Understanding Legal Privileges: Definitions, Types, and Waivers

1. CHAP. 12 :PRIVILEGES P. JANICKE FALL 2010

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 Chap. 12 -- Privileges

3. PURPOSE • TO FURTHER SOME SOCIETAL GOAL • REFLECTS HUMANKIND’S EFFORT TO CIVILIZE ITSELF Chap. 12 -- Privileges

4. ATTORNEY-CLIENT PRIVILEGE • A PERSON WHO CONSULTS A LAWYER FOR THE PURPOSEOF OBTAINING LEGAL ADVICE HAS A PRIVILEGE TO BLOCK DISCLOSURE OF WHAT THE PERSON OR THE LAWYER SAID, IF THE CIRCUMSTANCES WERE APPARENTLY CONFIDENTIAL Chap. 12 -- Privileges

5. 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 Chap. 12 -- Privileges

6. 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 Chap. 12 -- Privileges

7. WHERE LAWYER DECLINES THE REPRESENTATION • NO EFFECT ON THE PRIVILEGE • NO RELATIONSHIP NEEDED • SEE DEFINITION Chap. 12 -- Privileges

8. EAVESDROPPER • NO EFFECT • SEE DEFINITION : APPARENT CONFIDENTIALITY IS ENOUGH • SOME OLDER CASES CONTRA • EAVESDROPPERS CAN BE ENJOINED Chap. 12 -- Privileges

9. 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!” Chap. 12 -- Privileges

10. MOST MODERN DECISIONS SHORTEN THE ANALYSIS AND SAY THE PRIVILEGE COVERS BOTH WAYS Chap. 12 -- Privileges

11. 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 Chap. 12 -- Privileges

12. 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 Chap. 12 -- Privileges

13. 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 Chap. 12 -- Privileges

14. LAWYER MUST HONOR THE CLIENT’S WAIVER INSTRUCTION • EVEN IF EMBARRASSING TO THE LAWYER • A RESULT OF CLIENT “OWNING” THE PRIVILEGE Chap. 12 -- Privileges

15. 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 Chap. 12 -- Privileges

16. 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 Chap. 12 -- Privileges

17. 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 Chap. 12 -- Privileges

18. 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 Chap. 12 -- Privileges

19. 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 Chap. 12 -- Privileges

20. 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 Chap. 12 -- Privileges

21. MANY OTHER STATES(AND MANY MOVIES) • PRIVILEGE BELONGS TO THE DEFENDANT SPOUSE Chap. 12 -- Privileges

22. 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 Chap. 12 -- Privileges

23. 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 -- >> Chap. 12 -- Privileges

24. 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 Chap. 12 -- Privileges

25. 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 Chap. 12 -- Privileges

26. 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 Chap. 12 -- Privileges

27. CLERGYMAN-PENITENT[TEXAS RULE 505] • WORKS SIMILARLY TO LAWYER-CLIENT PRIVILEGE • CIVIL AND CRIMINAL CASES • MAIN ISSUE TODAY IS: WHAT ORGANIZATIONS ARE RELIGIONS? Chap. 12 -- Privileges

28. TRADE SECRET • A QUASI-PRIVILEGE • COURT CAN OVERRIDE IT IF MAINTAINING THE PRIVILEGE WOULD “WORK INJUSTICE” • PRETTY EASY TO BREAK TODAY, WITH PROTECTIVE ORDER Chap. 12 -- Privileges

29. PHYSICIAN-PATIENT PRIVILEGE [TEXAS RULE 509] • NO SUCH PRIVILEGE IN CRIMINAL CASES IN TEXAS Chap. 12 -- Privileges

30. 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 ??] Chap. 12 -- Privileges

31. 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 Chap. 12 -- Privileges

32. 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 Chap. 12 -- Privileges

33. BUT, MENTAL IMPRESSIONS OF COUNSEL ARE MASKED OUT Chap. 12 -- Privileges

34. 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” Chap. 12 -- Privileges

35. WORK PRODUCT HAS NO APPLICABILITY IN CRIMINAL CASES • E.G., GRAND JURY SUBPOENA OVERRIDES Chap. 12 -- Privileges