Table of Contents

Chapter 10. Privileges 1

A. In General 1

B. Attorney-Client Privilege 2

1. Introduction 2

2. Elements of the Privilege 5

a. Communication 5

b. In Confidence 6

c. Between Attorney and Client 8

d. To Facilitate Legal Service 13

3. Waiver 16

4. Crime-Fraud Exception 20

C. Spousal Privileges 21

*NB: This outline accords with Sklansky, Evidence: Cases, Commentary and Problems 4th ed.

Chapter 10. Privileges

A. In General

Introduction

• Privileges differ from other rules of evidence in four important ways:

  • (1) They are not just rules of admissibility; they govern whether evidence can be introduced at trial, but also whether disclosure can be compelled before trial.

  • (2) Some parallel rules of professional responsibilities that impose duties of confidentiality, though they sometimes do not.

  • (3) Their purpose is not to improve accuracy of fact finding; sometimes they impair fact finding. Rather, they are typically justified on some goal outside the litigation process, often the protection of some relationship thought to be socially beneficial.

  • (4) Privileges are not codified in FRE. Only FRE 501 is relevant, and it directs federal courts to continue to develop and apply a federal common law of privileges—except with respect to civil claims or defenses for which state law provides the rules of decision. For those issues (typically raised in diversity cases), FRE 501 treats privileges as matters of substance rather than procedure (similar to second sentence of FRE 601).

FRE 501. Privilege in General

• The common law--as interpreted by United States courts in the light of reason and experience--governs a claim of privilege unless any of the following provides otherwise:

  • the United States Constitution;

  • a federal statute; or

  • rules prescribed by the Supreme Court.

• But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.

McCormick on Evidence

• Most common privileges:

  • against self-incrimination

  • communications between husband and wife, attorney and client, physician and patient.

• The warrant for privileges is the protection of interests and relationships which, rightly or wrongly, are regarded as of sufficient social importance to justify some sacrifice of availability of evidence relevant to the administration of justice.

Mueller & Kirkpatrick, Evidence

• Article V of FRE originally proposed to codify the law of privileges, but that proposal was rejected.

• Congress did, however, remove privileges from the general rulemaking power of the Supreme Court and adopted legislation providing that no formal rules of privilege promulgated by the Court can become effective until approved by an Act of Congress [28 USC §2074(b)].

B. Attorney-Client Privilege

1. Introduction

Introduction

• Attorney-client privilege is among the oldest privileges, and is a model for most professional privileges.

• Critics note it offers tremendous assistance to wrongdoers and coincides suspiciously with the professional interests of the bar.

Swidler & Berlin v. United States, 524 U.S. 3999 (1998)

Facts:

• D, an attorney, made notes of initial interview with client shortly before client’s death. P, government, represented by Office of Independent Counsel, seeks his notes for use in criminal investigation.

  • Client was Vincent W. Foster Jr., a White House official potentially involved in illegal conduct, who met with D to seek legal representation concerning possible congressional investigations.

  • D took three pages of notes, one of the first of which is the word “Privileged.” Nine days later, client committed suicide.

• Grant jury, at request of P, issued subpoenas for notes. D filed motion to quash, claiming attorney-client privilege. TC denied summons, but CoA reversed.

Opinion (Rehnquist):

• Purpose of privilege is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice.

• Issue here is the scope of the privilege: whether privilege survives death of the client.

  • Interpretation of privilege’s scope is guided by “principles of common law as interpreted by the courts in the light of reason and experience.” FRE 501.

  • Testamentary exception: general rule with respect to confidential communications is that they are privileged during testator’s lifetime and also after the testator’s death unless sought to be disclosed in litigation between testator’s heirs.

    • Rationale for such disclosure is that it furthers client’s intent.

• Posthumous application of the privilege furthers its goals of encouraging frank communication with counsel.

  • P argues only clients intending to perjure themselves would be chilled, as opposed to truthful clients or those asserting their Fifth Amendment privilege. But the attorney-client privilege serves broader purposes than the Fifth Amendment privilege against self-incrimination.

  • Loss of evidence is not so severe, since evidence wouldn’t exist without the privilege (clients wouldn’t have disclosed in absence of privilege).

• Privileges apply in criminal and civil cases alike.

  • Ex post balancing test of information against client’s interests, as proposed by P, would introduce substantial uncertainty.

  • Crime-fraud and testamentary exceptions are consistent with the purposes of the privilege, while a posthumous exception in criminal cases would appear at odds with the goal of encouraging frank discussion.

• Attorney-client privilege survives the death of the client in a case such as this.

  • FRE 501 does not mandate that a rule, once established, shall endure for all time.

• CoA reversed.

United States v. Jicarilla Apache Nation, 564 U.S. ____ (2011)

Facts:

• Proceeds from natural resources on land occupied by Tribe (P) were held in trust by Department of Interior (D). P sued D for damages arising from alleged mismanagement of funds in trust.

  • D asserted attorney-client privilege with...

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