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12 Cards in this Set
- Front
- Back
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Rule 501 |
Choice of law provision that tells when statelaw for privileges will apply and when federal law will apply. Federal courtshould apply state law rules of privileges when state law supplies the rule ofdecision. In federal cases, each individual court decides based on generalcommon law principles, what privileges to apply. Privileges are not static. |
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Whydo we need privileges? |
a) Utilitarian rationale: it’simportant for lawyers to know all facts in order to provide effective legal counsel. (1) Privilegeprotects relationships that are socially benefits three critteria(a) must be a type of relationship that societywants to foster(b) confidential communications must be essential tomaintaining a relationship(c) injury to relation from the disclosure must begreater than the benefit to the truth-seeking process from that disclosure(d) Must have been made w/ knowledge that it wouldbe disclosed
b) Privacyrationale: some relationships are sacred and it is unseemly tosubject them to the intrusion of the courts |
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ATTORNEY-CLIENTPRIVILEGE |
important relationship – 6th Am’t right to Assistanceof Counsel |
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ATTORNEY-CLIENT PRIVILEGE: promotesprivacy |
1. attyhave two overlapping commitments: professional obligation to keep client infoconfidential. evid. privilege is even stronger –it protects atty even if they are subpoenaed to testify in ct.; narrowerin that it only applies to con comm. made to obtain legal services
2. Generally,client holds the privy b/c designed to protect the client, not the lawyer. Butthe lawyer can assert the priv. on client’behalfa) anycontext, any stage of litigation
3. covercon comm. from the client / rep. to the atty/rep. made for the purpose offacilitating legal services |
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ATTORNEY-CLIENT PRIVILEGE: EXCEPTIONS |
ATTORNEY CLIENT PRIVILEGE IS absoluterather than qualified, so no showing of strong need for the protected info willhelp, but there are some exceptions:
1. Crime-fraudexception: if a client asks a lawyer to help her perpetuate a crime orfraud, request itself is illegal and there is no policy that justifiesshielding it.
2. claimof br/: no proc as to communication relevant to an issue of br/ of duty bythe lawyer to the client to the lawyer (ineffective assistance, malpracticeaction)
3. jointclients – ifatty reps two or more clients jointly and the rep breaks down, and one sues theother any client may disclose the con. comm that occurred during repa) oftenhappens in divorce cases – peoplethink it will be amicable so they hire one lawyer, goes bad. Original atty mustwithdraw from rapping either one, but both lose the privy and other one canforce the atty to testify about any relevant comm. w/ either spouse. A lawyerrapping multiple clients generally has to explain the possible lose of priv..at the start of the re. |
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ATTORNEY-CLIENT PRIVILEGE: Corporations as Clients |
A. – fed law usesmulti-factor test to make these determination in a corp setting
1. Communicationswere made to corporate counsel acting as corporate counsel
2. Communicationshave to concern corporate duties
3. Communicationswere made by employees at direction of their superiors
4. Employeeswere aware that they were being questioned in order that company could obtain legal advice
5. Communicationsmust be considered confidential by employee and kept confidential within the company
6. Whetherinfo was otherwise available to top management
7. Key – (scope, andin order to get it, they needed to give it) |
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ATTORNEY-CLIENT PRIVILEGE: The Attorney |
doesn’t have to be any – anyone whois a lawyer or who the client reasonably believes is authorized to practice law
1. includesany reps– secretaries, accountants, paralegals, etc. a) aslong as services are necessary to further the legal representation |
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ATTORNEY-CLIENT PRIVILEGE: Communication |
– any actintended to communicate;
1. doesn’t protectunderlying information, so if you find out w/o relying on the thatcommunication, all good
2. youcan’t protectthings by telling lawyer –doesn’tprotect info, just that communication
3. Attyhave an affirmative duty to disclose |
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ATTORNEY-CLIENT PRIVILEGE: Confidentiality |
whenthere is a reasonable expectation of privacythe prison phone call, told and confessed lawyer; noexpectation of privacy |
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ATTORNEY-CLIENT PRIVILEGE: Waiver of Privilege |
A. Onlyclient can waive the privilege –sometimes explicitly, often times implicitly
1. tellingsomeone else about you told atty about, it’s waived “ought in fairness to be considered”
2. ifsomething is accidentally waived, in the midst of a million docs of recovery,just need to show that reasonable measures were taken to prevent it, andreasonable steps to rectify |
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ATTORNEY-CLIENT PRIVILEGE: Work Product |
A. Onlyclient can waive the privilege –sometimes explicitly, often times implicitly
1. tellingsomeone else about you told atty about, it’s waived “ought in fairness to be considered”
2. ifsomething is accidentally waived, in the midst of a million docs of recovery,just need to show that reasonable measures were taken to prevent it, andreasonable steps to rectify |
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Other Privileges |
A. PsychotherapistPrivilege (fed.)– new-ish, communications made for purposes of obtainingpsychological diagnosis or treatment
B. Clergy-CommunicantPrivilege (states)– protects confidential communications w/ members of the clergy for thepurpose of obtaining spiritual advice
1. notclear who indicates who holds the priv. 2. Haveform in beginning “anythingI say to a priest, I waive in advance that what I say may be used against me” some catholicchurches have suggested reporting as part of penne
3. secondarysources are generally not privileged
C. ExecutivePrivilege– protects advice given to high-level gov’t decision makers
D. Reporter/ Source Privilege
E. Physician/ Patient Privilege |
