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15 Cards in this Set

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  • Back

What is the attorney-client privilege?
confidential communications between attorney and client are privileged from disclosure unless waived by the client or the representative of the deceased client (survives death of client)

what are the elements?
1. the right parties: attorney-client
2. confidential communication (not physical evidence or pre-existing documents)
3. professional legal relationship: (1)intent by client to establish a professional legal relationship, (2) predominately legal advice sought

Exceptions: what are the situations where the privilege does not apply?
1. future crime or fraud
2. at issue exception: (I didn't commit fraud, I followed advice of my attorney)
3. disputes between the parties to the professional relationship (actions for fee or malpractice)
4. Joint client exception: where 2 or more parties communicate with att about matter of common interest.
Privileges: Physician/Psychiatrist

what is the privilege?
the patient has a privilege against disclosure of confidential information acquired by the physican/psy in a professional relationship entered into for the purpose of obtaining treatment

What are the key elements?
1. patient must be seeking treatment

2. information acquired must be confidential and necessary to facilitate professional treatment
Privileges: Physician/Patient

is there is a privilege if court orders a determination of competency or if the doctor is an expert hired to do a physical for trial?
Privileges: Physician/Patient

When is there a WAIVER of the privilege?
if patient sues or defends by putting physical or mental condition in issue

what is the Spousal Immunity Privilege?
protects one spouse from being forced to testify against the other in a criminal case

What is the confidential marital communications privilege?
protects against confidential communications made in marriage. applies in civil and criminal
Privileges: Husband/wife

how does an intra-family injury case (assault of spouse or child, incest, etc) affect the privilege?
the privilege won't apply
Privileges: Husband/wife

What are the spousal immunity requirements?
1. Valid marriage at time of trial
2. protects against any and all testimony
3. Holder of privilege spouse is witness spouse not party spouse
4. applies only in a criminal case
Privileges: Husband/wife

what are the requirements of the Confidential Marital Communications Privilege?
1. married not at time of trial, but at time of communication
2. protects only confidences, not all testimony
3. holder of privilege is either spouse
4. applies in civil and criminal
applicability of State privilege law in federal court

what are the 3 situations in which state evidence law will apply in federal court IF state substantive law applies (as in typical diversity J case)
"in civil actions or proceedings with respect to an element of a claim or defense as to which state law applies the rule of decision"...state law will apply regarding...

1. presumptions and burdens of proof
2. competency of W
3. Privileges
What will govern Federal privilege law in federal question or in federal criminal cases?
"shall be governed by the principles of C/L as they may be interpreted by the courts of the United States in the light of reason and experience."
what law applies if the action in federal court is a suit under the federal social security act?
federal law applies. If a privilege is involved, federal common law would be the answer