PREMIUM LEGAL RESOURCES LEGAL FORMS ASK A LAWYER

PRIVILEGED COMMUNICATION

Conversation that takes places within the context of a protected relationship, such as that between an attorney and client, a husband and wife, a priest and penitent, and a doctor and patient. The law often protects against forced disclosure of such conversations. However, there are exceptions that can invalidate a privileged communication, and there are various circumstances where it can be waived, either purposefully or unintentionally.

Those statements made by a client to his counsel or attorney, or solicitor, in confidence, relating to some cause Or action then pending or in contemplation. Such communications cannot be disclosed without the consent of the client. In judicial proceedings, the law allows people to refuse to disclose the contents of certain privileged conversations and writings. Communications between an attorney and client, husband and wife, clergyperson and penitent, and doctor and patient are all privileged. In a few states, the privilege extends to a psychotherapist and client and to a reporter and her source.

To qualify for privileged status, communications must generally be made in a private setting (that is, in a context where confidentiality could reasonably be expected). The privilege is lost (waived) when all or part of the communication is disclosed to a third person.

These privileges are held by the client (but not the lawyer), the patient (but not the doctor or psychotherapist), the speaking (but not the spoken-to) spouse and both the clergyperson and the penitent. The lawyer, doctor, psychotherapist and spoken-to spouse, however, cannot reveal the communication without the other person's consent. The client, patient, speaking spouse, clergyperson and penitent may waive the privilege (that is, testify about the conversation) and also may prevent the other person from disclosing the information.

Example: Sue and Martin are divorcing. When Martin first left Sue, he emptied out a joint bank account and placed that money in a separate account in another state. He refuses to tell Sue where the money is, but he has told his lawyer, Ann. The discussion between Martin and Ann is privileged, and unless Martin authorizes Ann to tell Sue where the money is, or unless Martin himself tells another person about his conversation with Ann, Ann cannot be forced to disclose the information.

Marital communications privilege. Courts cannot force husbands and wives to disclose the contents of confidential communications made during marriage. The purpose of the privilege is to protect and promote honesty and confidence within marriages.

Example: Sandy has a budding marijuana brownie business which she operates out of her home. Sandy has told her husband, Doug, about her endeavors. All private conversations between them are privileged; that is, if Sandy is ever prosecuted for her business, she can prevent Doug from disclosing what he knows.

Spousal privilege. Courts cannot force husbands and wives to testify against each other. For example, when a former husband trying to gain custody of his child called his ex-wife's new husband as a witness to testify about her treatment of the child, the court refused to force him to testify on the grounds that it could jeopardize an existing marriage.

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