Privileges on the UBE - Attorney / Client, Physician / Patient, & Spousal - Miscellaneous Rules of Evidence

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 There are four miscellaneous topics tested on the Bar exam within the subject of Evidence.  They include: 1) authentication of writings; 2) the best evidence rule; 3) judicial notice and; 4) privileges.  Many examinees do not pay particular attention to these four areas of law because we tend to focus on relevance, witnesses, and hearsay, the “Big 3” of Evidence, and rightly so! 

 

That said, we will face 3-5 MBE questions from these miscellaneous rules of law, and we can easily see an MEE issue on privileges.  Possible, but unlikely on/with the best evidence rule and authentication of writings.  Highly unlikely on the rule of law for judicial notice because it is quite easy and would be a rather straightforward MEE issue.   Therefore, since we know we will have 3-5 MBE questions covering these rules of law as well as a possible MEE issue coupled with the fact that these miscellaneous evidence rules of law are rather easy to memorize and recall?  We should memorize them!

 

This blog post is designed to breakdown the three applicable privileges on the UBE, 1) the attorney / client privilege; 2) the physician / patient privilege and 3) the spousal privilege.  A separate blog post is dedicated to the other three miscellaneous rules of evidence listed above, so feel free to search for that post if need be!

 

1 – The Attorney / Client Privilege –

 

The elements of this privilege are as follows: (1) a confidential communication made (2) between the attorney and client (or a representative of either) (3) made during a professional, legal consultation (4) unless the privilege is WAIVED, or an exception is applicable.

 

Therefore, keep in mind that the client must INTEND for the communication to be confidential! Also, the communication does NOT apply to a client’s knowledge of information, a pre-existing document, or other physical evidence.

 

Waiver of the Attorney / Client Privilege –


Three things to keep in mind with respect to waiver:

1 - Only the client has the power to waive!

 

2 – Subject Matter Waiver –

A voluntary waiver of the privilege as to some communication(s) will also waive the privilege as to other communications IF – (i) – the partial disclosure is intentional; (ii) – the disclosed and undisclosed communication(s) concern the same subject matter and; (iii) – fairness requirements that the disclosed and undisclosed communications be considered together.

 

3 – Inadvertent Waiver –

An inadvertent disclosure of a privileged communication will NOT waive the privilege so long as the privilege holder: (i) – took reasonable steps to prevent the disclosure and; (ii) – the privilege holder takes reasonable steps to correct the error.

 

Exceptions to the Attorney / Client Privilege –

There are three exceptions that we should be mindful of, as they come up quite often:

1 – the future crime or fraud – meaning that the client tells the attorney, for example, “help me disguise the bribes I made so they look like legitimate business expenditures.”

2 – where the client places legal advice in issue in the litigation and

3 – there is a dispute between the attorney and client that is now made a part of the claim – for example, there is a dispute between the parties concerning the amount of payments and attorney fees.

 

 

2 – The Physician / Patient Privilege –

This privilege is usually created by state statute.

 

This Privilege Applies to:

1 - Confidential communications or infomation acquired by the physician from the patient for purposes of diagnosis or treatment of a medical condition.

2 – The privilege is also applicable to PSYCHOTHERAPISTS (and they must be CERTIFIED).

3 – There is a  federal law distinction as well and if the claim is based SOLELY on federal substantive law? The privilege is ONLY for psychotherapists!

 

Exception to the Physician / Patient Privilege –

The privilege is lost if the patient EXPRESSLY or IMPLIEDLY puts his/her physical or mental condition in issue in the litigation!

 

BAR EXAM NOTE – As such, be sure to pay attention to the issue in litigation.  Did the patient put his or her physical or mental condition at/in issue?  If so, this is the natural exception to the physician / patient privilege. 

 

Also, it should be noted that if the statement is NOT related to medical treatment or diagnosis? The statement does NOT qualify for this privilege!

 

2 – The Spousal Privilege –

There is a real distinction between spousal immunity and the confidential communication between spouses.  See below for a handy chart that differentiates the two.  This is a major of are of confusion in and with the spousal privilege.


1 – Spousal IMMUNITY –

In criminal cases ONLY, a spouse can not be compelled to testify about anything against the defendant spouse.  The question then becomes, who holds this privilege?  ONLY the WITNESS spouse and NOT THE defendant spouse! Thus, she may voluntarily testify against the defendant spouse if she chooses.

 

2 – Confidential Communication Between Spouses –

In ANY TYPE of case a spouse is NOT required and is not ALLOWED in the absence of consent by the other spouse to disclose a confidential communication. The question then becomes,  who holds this privilege? BOTH SPOUSES! EITHER may invoke the privilege! Waiver of the privilege occurs ONLY if both consent to disclosure.

 

EXCEPTIONS –

1 – communications or acts in furtherance of jointly perpetrated future crime or fraud;

2 – communications or acts destructive of family unit;

3 – no privilege in civil litigation between the spouses themselves, e.g., divorce, breach of K etc.

 

NOTE - WAIVER IS POSSIBLE HERE AS WELL – Voluntary disclosure by a spouse is available, so keep an eye out for that!

 

Spousal Privilege and Confidential Communications Chart:

SPOUSAL IMMUNITY                                            CONFIDENTIAL COMMUNICATION

1 – ONLY in criminal cases                                                                                             1 – Civ AND criminal cases

2 – NO confidential communication needed                                                            2 – confidential communication NEEDED

3 – Includes matters learned before marriage                                                         3 – Does NOT include matters learned before marriage

4 – After divorce, can testify to matter learned                                                      4 – After divorce, CAN NOT testify on matters learned

before OR during marriage                                                                                           during marriage

5 – In federal court, witness spouse HAS priv                                                          5 – EITHER spouse holds the privilege

6 – NOT foreclosed from testifying                                                                             6 – FORECLOSED from testifying


Conclusion

          It is extremely important to understand the different types of privilege, along with the applicable exceptions and applications.  Success on the likely 2-3 MBE questions in this area of law, and perhaps success on an evidence MEE issue depends on your knowledge of the law. For more information concerning this section of Evidence, another area of Evidence, or a different legal topic tested on the UBE, please do not hesitate to contact us at PassYourBarExam@gmail.com 

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