General Practice, Solo & Small Firm DivisionBest of ABA Sections

FALL 1997

Family Law

Asserting the Privilege

Paul Ivan Birzon

Evidentiary privileges are a curiosity among rules of exclusion. Unlike exclusionary rules that assist the fact finder by safeguarding against the introduction of evidence likely to mislead, confuse, or produce a prejudicial result, privileges are an effort to safeguard interests and relationships considered vital to the preservation of our societal values.

The distinct underpinnings upon which privileges rest give them a uniqueness among other rules of exclusion. No other rule places exclusion outside the control of the litigants and empowers the witness alone to determine whether evidence should be withheld. None are as generous in their operating scope, and few are as hardy, surviving in some instances the death of the holder.

Among the most common evidentiary privileges is the privilege against self-incrimination, which arose historically as a protection against testimonial compulsion in criminal investigations and trials. In matrimonial litigation, the "Great Privilege" is most commonly invoked when the question implicates adultery, child or spousal abuse, or unreported income. Because the latter generally requires the production of a variety of financial records, certain features of the privilege become noteworthy.

First, the privilege applies only to persons and not to corporations, partnerships, or other entities; thus, one must produce documents of a closely-held corporation, notwithstanding that the president and sole stockholder is a party to a divorce action. Second, the privilege does not attach to documents merely by their transfer to a third person, such as a lawyer or accountant with whom the witness has a professional relationship. Fisher v. U.S., 425 U.S. 391 (1976). However, when the witness is the sole proprietor of an unincorporated business or is the exclusive custodian of corporate or other entity records, the very act of production may have incriminating implications.

Like all privileges, the privilege against self-incrimination can be waived. Because the scope of the privilege extends even to an inquiry that merely tends to incriminate and failure to assert the privilege constitutes a waiver, the difficult question often is when to claim the privilege. A witness should take the most cautious approach and assert the privilege whenever any possible incriminating consequences exist. However, merely interposing a responsive pleading that seeks no affirmative relief will not be construed as a waiver, nor does a witness waive if required to testify involuntarily at a deposition or trial.

Unlike most privileges, when a party asserts the privilege against self-incrimination in a civil proceeding, the adversary may be entitled to an adverse inference. Baxter v. Palmigiano, 425 U.S. 308 (1976); Marine Midland v. Russo Produce Co., 50 N.Y.2d 31 (1980).

To avoid being blindsided by a witness who forecloses discovery by asserting the privilege at the deposition and later waiving it at trial, bring a motion to prevent the witness from testifying at trial as to questions met earlier by an assertion of the privilege.


The Acccountant-Client Privilege. Despite the accountant’s omnipresence in the financial aspects of matrimonial cases, only half of the states have given life to the accountant-client privilege. In states that do not recognize the privilege, the designation of the accountant as the attorney’s agent will often protect communications under the attorney-client privilege or work-product doctrine. It will, however, be necessary to demonstrate the necessity for the accountant’s services before the court will accept the agency theory. In such a case, it is advisable to engage the accountant with a retainer agreement. See U.S. v. Kovel, 296 F.2d 918 (2d Cir. 1961).

Like most other professional privileges, the accountant-client privilege belongs to the client. Whenever it exists, the privilege extends to certified public accountants and, in some states, to all accounting practitioners. As with the lawyer-client privilege, an exception is recognized when a client seeks to perpetrate a crime or a fraud.


The Psychotherapist-Client Privilege. Evolved from the physician-patient privilege, the psychotherapist-client privilege is found in all but one state. Under its broad umbrella, disclosures in a given jurisdiction may be protected if communicated to psychiatrists, psychologists, psychotherapists, licensed or certified social workers, marital and family therapists, or guidance counselors.

As with all "professional" privileges, courts require a showing that the person from whom professional assistance is sought falls within a legislatively approved class and is functioning in that capacity at the time the privileged information was revealed. Additionally, to activate the psychotherapist-client privilege, one must show that the protected information was necessary for treatment.

This privilege is generally abrogated by statutes that man-date mental health professionals to report suspected child abuse and when a psychotherapist believes that the patient poses a danger to another person. See Tarasoff v. Regents of University of Cal., 17 Cal.3d 425, 551 P.2d 334 (1976).


Marital Confidences. In many jurisdictions, two generally recognized privileges exist between spouses. The first is the adverse spousal testimonial privilege, which has little meaning for the family law practitioner because it generally applies to criminal proceedings. The second is the confidential communication privilege, which protects information inspired by the marital relationship and confidentially disclosed between husband and wife.

This privilege applies in all civil and criminal proceedings whether the spouse whose testimony is sought is a party or a nonparty witness. Whereas the testimonial privilege precludes all testimony, the confidential communication privilege disallows only those exchanges between spouses that qualify as confidential. This privilege is universally recognized, generally in a statutory form. Although application of this privilege varies by jurisdiction, it may be exercised by either spouse. This form of the privilege is particularly durable and may be relevant in postdissolution proceedings because it may be claimed after the marriage has been terminated or even after death as long as the communication took place during the marriage.

The presence of a third person other than a child of tender years during spousal communication invalidates the privilege because it is assumed that confidentiality is not intended. When spouses divorce, the harmony promoted by the privilege has been shattered, and the privilege may also vanish. See Poppe v. Poppe, 3 N.Y.2d 312, 144 N.E.2d 72 (1957).

Although it is analytically difficult to reconcile a privilege intended to encourage marital harmony with its destruction by reason of an event neither intended nor anticipated by the spouses at the time of the communication, for all practical purposes the spousal privilege may be unavailable to the parties once the marriage is deemed no longer viable.


The Parent-Child Privilege. Only Idaho, Massachusetts, and Minnesota recognize a parent-child privilege. All other states but one in which the issue has arisen have uniformly rejected the contention that compelling a parent or child to testify against the other destroys the trust in such a relationship and encourages defiance of such efforts. It is generally said that legislative judgments should determine issues to judicially compel disclosure.

The single exception is New York where, despite the absence of a controlling statute, case law has recognized the right of a parent to refuse to reveal a communication conveyed in confidence by a child, either by reason of privilege ( People v. Fitzgerald, 101 Misc.2d 712, 422 N.Y.S.2d 309 (1979)) or because of constitutional considerations of familial privacy ( Matter of A&M, 61 A.D.2d 426, 403 N.Y.S.2d 375 (4th Dep’t 1978).

Paul Ivan Birzon is a past president of the New York Chapter of the American Academy of Matrimonial Lawyers, practices in Buffalo, and is an adjunct professor of evidence at the State University of New York, Buffalo Law School.

 This article is excerpted from Family Advocate magazine. The full article appears at page 38 in the Summer 1996 (Vol. 19, No. 1) issue.

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