In-Depth Notes on Privilege Law and Key Cases

Introduction to Privilege Law

  • Rule 501 Overview:
    • Abandons attempts to define privilege law.
    • States that the common law process will govern privilege law.
  • Focused discussion on Attorney-Client Privilege.

Key Issues in Attorney-Client Privilege

  • When Does Privilege Attach? (Geonis Issue):
    • Privilege arises during professional consultations.
    • Case Reference: In Geonis, Jonas was informed by Luck that he would not represent him in a divorce case, therefore, conversations were not privileged.
Inadvertent Disclosures
  • Rule 502(b):
    • Addresses inadvertent disclosures and outlines three factors:
    1. Was the disclosure truly inadvertent?
    2. Did you take reasonable steps to prevent disclosure?
    3. Did you take reasonable efforts to rectify the error?
  • Example Case: Williams
    • Defense attorney accidentally sent privileged email to opposing plaintiff; court ruled privilege was waived due to inadequate preventive procedures and delay in filing to rectify.
  • Example Case: Blackman
    • Defense attorney-client conversation overheard in the courtroom; court ruled privilege maintained as intent of the client to proceed was clear despite location.
Source of Fees and Confidentiality
  • Generally not covered by privilege unless disclosing fees also discloses confidential communications.
  • Example Case: Washington Case
    • Court remanded case due to ambiguity over fee disclosures, indicating a need for more factual investigation.
  • Example Case: Hughes versus Mead
    • Simple agency engagement (returning typewriter) did not invoke privilege; no attorney-client relationship was established.

Duration of Privilege

  • General Rule: Attorney-client privilege survives death.
  • Cases: Switzerland and Berlin ruling that privilege remains even posthumously to protect societal interests.

Other Privilege Types Discussed

Medical Privileges
  • Comparison of Psychotherapist-Patient Privilege versus Physician-Patient Privilege.
  • Distinct handling of confidential communications in both contexts.
Family Privileges
  • Spousal Testimonial Privilege vs Marital Communication Privilege:
    • Critical to differentiate between these two as they operate distinctively.
Important Court Cases on Privileges
Trammell Case
  • Addressed whether negative spousal testimony (adverse witness) can be blocked; established that the witness spouse exclusively holds this privilege.
Domestic Violence Exception
  • No privilege for communications related to crimes against spouses.

Practical Applications of Privilege Law

Futility of Communication
  • Under Hawkins court decision, spousal testimonial privilege denies one spouse from preventing adverse testimony from the witness spouse unless both consent.
  • Evaluation of context—examples discussed included both intimate marital scenarios and external third-party disclosures.
Crime-Fraud Exception
  • Communications made while committing a crime are not privileged.
    • Highlighting the need for the privilege to protect public policy parameters.

Summary on Privileges

  • Legal Framework Included:
    • Privileges serve different public policy interests (e.g., support mental health services, encourage marital harmony).
    • Balance of disclosure versus preservation of private conversations is key in legal contexts.

Conclusion

  • Final analysis on balancing public policy vs. the need for full disclosure in legal proceedings.
  • Anticipation of the forthcoming exam covering all discussed privileges, their respective cases, and the legal justification behind each.
  • Importance of multidimensional approach toward privilege, ranging from historical foundations to modern applications.