich parents are about to have a fatal accident.” The attorney called the police, who arrived at defendant’s home too late to prevent the “accident.” Is the client’s statement admissible?
Federal and California: A communication between attorney and client or their representatives intended by client to be confidential and made to facilitate rendition of professional legal services is privileged unless waived by the client.
Federal: Privilege survives death of client.
California: Privilege ends once estate of dead client is distributed and executor of estate is discharged.
1.) Federal: privilege applies to communications from employees/agents if they were authorized by the corporation to make the communication to the lawyer on behalf of the corporation.
California: privilege applies to communications from employee/agent if she is the natural person to speak to the lawyer on behalf of the corporation in the matter (e.g., the corporation’s in-house counsel or CEO), or employee/agent did something for which the corporation may be held liable and the corporation instructed her to tell its lawyer what happened. As applied, there is no significant difference in the scope of these standards.
Where you would get tested is there is no privilege for a witness who so happens to be an employee for the company.
- ) No privilege for mere witness who happens to be an employee. No in both California and Federal. Just a mere witness.
- ) Federal and California: Privilege does not apply where:
(i) professional services were sought to further crime or fraud, or
(ii) two or more parties consult an attorney on a matter of common interest and the communication is offered by one of these parties against another,
or (iii) communication relates to alleged breach of duty between lawyer and client.
Additional exception in California only: privilege does not apply where lawyer reasonably believes disclosure of communication is necessary to prevent crime that is likely to result in death or substantial bodily harm.
Doctor-Patient and Psychotherapist-Patient Privileges
1.) Exceptions to these privileges. Federal and California exceptions for both privileges:
Federal: There is a psychotherapist-patient privilege but no doctor-patient privilege. (But remember, sometimes MBE questions assumes existence of Doctor-Patient Privilege.)
California: Both privileges exist.
- ) Exceptions to these privileges. Federal and California exceptions for both privileges:
(i) where the patient puts his physical or mental condition in issue, as in a personal injury suit,
(ii) where professional services were sought to aid in crime or fraud or to escape capture after a crime or tort, (iii) in case alleging breach of duty between patient and doctor or psychotherapist, as in a malpractice action.
California only: (i) psychotherapist privilege does not apply if the psychotherapist has reasonable cause to believe that the patient is a danger to himself or others, and that disclosure is necessary to end the danger,
(ii) doctor-patient privilege does not apply in criminal cases or to information that doctor is required to report to a public office (e.g., gun-shot wounds and some communicable diseases).
Spousal Privileges
(i) Spousal testimonial privilege permits witness to refuse to testify against his/her spouse as to anything.
Federal: applies only in criminal cases.
California: applies in civil and criminal cases and spouse of party is privileged not even to be called to witness stand.
(ii) Federal and California: Spousal confidential communication privilege may apply in any case and protects confidential spousal communications during marriage.
Other California Privileges. California also recognizes (i) privilege for confidential communications between a counselor and a victim of sexual assault or domestic violence, (ii) privilege for penitential communications between penitent and clergy, and (iii) immunity from contempt of court for news reporter who refuses to disclose sources
