#17217 - Evidence Chapter 10 Privileges - Evidence

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.

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)].

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 regard to (1) requests for legal advice relating to trust administration sent by personnel at D to Office of the Solicitor, and (2) legal advice sent from Solicitor’s office to personnel at Interior and Treasury Departments.

• TC ordered disclosure of almost all documents, and CoA denied D’s petition for mandamus. Both reasoned the trust relationship between P and D rendered attorney-client privilege inapplicable.

Opinion (Alito):

• The objectives of the attorney-client privilege apply to governmental clients.

  • The privilege aids government entities in obtaining legal advice founded on a complete and accurate picture.

  • Unless applicable law provides otherwise, government may invoke attorney-client privilege in civil litigation to protect confidential communications between government officials and government attorneys.

  • Governmental agencies and employees enjoy the same privilege as nongovernmental counterparts.

• Fiduciary exception: when a trustee obtains legal advice to guide the administration of a trust, and not for the trustee’s own defense in litigation, the beneficiaries were entitled to the production of documents related to that evidence.

  • Courts reasoned that the privilege does not apply here because the legal advice was sought for the beneficiary’s benefit and was obtained at the beneficiary’s expense by using trust funds to pay the attorney’s fees.

  • Riggs Nat. Bank of Washington, D.C. v. Zimmer: leading fiduciary exception case, court reasoned that (1) beneficiaries were the “real clients” of the attorney who advised the trustee on trust-related matters, so the attorney-client privilege properly belonged to beneficiaries rather than trustees; and (2) trustee’s duty to furnish trust-related information to the benefactors outweighed their interest in attorney-client privilege.

• But the Government is not a private trustee.

  • The relationship at hand is defined and governed by statutes, rather than the common law. This statutory relationship is limited compared to a trust relationship between private parties at common law.

• The two features justifying the fiduciary exception are absent in the relationship Congress established between the United States and the Tribe.

  • US did not obtain legal advice as mere representative of Tribe, nor is Tribe the real client for whom advise is intended. Government seeks legal advice here in a sovereign capacity, akin to a personal capacity rather than a fiduciary one. Government attorneys are paid out of Congressional appropriations at no cost to the Tribe.

    • Courts look to the source of funds as a strong indicator of precisely who the real clients are and a significant factor in determining who ought to have access to the legal advice.

  • Defined by statute, the US does not have the same common-law disclosure obligations as a private trustee.

• By law and regulation, the documents at issue are classes “property of the United States.”

  • Ownership of the resulting records are a significant factor in deciding who ought tohave access to the document.

Dissent (Sotomayor):

• Privileges should be construed narrowly.

• The US is in a conventional fiduciary relationship, and so the exception applies.

• This decision thwarts efforts to address the long history of government mismanagement of Indian resources.

Bentham, Rationale of Judicial Evidence

• The attorney-client privilege only helps those who have committed wrongdoing. If the information is exculpatory, it would come out. If it is inculpatory, it should come out.

Simon, The Kaye Scholar Affair

• Rationale for confidentiality with respect for...