1. CHAP. 12 : PRIVILEGES P. JANICKE FALL 2011

2. 2011Chap. 12 -- Privileges2 DEFINITION A PRIVILEGE IS A RIGHT OF SOME PERSON OR ENTITY TO BLOCK THE ADMISSION OF CERTAIN KINDS OF EVIDENCE IN A CASE –EVEN THOUGH RELEVANT –EVEN THOUGH CRUCIAL –EVEN THOUGH NO PREJUDICE UNDER R403

3. 2011Chap. 12 -- Privileges3 PURPOSE TO FURTHER SOME SOCIETAL GOAL REFLECTS HUMANKIND’S EFFORT TO CIVILIZE ITSELF

4. 2011Chap. 12 -- Privileges4 ATTORNEY-CLIENT PRIVILEGE A PERSON WHO CONSULTS A LAWYER FOR THE PURPOSE OF OBTAINING LEGAL ADVICE HAS A PRIVILEGE TO BLOCK DISCLOSURE OF WHAT THE PERSON OR THE LAWYER SAID, IF THE CIRCUMSTANCES WERE APPARENTLY CONFIDENTIAL

5. 2011Chap. 12 -- Privileges5 HELL OR HIGH WATER THERE ARE NO EXCEPTIONS BASED ON NEEDS OF THE OTHER SIDE –THEY CAN TRY TO DISCOVER THE FACTS SOME OTHER WAY THE ONLY SIGNIFICANT EXCEPTION IS: A LATER ACTION BETWEEN THE LAWYER AND THE CLIENT –MALPRACTICE –ACTION TO COLLECT A FEE

6. 2011Chap. 12 -- Privileges6 SO-CALLED CRIME/FRAUD “EXCEPTION” WHERE CLIENT’S MAIN PURPOSE IS TO INVOLVE THE LAWYER IN ASSISTING IN A CRIME OR FRAUD, THE DEFINITION ISN’T MET (PURPOSE ISN’T TO GET LEGAL ADVICE) NOT REALLY AN EXCEPTION, BUT OFTEN CALLED ONE

7. 2011Chap. 12 -- Privileges7 WHERE LAWYER DECLINES THE REPRESENTATION NO EFFECT ON THE PRIVILEGE NO RELATIONSHIP NEEDED –SEE DEFINITION

8. 2011Chap. 12 -- Privileges8 EAVESDROPPER NO EFFECT –SEE DEFINITION : APPARENT CONFIDENTIALITY IS ENOUGH –SOME OLDER CASES CONTRA EAVESDROPPERS CAN BE ENJOINED

9. 2011Chap. 12 -- Privileges9 BOTH SIDES OF CONVERSATION COVERED TRADITIONALLY, ONLY WHAT THE CLIENT SAID WAS PRIVILEGED HOWEVER, WHAT THE LAWYER SAID USUALLY INHERENTLY REVEALS WHAT THE CLIENT SAID, AND IS CALLED DERIVATIVELY PRIVILEGED –E.G. : “HMMM! THEN YOU’RE GUILTY OF MURDER!”

10. 2011Chap. 12 -- Privileges10 MOST MODERN DECISIONS SHORTEN THE ANALYSIS AND SAY THE PRIVILEGE COVERS BOTH WAYS

11. 2011Chap. 12 -- Privileges11 THE CLIENT “OWNS” THE PRIVILEGE CAN DECIDE WHETHER OR NOT TO BLOCK DISCLOSURE IN COURT CAN DECIDE WHICH OF LAWYER’S HELPERS, IF ANY, SHOULD SEE IT

12. 2011Chap. 12 -- Privileges12 WAIVER ONLY BY THE CLIENT OR HIS REPRESENTATIVE (WHO IS OFTEN THE LAWYER) EXPRESSLY WAIVES –PERSONALLY AUTHORIZES DISCLOSURE OF THE COMMUNICATION –AUTHORIZES AGENT TO DISCLOSE THE COMMUNICATION WAIVES BY CONDUCT –REVEALS THE COMMUNICATION TO OTHERS “OUTSIDE THE FAMILY” –HANDS OVER DOCUMENTS CONTAINING THE COMMUNICATION

13. 2011Chap. 12 -- Privileges13 WAIVER BY CONDUCT: HALF-OPEN DOOR RULE –REVEALING PARTS IN TESTIMONY –RELYING ON “ADVICE OF COUNSEL” TO DEFEAT CERTAIN REMEDIES –REVEALING ONE OPINION BUT ASSERTING PRIVILEGE ON OTHERS ON SAME TOPIC NEW RULE 502 –CODIFIES THE HALF-OPEN RULE –OUGHT “IN FAIRNESS” TO BE CONSIDERED WITH WAIVED ITEM

14. 2011Chap. 12 -- Privileges14 LAWYER MUST HONOR THE CLIENT’S WAIVER INSTRUCTION –EVEN IF EMBARRASSING TO THE LAWYER A RESULT OF CLIENT “OWNING” THE PRIVILEGE

15. 2011Chap. 12 -- Privileges15 IMPACT OF WAIVER MADE IN A FEDERAL CASE MAY OPERATE AS A WAIVER ON OTHER PRIVILEGED COMMUNICATIONS ON SAME TOPIC, UP TO THE DATE OF THE WAIVER –IF THE TWO COMMUNICATIONS OUGHT “IN FAIRNESS” TO BE CONSIDERED TOGETHER

16. 2011Chap. 12 -- Privileges16 IMPACT OF WAIVER: COMMON LAW AND STATE RULE WAIVER AS TO ONE COMMUNICATION WAIVES AS TO ALL OTHER COMMUNICATIONS ON THE SAME TOPIC, UP TO THE DATE OF THE WAIVER TO PREVENT PICK-AND-CHOOSE TACTIC

17. 2011Chap. 12 -- Privileges17 TWO MARITAL PRIVILEGES [TEXAS RULE 504] MARITAL COMMUNICATIONS –MADE DURING MARRIAGE UNDER APPARENT PRIVACY CONDITIONS –PRIVILEGE BELONGS TO THE SPEAKING SPOUSE –DOESN’T EXTEND TO CONTEMPORANEOUS ACTIONS –PRIVILEGE SURVIVES DIVORCE

18. 2011Chap. 12 -- Privileges18 EXCEPTIONS ACTIONS BETWEEN THE SPOUSES CRIMINAL CASE WHERE ALLEGED VICTIM WAS THE LISTENING SPOUSE, OR A MINOR CHILD SEVERAL OTHER EXCEPTIONS SEE TEXAS EV. R. 504

19. 2011Chap. 12 -- Privileges19 EXAMPLE “LOOK HERE, HONEY, AT ALL THIS MONEY I ROBBED FROM THE BANK!” IF EX-WIFE BECOMES A WITNESS: –SHE CAN BE COMPELLED TO TESTIFY TO SEEING MONEY DUMPED BY HUSBAND ON THE BED –HUSBAND CAN PREVENT EX-WIFE FROM TESTIFYING TO WHAT HE SAID

20. 2011Chap. 12 -- Privileges20 PRIVILEGE NOT TO BE CALLED BY THE PROSECUTION [TEX. RULE 504] BELONGS TO THE WITNESS- SPOUSE, NOT THE ACCUSED SPOUSE ENDS WITH DIVORCE DOES NOT APPLY WHERE WITNESS- SPOUSE IS VICTIM

21. 2011Chap. 12 -- Privileges21 MANY OTHER STATES (AND MANY MOVIES) PRIVILEGE BELONGS TO THE DEFENDANT SPOUSE

22. 2011Chap. 12 -- Privileges22 PRIVILEGE AGAINST COMPELLED SELF-INCRIMINATION CAN’T BE REQUIRED TO TESTIFY CAN’T BE OBLIGED TO WRITE OUT A CONFESSION BUT: IF A PERSON WRITES A DOCUMENT ON HIS OWN INITIATIVE, THERE IS NO PRIVILEGE; THE DOCUMENT CAN BE SUBPOENAED, AND USED BY PROSECUTION

23. 2011Chap. 12 -- Privileges23 THE PROBLEM OF FILES THEY ARE CREATED VOLUNTARILY, SO ARE NOT PROTECTED GIVING THEM TO A LAWYER WON’T HELP BUT SOMETIMES, PRODUCING THEM IN RESPONSE TO SUBPOENA COULD HAVE EFFECT OF MAKING A FORCED STATEMENT -- >>

24. 2011Chap. 12 -- Privileges24 EXAMPLE SUBPOENA REQUESTING “ALL BANK DEPOSIT SLIPS THAT REFLECT DEPOSITS OF MONEY MADE FROM DRUG SALES” THIS SHOULD BE QUASHED, SINCE THE COMMAND IS PHRASED SUCH THAT COMPLIANCE WOULD AMOUNT TO A COMPELLED STATEMENT

25. 2011Chap. 12 -- Privileges25 EXAMPLE 2 SUBPOENA COMMANDING PRODUCTION OF “THE WEAPON YOU USED IN THE MAY 15 MURDER” ACT OF COMPLIANCE IS EQUIVALENT TO CONFESSION SHOULD BE QUASHED

26. 2011Chap. 12 -- Privileges26 CIVIL CASES: JUDICIAL COMMENT ON INVOKING THE 5TH PLAINTIFF INVOKING: –IS APT TO BE NON-SUITED IN TEXAS CIVIL DEFENDANT INVOKING: –WILL HAVE HEAVY NEGATIVE JUDICIAL COMMENT FOR INVOKING 5 TH IN TEXAS ALL OTHER PRIVILEGES ARE UNMENTIONABLE

27. 2011Chap. 12 -- Privileges27 CLERGYMAN-PENITENT [TEXAS RULE 505] WORKS SIMILARLY TO LAWYER- CLIENT PRIVILEGE CIVIL AND CRIMINAL CASES MAIN ISSUE TODAY IS: WHAT ORGANIZATIONS ARE RELIGIONS?

28. 2011Chap. 12 -- Privileges28 TRADE SECRET A QUASI-PRIVILEGE COURT CAN OVERRIDE IT IF MAINTAINING THE PRIVILEGE WOULD “WORK INJUSTICE” PRETTY EASY TO BREAK TODAY, WITH PROTECTIVE ORDER

29. 2011Chap. 12 -- Privileges29 PHYSICIAN-PATIENT PRIVILEGE [TEXAS RULE 509] NO SUCH PRIVILEGE IN CRIMINAL CASES IN TEXAS

30. 2011Chap. 12 -- Privileges30 PHYSICIAN-PATIENT PRIVILEGE [TEXAS RULE 509] ALMOST NONEXISTENT EVEN IN CIVIL CASES, DUE TO EXCEPTION (e)(4): –NO PRIVILEGE WHERE THE PATIENT’S CONDITION IS PART OF A PARTY’S CLAIM OR DEFENSE –[WHEN WOULD IT NOT BE, AND RETAIN RELEVANCE ??]

31. 2011Chap. 12 -- Privileges31 MENTAL HEALTH PROFESSIONALS [TEXAS RULE 510] NO PRIVILEGE IN CRIMINAL CASES IN CIVIL CASES: –TRACKS THE DOCTOR-PATIENT RULE –INCLUDES DRUG-ABUSE WORKERS –SAME GLARING EXCEPTION

32. 2011Chap. 12 -- Privileges32 PARTY’S WORK PRODUCT [FED. R. CIV. P. 26 (b)(3)] IS NOT A PRIVILEGE, BUT SOMEWHAT LIKE ONE PARTY’S MATERIALS PREPARED IN ANTICIPATION OF LITIGATION, OR FOR TRIAL, ARE COVERED –LAWYER STUFF IS A BIG PART OF IT CAN BE (AND OFTEN IS) OVERRIDDEN BY A SHOWING OF NEED

33. 2011Chap. 12 -- Privileges33 BUT, MENTAL IMPRESSIONS OF COUNSEL ARE MASKED OUT

34. 2011Chap. 12 -- Privileges34 TEX. R. CIV. P. 192 IS SIMILAR TO FED. PRACTICE: –COUNSEL IMPRESSIONS ARE CALLED “CORE” WORK PRODUCT, GENERALLY BLOCKED –THE REST IS CALLED “OTHER WORK PRODUCT” AND CAN BE HAD BY SHOWING “SUBSTANTIAL NEED” MEMO TO FILE IS WORK PRODUCT, NOT PRIVILEGED; BUT LIKELY IS “CORE”

35. 2011Chap. 12 -- Privileges35 WORK PRODUCT HAS NO APPLICABILITY IN CRIMINAL CASES –E.G., GRAND JURY SUBPOENA OVERRIDES

36. 2011Chap. 12 -- Privileges36 JOURNALIST’S PRIVILEGE FEDERAL CASE LAW CREATES A QUASI-PRIVILEGE: MUST EXHAUST OTHER POSSIBLE AVENUES OF EVIDENCE FIRST TEXAS HAS A STATUTE CREATING THIS PRIVILEGE:

37. 2011Chap. 12 -- Privileges37 JOURNALIST’S PRIVILEGE IN CIVIL CASES Tex. Civ. Prac. & Rems. Code §22.021 COVERS PERSONS WHO DO NEWS GATHERING OR DISSEMINATION – FOR A SUBSTANTIAL PORTION OF THEIR LIVELIHOOD OR –FOR SUBSTANTIAL FINANCIAL GAIN COVERS THEIR EMPLOYER COMPANIES ALSO COVERS UNIVERSITY SCHOLARS AND RESEARCHERS

38. 2011Chap. 12 -- Privileges38 THE PRIVILEGE: –TO REFUSE TO DISCLOSE ANY INFORMATION COLLECTED IN THAT CAPACITY, WHETHER OR NOT CONFIDENTIAL –TO REFUSE TO DISCLOSE SOURCES PUBLICATION OF THE INFORMATION BY A NEWS MEDIUM IS NOT A WAIVER

39. 2011Chap. 12 -- Privileges39 LIMITS: –COURT CAN ORDER DISCLOSURE BY JOURNALIST IF: NO OTHER WAY TO OBTAIN THE EVIDENCE SUBPOENA IS NARROWLY DRAFTED INTEREST OF JUSTICE OUTWEIGHS PUBLIC INTEREST IN NEWS FLOW –THE NEWS ARTICLE, BROADCAST, ETC., ITSELF IS NOT PRIVILEGED (WILL BE ADMISSIBLE IF COMPLIANT WITH THE OTHER RULES OF EVIDENCE, ESPECIALLY HEARSAY)

40. 2011Chap. 12 -- Privileges40 JOURNALIST’S PRIVILEGE IN TEXAS CRIMINAL CASES TEX. CODE. CRIM. PROC. ART. 38.11 SIMILAR TO THE CIVIL PRIVILEGE, EXCEPT: –NO SOURCE PRIVILEGE IF A FELONY IS COMMITTED IN JOURNALIST’S PRESENCE, AND NO OTHER WAY TO PROVE IT –NO SOURCE PRIVILEGE IF SOURCE ADMITTED COMMISSION OF A FELONY, AND NO OTHER WAY TO PROVE IT –NO SOURCE PRIVILEGE IF PROBABLE CAUSE EXISTS THAT SOURCE COMMITTED A FELONY, AND NO OTHER WAY TO PROVE IT

41. 2011Chap. 12 -- Privileges41 –NO SOURCE PRIVILEGE IF INFO IS OBTAINED BY BREACH OF GRAND JUROR’S DUTY OF SECRECY –NO SOURCE PRIVILEGE IF DISCLOSURE OF SOURCE IS NEEDED TO PROTECT LIFE OR PREVENT SERIOUS BODILY HARM

42. 2011Chap. 12 -- Privileges42 INFORMATION (OTHER THAN SOURCE) PRIVILEGE: –TRACKS THE CIVIL RULE –JUDGE CAN ORDER DISCLOSURE IF NECESSARY AND NARROWLY TAILORED INTER ALIA, MUST HAVE INDEPENDENT EVIDENCE THAT A CRIME HAS OCCURRED

43. 2011Chap. 12 -- Privileges43 ABROGATION OF PRIVILEGES IN CHILD-ABUSE CASES TEX. FAM. CODE §261.202 ALL PRIVILEGES VANISH IN PROCEEDINGS “REGARDING THE ABUSE OR NEGLECT OF A CHILD” EXCEPT: ATTORNEY-CLIENT PRIVILEGE MAIN PURPOSE: TO BLOCK MARITAL COMMUNICATION PRIVILEGE