Evidentiary Privileges

Attorney-Client Privilege

The attorney-client privilege is one of the most well-known and sacrosanct privileges and serves as a model for many of the other professional privileges. It encourages “full and frank communication between attorneys and their clients and thereby promote[s] broader public interests in the observance of law and the administration of justice.” Upjohn Co. v. United States, 449 U.S. 383 (1981). The attorney-client privilege can be asserted in opposition to official demands for information, such as deposition questions or subpoenas, or to deny the admission of evidence at trial. The privilege lasts forever, surviving the termination of the attorney-client relationship and even the death of the client.

To invoke the attorney-client privilege, four elements must be satisfied: (1) there must be a communication (2) between privileged persons (3) made in confidence (4) for the purposes of obtaining or providing legal assistance for a client. Restatement (Third) of the Law Governing Lawyers § 68 (2000). Communications can be in any form, including nonverbal acts intended to communicate information (e.g., nodding or indicating a number with raised fingers). The privilege protects the content of the communication but not knowledge of the underlying facts. Thus, a client can invoke the privilege if asked, “did you tell your attorney you had an extramarital affair,” but not if asked, “did you have an extramarital affair.” Further, while the privilege does not protect documents that predate the attorney-client relationship, it does protect information a client communicates to their attorney along with the document. The Restatement requires the communication be made between “privileged persons” rather than “between a client and her attorney” because the privilege applies to consultations before the attorney-client relationship is formed and also extends to “agents for communication.” Agents for communication are people reasonably necessary to facilitate the client’s communication with their attorney. This could include interpreters, parents of a minor client, and those hired by the attorney to assist in providing legal services. The confidence element requires the communicating person to reasonably believe that no one but another privileged person will learn about the content of the communication. For example, a conversation in an elevator or public space would not be protected because there is no expectation of privacy. However, where there is an unexpected eavesdropper, the privilege can still be raised. Finally, the claimant of the privilege must have consulted with the attorney or other privileged person for the purpose of obtaining legal or other assistance commonly performed by attorneys.

The client holds the attorney-client privilege, meaning only the client can choose to assert or waive the privilege. Attorneys have the duty to assert the privilege as agents of the client. However, attorneys are impliedly authorized to disclose privileged information if it will advance the client’s interests. Because the privilege is held by the client, it is extremely important to educate clients about what constitutes waiver of the privilege and its effect. Carelessness or mistake can lead to waiver; for example, having a relative attend a consultation waives the privilege. This same principle applies to emails and other kinds of communication. If a client forwards or copies someone on an email to her attorney, the communication is no longer made in confidence and the privilege is destroyed.

Model Rule of Professional Conduct 1.6 (Confidentiality) works in conjunction with the attorney-client privilege to ensure attorneys do not inadvertently disclose privileged information. The rule requires attorneys to use reasonable care and diligence to keep client information confidential. Attorneys need to be very careful when they are discussing client matters outside of their offices. Conversations in both elevators and restaurants have been found to constitute a waiver of the privilege. Attorneys must also take caution not to inadvertently send privileged information to opposing counsel. While Model Rule 4.4 (Respect for Rights of Third Persons) requires the receiving attorney to disclose the receipt of inadvertently sent documents, it does not forbid the receiving attorney from reading the document nor require the receiving attorney to destroy it. However, the analysis does not stop there. Be aware that if the receiving attorney reads it, he may be acting unethically and may be disqualified. The comment to this Model Rule states that what to do beyond notification is beyond the scope of the rules and one must look to state law. For example, Florida Rule of Civil Procedure 1.285 requires notification and sequestration of the document, which clearly indicates one cannot read it.

The attorney-client privilege is not absolute. It does not protect communications where a client was using their attorney’s services in furtherance of an illegal or fraudulent act, often called the crime-fraud exception. This exception only applies to future wrongdoing, not past crimes. If the crime-fraud exception is invoked successfully, otherwise-privileged documents become discoverable. Generally, the court will determine whether the exception applies after an in-camera review of documents.

The work product doctrine is intertwined with the attorney-client privilege. It has its roots in common law and the rules of civil procedure and supports the policy that an opposing party should not be able to build a case by using opposing counsel’s thoughts and impressions. The doctrine protects documents and other tangible items prepared by the party or attorney in anticipation of the litigation. However, a court can still order an attorney or party to turn over protected documents if the opposing party can show a substantial need for the information and an inability to obtain it elsewhere. If the court orders production, it still must protect the attorney’s mental impressions, conclusions, and legal theories. The duration of the doctrine varies by state: The broadest view is that the doctrine extends into all subsequent litigation with that party, while the narrowest view is that the protection ends with the litigation in which the document was prepared. States also have differing views on who can assert or waive the doctrine; some states permit an attorney to assert the doctrine even over their client’s objections. The failure to assert the doctrine in response to a discovery request operates as waiver.

Given the intricacies of the attorney-client privilege and related rules, educating a client about privilege and confidentiality cannot be underscored enough. Confidentiality is a hallmark of the attorney-client relationship because it fosters full and open communication between a client and their lawyer. Sometimes nothing can be more damaging than the accidental disclosure of confidential information, and the best way to prevent inadvertent disclosure is to explain to a client what the privilege means and how they can protect it themselves.

Fifth Amendment Privilege

The Fifth Amendment protects one from self-incrimination. The privilege allows one to refuse to answer questions or make statements that could be used to prove that person committed a crime. However, the Fifth Amendment does not condone perjury. The privilege permits someone to remain silent, but it does not allow someone to lie and then retroactively invoke the Fifth Amendment. This is true even if the person is unaware of their Fifth Amendment privilege.

Attorneys are forbidden from knowingly assisting a client or witness to commit perjury. A problem arises when a client insists on testifying to or providing a statement that their attorney knows to be false. An attorney has a duty to take action to prevent or correct perjury. ABA Model Rule 3.3 (Candor Toward the Tribunal) requires an attorney to take action to correct perjury, up to disclosing the perjury to the court.

Disclosure, however, is not always the most appropriate response. The Model Rules provide alternatives to disclosure, in the “Four R’s.” Recess the proceedings: If the client lies or is about to lie in a deposition or in court, an attorney should recess the proceedings immediately to stop the perjury. This gives the attorney another opportunity to persuade that client to tell the truth. Remonstrate with the client: An attorney should persuade their client to correct the perjury themselves. Explaining the consequences of perjury may convince the client to fix the perjury and remain truthful. Resign: However, an attorney should only resign if the withdrawal itself will remedy the perjury. Reveal: If there is no other effective response, an attorney must reveal the perjury. The duty to correct perjury is ongoing through the termination of the proceedings.

Informing a client about the implications of perjury is necessary whenever a client is about to prepare an affidavit, go to a deposition, or testify in court. An attorney must be prepared to invoke the Fifth Amendment privilege, for example, before the client executes a financial affidavit that does not reveal cash income that could subject the client to criminal liability. These and similar issues often arise in the family law context. Invoking this privilege in a civil matter is not without consequences. Inferences can be drawn against the person invoking this privilege.

Marital Privilege

There are two widely accepted privileges spouses may invoke. The first is a privilege that protects the disclosure of confidential communications between spouses. This privilege closely mirrors the attorney-client privilege; it protects confidential communications made between spouses during the course of the marriage. The other privilege is the protection from adverse spousal testimony. Spousal privileges are deemed justified because they foster the sanctity of the marriage. Spousal privilege is one of the oldest privileges, stemming from a time when a husband and wife were seen as one because the wife had no separate legal existence.

Originally, both spouses held the adverse spousal testimony privilege, meaning one spouse was prohibited from testifying against the other over the accused spouse’s objection. While some states like Minnesota and Connecticut have codified this common law privilege, federal courts and most states have abandoned it. Once spouses are divorced, the privilege no longer applies. The general rule today is that the testifying spouse holds the privilege, meaning someone can refuse to testify against their spouse or they can choose to waive the privilege and testify even over their spouse’s objection.

The privilege protecting confidential spousal communications is recognized in most states and is narrower than the general privilege. This privilege gives the party the right to preclude their spouse from testifying to confidential communications made between them. It also gives a spouse the right to refuse to testify against their spouse regarding confidential communications. To invoke the privilege, the asserting spouse must show the communication was made during the marriage, it was made in confidence, and it was made to convey a message to the other spouse. If the communication is made in front of third parties, the privilege is destroyed. Most states have a “crime-fraud exception” to the spousal communications privilege so that it does not apply to communications regarding ongoing or future crimes.

Other Professional Privileges

Physician’s and Therapist’s Privilege

Doctor-patient privileges protect communications between a patient and their doctors relating to medical treatment. The rationale behind the privilege is to encourage patients to communicate candidly with their medical providers so they can receive proper treatment. Opponents to the privilege take the position that a patient has no reason to not be candid with their doctor because the patient’s goal is to receive a correct diagnosis and proper treatment. Many states still recognize a general doctor-patient privilege. Federal courts do not. In the states that have a general physician-patient privilege, there are exceptions; for example, Pennsylvania restricts the scope of the privilege in personal injury cases.

The Supreme Court recognizes a psychotherapist-patient privilege in federal courts, and today, every state also has a privilege protecting communications made between patients and psychiatrists, psychologists, and licensed social workers. The therapist’s privilege is held by the patient, meaning disclosure is prohibited unless the patient consents. Normally, including third parties in a communication waives the privilege; however, statements made in group therapy sessions may be protected by the privilege. The privilege, however, does not extend to psychological evaluations pursuant to a court order or in Baker Act (involuntary commitment) proceedings. If a party agrees to undergo a psychological evaluation during a custody dispute or as part of an adoption proceeding, the results are not protected by privilege. The privilege also generally does not apply when a therapist suspects child abuse. Therapists are often obligated to report child abuse to law enforcement. States have also carved out other exceptions to the therapist’s privilege; for example, some states may require a therapist to disclose otherwise privileged information in order to prevent the substantial harm or death to someone else.

The Health Insurance Portability and Accountability Act (HIPAA) governs privacy rules relating to the disclosure of protected health information that most health care providers (including both doctors and mental health professionals) must abide by. HIPAA allows health care providers to make disclosures in response to court orders. Disclosure can also be made in response to a subpoena or discovery request without a court order as long as certain conditions are met: The requesting party must make assurances that the patient has been given adequate notice of the request and the party has made efforts to secure a protective order for the protected health information. 45 C.F.R. § 164.512(e) (2021). Generally, the best practice for obtaining information from a physician or mental health professional is to get either a court order or consent from the patient, including a HIPAA authorization form.

Domestic Violence Advocate’s Privilege

Most states have some form of privilege protecting communications between a domestic violence advocate and a victim of domestic violence. As of 2016, thirty-seven states have some form of a domestic violence privilege. Eleven states have an absolute domestic violence advocate privilege, meaning only the victim can decide whether disclosure can be made. Other states have carved out exceptions where the privilege does not apply; for example, some states do not apply the privilege where the victim testifies about a portion of the communication. Disclosure may also be permitted if an in-camera review of the communications reveals that they contain exculpatory evidence.

Accountant’s Privilege

A small number of states (including Colorado, Florida, Missouri, and Texas) recognize the accountant-client privilege, which protects communications between an accountant and their client made for the purposes of receiving accounting services. Like the other privileges discussed, the states that have codified an accountant-client privilege generally include a crime-fraud exception to the privilege. The Internal Revenue Code also codified the accountant-client privilege; however, it is limited to tax advice and cannot be used in state court proceedings. 26 U.S.C. § 7525 (2021). If an attorney is in a state without an accountant-client privilege and wishes to protect the communications, the attorney may be able to argue that the accountant was retained by the attorney to assist in rendering legal services to their client and, as such, the communications between the accountant and the client should be protected by the attorney-client or work product privilege.

Conclusion

Attorneys need to be aware of the various privileges that may arise in the context of a family law proceeding. Each state’s laws on privilege vary, so it is important for attorneys to know the extent of the privileges in their client’s jurisdiction.