chap. 12 : privileges

CHAP. 12 :PRIVILEGES

P. JANICKE

FALL 2011

2011 Chap. 12 -- Privileges 2

DEFINITION

• A PRIVILEGE IS A RIGHT OF SOME PERSON OR ENTITY TO BLOCK THE ADMISSION OF CERTAIN KINDS OF EVIDENCE IN A CASE– EVEN THOUGH RELEVANT– EVEN THOUGH CRUCIAL– EVEN THOUGH NO PREJUDICE UNDER

R403


PURPOSE

• TO FURTHER SOME SOCIETAL GOAL

• REFLECTS HUMANKIND’S EFFORT TO CIVILIZE ITSELF


ATTORNEY-CLIENT PRIVILEGE

• A PERSON WHO CONSULTS A LAWYER FOR THE PURPOSE OF OBTAINING LEGAL ADVICE HAS A PRIVILEGE TO BLOCK DISCLOSURE OF WHAT THE PERSON OR THE LAWYER SAID, IF THE CIRCUMSTANCES WERE APPARENTLY CONFIDENTIAL


HELL OR HIGH WATER

• THERE ARE NO EXCEPTIONS BASED ON NEEDS OF THE OTHER SIDE– THEY CAN TRY TO DISCOVER THE

FACTS SOME OTHER WAY

• THE ONLY SIGNIFICANT EXCEPTION IS: A LATER ACTION BETWEEN THE LAWYER AND THE CLIENT–MALPRACTICE– ACTION TO COLLECT A FEE


SO-CALLED CRIME/FRAUD “EXCEPTION”

• WHERE CLIENT’S MAIN PURPOSE IS TO INVOLVE THE LAWYER IN ASSISTING IN A CRIME OR FRAUD, THE DEFINITION ISN’T MET (PURPOSE ISN’T TO GET LEGAL ADVICE)

• NOT REALLY AN EXCEPTION, BUT OFTEN CALLED ONE


WHERE LAWYER DECLINES THE REPRESENTATION

• NO EFFECT ON THE PRIVILEGE

• NO RELATIONSHIP NEEDED– SEE DEFINITION


EAVESDROPPER

• NO EFFECT– SEE DEFINITION : APPARENT

CONFIDENTIALITY IS ENOUGH– SOME OLDER CASES CONTRA

• EAVESDROPPERS CAN BE ENJOINED


BOTH SIDES OF CONVERSATION COVERED

• TRADITIONALLY, ONLY WHAT THE CLIENT SAID WAS PRIVILEGED

• HOWEVER, WHAT THE LAWYER SAID USUALLY INHERENTLY REVEALS WHAT THE CLIENT SAID, AND IS CALLED DERIVATIVELY PRIVILEGED– E.G. : “HMMM! THEN YOU’RE GUILTY

OF MURDER!”


• MOST MODERN DECISIONS SHORTEN THE ANALYSIS AND SAY THE PRIVILEGE COVERS BOTH WAYS


THE CLIENT “OWNS” THE PRIVILEGE

• CAN DECIDE WHETHER OR NOT TO BLOCK DISCLOSURE IN COURT

• CAN DECIDE WHICH OF LAWYER’S HELPERS, IF ANY, SHOULD SEE IT


WAIVER• ONLY BY THE CLIENT OR HIS REPRESENTATIVE

(WHO IS OFTEN THE LAWYER)

• EXPRESSLY WAIVES– PERSONALLY AUTHORIZES DISCLOSURE OF

THE COMMUNICATION– AUTHORIZES AGENT TO DISCLOSE THE

COMMUNICATION

• WAIVES BY CONDUCT– REVEALS THE COMMUNICATION TO OTHERS

“OUTSIDE THE FAMILY”– HANDS OVER DOCUMENTS CONTAINING THE

COMMUNICATION


• WAIVER BY CONDUCT: HALF-OPEN DOOR RULE– REVEALING PARTS IN TESTIMONY– RELYING ON “ADVICE OF COUNSEL”

TO DEFEAT CERTAIN REMEDIES– REVEALING ONE OPINION BUT

ASSERTING PRIVILEGE ON OTHERS ON SAME TOPIC

• NEW RULE 502– CODIFIES THE HALF-OPEN RULE– OUGHT “IN FAIRNESS” TO BE

CONSIDERED WITH WAIVED ITEM


• LAWYER MUST HONOR THE CLIENT’S WAIVER INSTRUCTION– EVEN IF EMBARRASSING TO THE

LAWYER

• A RESULT OF CLIENT “OWNING” THE PRIVILEGE


IMPACT OF WAIVER MADE IN A FEDERAL CASE

• MAY OPERATE AS A WAIVER ON OTHER PRIVILEGED COMMUNICATIONS ON SAME TOPIC, UP TO THE DATE OF THE WAIVER– IF THE TWO COMMUNICATIONS

OUGHT “IN FAIRNESS” TO BE CONSIDERED TOGETHER


IMPACT OF WAIVER: COMMON LAW AND STATE RULE

• WAIVER AS TO ONE COMMUNICATION WAIVES AS TO ALL OTHER COMMUNICATIONS ON THE SAME TOPIC, UP TO THE DATE OF THE WAIVER

• TO PREVENT PICK-AND-CHOOSE TACTIC


TWO MARITAL PRIVILEGES[TEXAS RULE 504]

• MARITAL COMMUNICATIONS–MADE DURING MARRIAGE UNDER

APPARENT PRIVACY CONDITIONS– PRIVILEGE BELONGS TO THE

SPEAKING SPOUSE– DOESN’T EXTEND TO

CONTEMPORANEOUS ACTIONS– PRIVILEGE SURVIVES DIVORCE


EXCEPTIONS

• ACTIONS BETWEEN THE SPOUSES

• CRIMINAL CASE WHERE ALLEGED VICTIM WAS THE LISTENING SPOUSE, OR A MINOR CHILD

• SEVERAL OTHER EXCEPTIONS SEE TEXAS EV. R. 504


EXAMPLE

• “LOOK HERE, HONEY, AT ALL THIS MONEY I ROBBED FROM THE BANK!”

• IF EX-WIFE BECOMES A WITNESS:– SHE CAN BE COMPELLED TO TESTIFY

TO SEEING MONEY DUMPED BY HUSBAND ON THE BED

– HUSBAND CAN PREVENT EX-WIFE FROM TESTIFYING TO WHAT HE SAID


PRIVILEGE NOT TO BE CALLED BY THE PROSECUTION

[TEX. RULE 504]

• BELONGS TO THE WITNESS- SPOUSE, NOT THE ACCUSED SPOUSE

• ENDS WITH DIVORCE

• DOES NOT APPLY WHERE WITNESS-SPOUSE IS VICTIM


MANY OTHER STATES(AND MANY MOVIES)

• PRIVILEGE BELONGS TO THE DEFENDANT SPOUSE


PRIVILEGE AGAINST COMPELLED

SELF-INCRIMINATION

• CAN’T BE REQUIRED TO TESTIFY• CAN’T BE OBLIGED TO WRITE OUT A

CONFESSION• BUT: IF A PERSON WRITES A DOCUMENT

ON HIS OWN INITIATIVE, THERE IS NO PRIVILEGE; THE DOCUMENT CAN BE SUBPOENAED, AND USED BY PROSECUTION


THE PROBLEM OF FILES

• THEY ARE CREATED VOLUNTARILY, SO ARE NOT PROTECTED

• GIVING THEM TO A LAWYER WON’T HELP

• BUT SOMETIMES, PRODUCING THEM IN RESPONSE TO SUBPOENA COULD HAVE EFFECT OF MAKING A FORCED STATEMENT -- >>


EXAMPLE

• SUBPOENA REQUESTING “ALL BANK DEPOSIT SLIPS THAT REFLECT DEPOSITS OF MONEY MADE FROM DRUG SALES”

• THIS SHOULD BE QUASHED, SINCE THE COMMAND IS PHRASED SUCH THAT COMPLIANCE WOULD AMOUNT TO A COMPELLED STATEMENT


EXAMPLE 2

• SUBPOENA COMMANDING PRODUCTION OF “THE WEAPON YOU USED IN THE MAY 15 MURDER”

• ACT OF COMPLIANCE IS EQUIVALENT TO CONFESSION

• SHOULD BE QUASHED


CIVIL CASES: JUDICIAL COMMENT ON

INVOKING THE 5TH• PLAINTIFF INVOKING:– IS APT TO BE NON-SUITED IN TEXAS

• CIVIL DEFENDANT INVOKING:–WILL HAVE HEAVY NEGATIVE

JUDICIAL COMMENT FOR INVOKING 5TH

IN TEXAS

• ALL OTHER PRIVILEGES ARE UNMENTIONABLE


CLERGYMAN-PENITENT[TEXAS RULE 505]

• WORKS SIMILARLY TO LAWYER-CLIENT PRIVILEGE

• CIVIL AND CRIMINAL CASES

• MAIN ISSUE TODAY IS: WHAT ORGANIZATIONS ARE RELIGIONS?


TRADE SECRET

• A QUASI-PRIVILEGE

• COURT CAN OVERRIDE IT IF MAINTAINING THE PRIVILEGE WOULD “WORK INJUSTICE”

• PRETTY EASY TO BREAK TODAY, WITH PROTECTIVE ORDER


PHYSICIAN-PATIENT PRIVILEGE [TEXAS RULE 509]

• NO SUCH PRIVILEGE IN CRIMINAL CASES IN TEXAS


PHYSICIAN-PATIENT PRIVILEGE [TEXAS RULE 509]

• ALMOST NONEXISTENT EVEN IN CIVIL CASES, DUE TO EXCEPTION (e)(4):– NO PRIVILEGE WHERE THE PATIENT’S

CONDITION IS PART OF A PARTY’S CLAIM OR DEFENSE

– [WHEN WOULD IT NOT BE, AND RETAIN RELEVANCE ??]


MENTAL HEALTH PROFESSIONALS

[TEXAS RULE 510]

• NO PRIVILEGE IN CRIMINAL CASES

• IN CIVIL CASES:– TRACKS THE DOCTOR-PATIENT RULE– INCLUDES DRUG-ABUSE WORKERS– SAME GLARING EXCEPTION


PARTY’S WORK PRODUCT[FED. R. CIV. P. 26 (b)(3)]

• IS NOT A PRIVILEGE, BUT SOMEWHAT LIKE ONE

• PARTY’S MATERIALS PREPARED IN ANTICIPATION OF LITIGATION, OR FOR TRIAL, ARE COVERED– LAWYER STUFF IS A BIG PART OF IT

• CAN BE (AND OFTEN IS) OVERRIDDEN BY A SHOWING OF NEED


• BUT, MENTAL IMPRESSIONS OF COUNSEL ARE MASKED OUT


TEX. R. CIV. P. 192

• IS SIMILAR TO FED. PRACTICE:– COUNSEL IMPRESSIONS ARE CALLED

“CORE” WORK PRODUCT, GENERALLY BLOCKED

– THE REST IS CALLED “OTHER WORK PRODUCT” AND CAN BE HAD BY SHOWING “SUBSTANTIAL NEED”

• MEMO TO FILE IS WORK PRODUCT, NOT PRIVILEGED; BUT LIKELY IS “CORE”


• WORK PRODUCT HAS NO APPLICABILITY IN CRIMINAL CASES

– E.G., GRAND JURY SUBPOENA OVERRIDES


JOURNALIST’S PRIVILEGE

• FEDERAL CASE LAW CREATES A QUASI-PRIVILEGE: MUST EXHAUST OTHER POSSIBLE AVENUES OF EVIDENCE FIRST

• TEXAS HAS A STATUTE CREATING THIS PRIVILEGE:


JOURNALIST’S PRIVILEGE IN CIVIL CASES

Tex. Civ. Prac. & Rems. Code §22.021

• COVERS PERSONS WHO DO NEWS GATHERING OR DISSEMINATION– FOR A SUBSTANTIAL PORTION OF THEIR

LIVELIHOOD OR – FOR SUBSTANTIAL FINANCIAL GAIN

• COVERS THEIR EMPLOYER COMPANIES

• ALSO COVERS UNIVERSITY SCHOLARS AND RESEARCHERS


• THE PRIVILEGE:– TO REFUSE TO DISCLOSE ANY

INFORMATION COLLECTED IN THAT CAPACITY, WHETHER OR NOT CONFIDENTIAL

– TO REFUSE TO DISCLOSE SOURCES

• PUBLICATION OF THE INFORMATION BY A NEWS MEDIUM IS NOT A WAIVER


• LIMITS: – COURT CAN ORDER DISCLOSURE BY

JOURNALIST IF:• NO OTHER WAY TO OBTAIN THE

EVIDENCE• SUBPOENA IS NARROWLY DRAFTED• INTEREST OF JUSTICE OUTWEIGHS

PUBLIC INTEREST IN NEWS FLOW

– THE NEWS ARTICLE, BROADCAST, ETC., ITSELF IS NOT PRIVILEGED (WILL BE ADMISSIBLE IF COMPLIANT WITH THE OTHER RULES OF EVIDENCE, ESPECIALLY HEARSAY)


JOURNALIST’S PRIVILEGE IN TEXAS CRIMINAL CASES

TEX. CODE. CRIM. PROC. ART. 38.11

• SIMILAR TO THE CIVIL PRIVILEGE, EXCEPT:– NO SOURCE PRIVILEGE IF A FELONY IS

COMMITTED IN JOURNALIST’S PRESENCE, AND NO OTHER WAY TO PROVE IT

– NO SOURCE PRIVILEGE IF SOURCE ADMITTED COMMISSION OF A FELONY, AND NO OTHER WAY TO PROVE IT

– NO SOURCE PRIVILEGE IF PROBABLE CAUSE EXISTS THAT SOURCE COMMITTED A FELONY, AND NO OTHER WAY TO PROVE IT


– NO SOURCE PRIVILEGE IF INFO IS OBTAINED BY BREACH OF GRAND JUROR’S DUTY OF SECRECY

– NO SOURCE PRIVILEGE IF DISCLOSURE OF SOURCE IS NEEDED TO PROTECT LIFE OR PREVENT SERIOUS BODILY HARM


• INFORMATION (OTHER THAN SOURCE) PRIVILEGE:– TRACKS THE CIVIL RULE– JUDGE CAN ORDER DISCLOSURE IF

NECESSARY AND NARROWLY TAILORED• INTER ALIA, MUST HAVE INDEPENDENT

EVIDENCE THAT A CRIME HAS OCCURRED


ABROGATION OF PRIVILEGES IN CHILD-ABUSE CASES

TEX. FAM. CODE §261.202

• ALL PRIVILEGES VANISH IN PROCEEDINGS “REGARDING THE ABUSE OR NEGLECT OF A CHILD”

• EXCEPT: ATTORNEY-CLIENT PRIVILEGE

• MAIN PURPOSE: TO BLOCK MARITAL COMMUNICATION PRIVILEGE

chap. 12 : privileges

Documents

lawyer said

client said

privilegeswhere lawyer

privilegesthe client

privilegesimpact of

block disclosure

lawyera result of client

asserting privilege