The law considers certain conversations between the parties to certain relationships to be confidential. This means that a person who participated in the conversation cannot be compelled to disclose in a court of law what was said during the conversation.
The law protects communication, both oral and written, between the following pairs of participants:
- A married couple;
- An attorney and their client;
- A doctor and their patient;
- A religious advisor and advisee, or a priest and a penitent;
- A therapist and their patient.
The privileges for certain communications are creatures of state law, so the exact scope of a privilege depends on state law. Also, federal courts have their own rules regarding privileged communications and they may differ from state rules.
When Is Spousal Communication Privileged?
The law protects the substance of communications between spouses in different ways. First, communications between spouses are considered privileged, and so courts cannot compel the disclosure of conversations between spouses conducted in private. The privilege is lost if the communications are made in the presence of, or likely to be overheard by, third parties.
Second, a spouse can be considered incompetent to testify either for or against the other spouse in a civil or criminal trial. So, a spouse called as a witness against the other spouse may refuse to testify. In some cases, a spouse may prevent the other spouse from testifying against them. In both state and federal courts, however, the spouse who is called to testify may waive the privilege and choose to testify. The privilege applies to a same-sex marriage.
In federal cases in federal courts, the spousal immunity applies in criminal cases only. However, under state law, it may apply in both civil and criminal cases. The spousal privilege ends with the termination of the marriage, but protects conversations that occurred before and during the marriage
When Is Attorney-Client Communication Privileged?
The attorney-client privilege is one of the privileges most firmly rooted in the law. Generally, a client has a privilege to refuse to disclose and to prevent the attorney from disclosing confidential communications made for the purpose of providing legal services to the client. Of course, the privilege covers the attorney’s notes and legal strategies.
The privilege extends to those who aid the attorney in helping their client. So, associate attorneys, partners, secretaries, paralegals, and translators also cannot be compelled to testify against the client they represent.
All types of communications or exchanges between a client and attorney are included in the attorney-client privilege. So, the privilege would cover oral communications and documentary communications such as emails, letters, and even text messages.
The communication must be confidential. This means the communication is limited to the client and the lawyer. If anyone outside the attorney-client relationship receives the communication, e.g., a close friend copied on an email to the lawyer, the privilege is lost. Even if the communication is thought to be confidential by the parties, it loses its status as a privileged communication. That is referred to as “waiving” the privilege in legal terminology.
The communication must be made by a person who is a client of the attorney. There does not have to be a formal retainer agreement in place to establish the attorney-client relationship. It is enough if the client honestly believes they are consulting the lawyer for purposes of obtaining legal advice.
Of course, a corporation can be a “client” also. So, the privilege protects communications between the company’s lawyer, whether an “in-house” counsel who is a full-time employee of the or “outside” counsel at a law firm, and the company’s employees, so long as the communications are made within the scope of the duties of the employee’s job.
To be privileged, attorney-client communications must be made for the purpose of seeking or providing legal advice, but not when the lawyer is providing business advice.
There is a significant exception, and it provides that the privilege does not include communications made by a client to their attorney or an attorney to their client for the purpose of furthering a crime or fraud. If a client seeks advice from an attorney to use in the furtherance of a crime or fraud or to conceal a crime or fraud after it has been committed, then the communication is not privileged. If, however, the client has completed a crime or fraud and then seeks the advice of counsel to defend against criminal charges, the communications are privileged.
When Is Doctor-Patient Communication Privileged?
Doctors cannot disclose information regarding their patient, including the patient’s medical history and conditions. This includes the doctor’s observations and opinions. This privilege extends to psychiatrists who treat a patient’s mental illnesses. Psychiatrists are licensed physicians.
When a patient implicitly waives their doctor-patient privilege by filing a lawsuit against their doctor, e.g. if the patient files a lawsuit for medical malpractice against their physician,the patient only waives the privilege as to issues that are causally relevant to the medical condition at issue in the case. If the physician has treated the patient for other conditions, communications relating to that other treatment is not waived.
When Is Therapist-Patient Communication Privileged?
Therapist client confidentiality means that a person’s therapist cannot share any information about a patient with anyone else without first receiving authorization from the patient. Therapists can be psychologists, psychiatrists, and licensed clinical social workers Those to whom a patient’s confidential communication cannot be disclosed includes parents, significant others, law enforcement officials, or other therapists outside of the treatment relationship.
If law enforcement officials come to a therapist and request information about a patient without first getting authorization from that patient, the therapist can refuse to provide any information.
If a patient’s therapist is subpoenaed to testify in a court of law, they can only share information that the patient has agreed can be disclosed. They cannot reveal any new or confidential information, disclosure of which the patient has not approved.
If a patient decides to terminate the therapeutic relationship, the therapist is still obligated to keep all information about the patient confidential. They cannot discuss anything that happened during sessions with anyone without the patient’s prior authorization.
When Is Priest-Penitent Communication Privileged?
Also known as the clergy-penitent privilege, this privilege covers communications made in confidence by a person seeking spiritual guidance from a member of the clergy. The penitent must have a reasonable belief that the communication with the priest is confidential. Unlike the other privileges, this privilege can extend to communications made in the course of a group counseling session, although not all states recognize this exception.
Although the name of the privilege refers to a priest or member of the clergy, the privilege includes all religious authorities, including ministers, rabbis, sensei, imams, and lamas, among others.
When Are Confidential Communications Not Privileged?
Generally conversations are not considered privileged if someone overhears the conversation. For example, the doctor-patient privilege does not apply if made in the presence of another patient.
The spousal privilege does not apply if the conversation takes place in the presence of another person, such as a child, although some courts make an exception for very small children. In addition, spousal communications made within a jail or law enforcement building, even if the spouses are inside a private room, are not privileged. Marital communications are not privileged in suits between spouses, or when there is violent crime between spouses.
Each privilege has its exceptions and qualifications. In addition, there may be differences between federal law, which governs in federal cases in federal courts, and state courts. There can also be differences between civil cases and criminal cases.
Can the Confidentiality of a Communication Be Waived?
With spousal privileges, it depends on the court in which the privilege is being asserted. In criminal cases, the spouse who is called to testify is usually the one who can waive the privilege, although there are exceptions. In hearings and trials in civil courts, both spouses must agree to waive the privilege.
Seeking Legal Help
If you are involved in a legal issue involving a conversation that you believe may be privileged, you should speak with an experienced criminal defense attorney to ensure that your rights are protected. If privileged communication is an issue in a civil case, then you want to consult a civil trial attorney. If the
