Focusing public attention on emerging privacy and civil liberties issues

Privileges

Introduction

Black's Law Dictionary defines "privilege" as "a special legal right, exemption, or immunity granted to a person or class of persons; an exception to a duty." Black's Law Dictionary 1215 (7th ed. 1999). Basically, privileges are rights to withhold information, from any legal proceeding, without suffering legal consequences (being held in contempt of court). Privileges can either be created by statute or developed through the common law.

History of Privileges (Generally)

As Robert Catz and Jill Lange explain, the "Framers of the American legal system quite naturally looked to England as a foundation for establishing legal doctrine. English common law adopted the idea of privilege for certain groups of persons. However, even in England, the concept of privilege was met with some ambivalence; people viewed it as being established primarily for those favored by the Crown. In America, too, the privilege controversy continued. The Framers wanted an egalitarian system; they emphatically opposed the idea of a monarchy with its tradition of preferred treatment for those of a certain title or class. Many viewed privilege as a type of title/class obstacle to the search for truth and as an impediment to the right to a fair and just trial."

Originally, under the English legal system, jurors could only be empaneled if they had some knowledge of the underlying facts, or were a witness to the activities that caused the trial. But, deeply concerned with the search for truth, the system evolved. And, as the complexity of cases increased and the caseload of the courts began to grow, the courts began to allow witnesses to aid in the truth-seeking process. In order to get witnesses into court, compulsory process, requiring a witness to testify in the interest of society, was developed. Created at the same time, however, was a "privilege doctrine," protecting an individual's right to privacy for communications made in confidence.

These two doctrines repeatedly came into conflict with one another. Those who favored privacy believed that to compel disclosure of a confidential communication was inherently wrong. Disclosure either resulted in "shame" from having secrets revealed to the public, or "treachery," from the breach of an entrusted confidence. Therefore compelled testimony would infringe on the right of people to control the distribution of their personal information and keep people from sharing that information with their friends for fear their friends would be forced to reveal it.

However, the need to protect private information from compelled disclosure was not always recognized as a legal interest. Before a specific privilege was recognized, courts would make a case-by-case determination of the need for the specific privacy right, (i.e. protecting the communication between a lawyer and her client). This test balanced the validity of the right sought and the "need" for protection against society's interest in ascertaining the truth. Where the privacy interest outweighed society's interest a privilege was created.

Below is a discussion of both some of the common and unusual privileges that are found in jurisdictions throughout the United States.

  • Robert S. Catz & Jill J. Lange, Judicial Privilege,22 Ga. L. Rev. 89 (1987). (A well-written detailed history of privileges is provided at the beginning of this article, particularly pages 91 and 95.)

Attorney-Client Privilege

History

Attorney-Client privilege is the oldest and one of the most widely accepted of the known testimonial privileges. Originally, the privilege stemmed from the secrecy pledge of the oath and honor of the attorney and barrister. But as the "point of honor" privilege began to erode a new theory was needed to deal with the client's apprehension in consulting with a legal advisor. Gradually, the privilege came to be seen as one possessed by the client and not by the counsel; thus, it could be waived only by client consent.

Application: Statutes & Cases

Although the parameters of the privilege vary from jurisdiction to jurisdiction the following four requirements are nearly universal: First, there must be a relationship between attorney and client and, second, it must exist in reference to the matter to which the communication relates. Third, the communication must be made under circumstances showing the client intended to make communication in confidence, and fourth the client must show she had a reasonable expectation of confidentiality. Communication can be spoken or written, as well as an act performed in the attorney's presence, like showing a weapon used in the commission of a crime.

Information obtained from third parties is not covered by the privilege, but may still be immune from discovery under other provisions of evidence law. In addition, the material gained from third parties on behalf of the client ,or at the client's request, may be protected by the attorney's, state-created, professional responsibility or ethics requirements.

In some limited cases, the identity and address of the client may be protected by the privilege as well, although these instances are rare. Usually this type of information is necessary for the judicial process or judicial proceedings and so it would not be privileged. However, where the mere identity or location of a client would be prejudicial to the client, the information may be privileged.

The privilege does not protect communications relating to future crimes, nor does it allow the attorney's services to be used to perpetrate a crime. Generally this is codified in either the attorney-client privilege statute or the state rules of professional responsibility, or both.

Finally, only the client can waive the privilege and the privilege survives the client. Therefore, even after a client's death, an attorney can not reveal the information without the prior approval of the client. This was recently articulated by the United States Supreme Court in Swidler & Berlin, et al. v. United States, 524 U.S. 399 (1998) (case regarding "Travelgate," where a grand jury, at the Independent Counsel's request, sought handwritten notes from the attorney for the late Vincent Foster).

Resources

  • Robert S. Catz & Jill J. Lange, Judicial Privilege,22 Ga. L. Rev. 89 (1987). (A history of attorney-client privilege is provided at pages 104-5.)
  • Richard T. Farrell, Prince, Richardson on Evidence, (11th ed. 1995) and 2002-2003 Cumulative Supplement.
  • Wigmore, Evidence in Trials At Common Law, (J. McNaughton rev. ed. 1961).

Certified Public Accountant (CPA) Privilege

History

Some states recognize a privilege for the communications between a certified professional accountant and client. However, the United States Supreme Court has, on numerous occasions, refused to recognize such a privilege.

Historically, courts have been hesitant to recognize such a privilege because one of a CPA's ethical duties is to report to the public whether management's representations, of the financial condition of a public entity, are fair. The CPA is regarded as the "public watchdog," and the Sarbanes-Oxley Act of 2002, Pub. L. No. 107-204, 116 Stat. 745 (July 30, 2002), reinforces that notion.

Application: Statutes & Cases

Probably due to the corporate scandals like Enron, Colorado has recently amended its CPA-Client statute to include more detailed provisions on the disclosure of information for public accountability. Colo. Rev. Stat. § 13-90-107. The statute provides that, "a certified public accountant shall not be examined without the consent of his or her client as to any communication made by the client to him or her in person or through the media of books of account and financial records or his or her advice, reports, or working papers given or made thereon in the course of professional employment; nor shall a secretary, stenographer, clerk, or assistant of a certified public accountant be examined without the consent of the client concerned concerning any fact, the knowledge of which he or she has acquired in such capacity."

Nevada, in Nev. Rev. Stat. § 49.185, provides that, "a client has a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications: "(1) Between himself or his representative and his accountant or his accountant's representative. (2) Between his accountant and the accountant's representative. (3) Made for the purpose of facilitating the rendition of professional accounting services to the client, by him or his accountant to an accountant representing another in a matter of common interest." Nev. Rev. Stat. § 49.195, says the privilege may be claimed by, " (1) The privilege may be claimed by the client, his guardian or conservator, the personal representative of a deceased client, or the successor, trustee or similar representative of a corporation, association or other organization, whether or not in existence. (2) The person who was the accountant may claim the privilege but only on behalf of the client. His authority to do so is presumed in the absence of evidence to the contrary."

Resources

  • United States v. Arthur Young & Co., 465 U.S. 805, 817 (1984) (refusing to recognize an [certified professional] accountant-client privilege for federal cases).
  • Thomas J. Molony, Is the Supreme Court Ready to Recognize Another Privilege? An Examination of the Accountant-Client Privilege in the Aftermath of Jaffee v. Redmond, 55 Wash. & Lee L. Rev. 247 (Winter 1998).

Clergy Privilege

History

As Robert Catz and Jill Lange detail, "Clergy-Communicant Privilege arose in response to the traditional 'Seal of Confession' required by the Catholic Church. The privilege disappeared during the English Reformation, but later reappeared both in England and in the United States. One explanation for its existence is that preserving confidential communications made in the interest of spiritual rehabilitation or solace is deemed to 'overbalance the possible benefit of permitting litigation to prosper.' Today, the privilege is recognized by statute in nearly every state. Generally, the privilege applies to ministers, priests, and rabbis; it is doubtful whether lay officials or self-designated ministers would be protected."

Application: Statutes & Cases

Most states, if not all, have statutes protecting the conversations between a clergy member and the communicant. In Rhode Island, R.I. Gen. Laws § 9-17-23, provides that: "in the trial of every cause, both civil and criminal, no member of the clergy or priest shall be competent to testify concerning any confession made to him or her in his or her professional character in the course of discipline enjoined by the church to which he or she belongs, without the consent of the person making the confession. No duly ordained minister of the gospel, priest, or rabbi of any denomination shall be allowed in giving testimony to disclose any confidential communication, properly entrusted to him or her in his or her professional capacity, and necessary and proper to enable him or her to discharge the functions of his or her office in the usual course of practice or discipline, without the consent of the person making the communication."

Similarly, North Carolina, in N.C. Gen. Stat. § 8-53.2, provides that "no priest, rabbi, accredited Christian Science practitioner, or a clergyman or ordained minister of an established church shall be competent to testify in any action, suit or proceeding concerning any information which was communicated to him and entrusted to him in his professional capacity, and necessary to enable him to discharge the functions of his office according to the usual course of his practice or discipline, wherein such person so communicating such information about himself or another is seeking spiritual counsel and advice relative to and growing out of the information so imparted, provided, however, that this section shall not apply where communicant in open court waives the privilege conferred."

Note on Church Sexual Abuse Scandals

The recent coverage of the sexual abuse scandals of the Catholic Church warrants a brief discussion.

The Clergy-Communicant privilege also covers the "confessions" of priests to bishops, and bishops to cardinals, etc. These confessions, whether of sexual abuse or not, are then privileged and may not be revealed without the consent of the confessor. This would prevent the confessions from being obtained for any type of court proceedings.

As a result of this privilege, the church has been reluctant to report any allegations of sexual abuse to authorities. But there have been calls for a modification of the privilege, by enacting a requirement for reporting allegations of sexual abuse to local authorities.

In addition, although unrelated to the Clergy-Communicant privilege, there are two legal doctrines preventing victims of sexual abuse from suing either alleged abusers or the Catholic Church itself. The first problem is that many states, either by statute or by common law principles have given the Church Charitable Immunity.

Charitable immunity, prevents a charitable organization from being sued either for negligence by the organization itself, or for the negligence of its employees. The doctrine was developed to protect church-owned and run hospitals from suits for medical malpractice. However, the immunity was later extended to cover negligent hiring, and then all negligence claims against these types of organizations. In some limited circumstances, this immunity may even guard against lawsuits for non-negligent misconduct. See, e.g.,N.J. Stat. Ann. 2A:53A-7, which provides that "no nonprofit corporation, society or association organized exclusively for religious, charitable or educational purposes or its trustees, directors, officers, employees, agents, servants or volunteers shall, except as is hereinafter set forth, be liable to respond in damages to any person who shall suffer damage from the negligence of any agent or servant of such corporation, society or association, where such person is a beneficiary, to whatever degree, of the works of such nonprofit corporation, society or association; provided, however, that such immunity from liability shall not extend to any person who shall suffer damage from the negligence of such corporation, society, or association or of its agents or servants where such person is one unconcerned in and unrelated to and outside of the benefactions of such corporation, society or association." This statute was passed to overturn, Schultz v. Roman Catholic Archdiocese of Newark, 95 N.J. 530, 472 A.2d 531 (1984), a decision of the New Jersey Supreme Court that had struck down the common law charitable immunity privilege in New Jersey.

The other problem is the statute of limitations. Built into the concept of law is the notion that there should be a period after which, a person can be relieved from liability for wrongdoing. If the victim or the State weights too long to bring charges, it can affect the ability of the accused to get a fair trial. Therefore, if after performing an act which could result in civil or criminal charges, those charges are not brought within the specified time period, the charges can no longer be brought. In most states, the only charge without a statute of limitations is murder.

Because of these two legal concepts, some victims of sexual abuse at the hands of priests can not bring civil cases against the church. In addition, the State itself, might be barred from bringing an action against the Church.

Resources

  • Robert S. Catz & Jill J. Lange, Judicial Privilege,22 Ga. L. Rev. 89 (1987). (A history of clergy privilege is provided at pages 105-6.)

Journalist Privileges

History

No common-law privilege existed allowing journalists to refuse to disclose confidential sources. A statutory privilege began to appear in the late 1800s, protecting those journalists who refused to disclose such sources. Then in Garland v. Torre, 259 F.2d. 545 (1958), the United States Court of Appeals for the Second Circuit suggested that reporters could rely on the First Amendment for protection from evidentiary requests. Today, a journalist privilege rooted in the First Amendment is widely accepted.

Application: Statutes & Cases

There are two main privileges under the heading of "Journalist Privileges." These privileges are, almost always, for the reporter alone to assert. The source may not be able to prevent the disclosure of his or her name if the reporter chooses to release that information. The first privilege, is the right of a reporter to refuse to disclose confidential sources (Confidential Source Privilege). The second privilege, is the right of a reporter to protect non-confidential, but unpublished information from being sought in court (Non-confidential News Privilege).

In Branzburg v. Hayes, 408 U.S. 665 (1972), the U.S. Supreme Court found held that "the First Amendment interest asserted by the newsperson was outweighed by the general obligation of a citizen to appear before a grand jury or at trial, pursuant to a subpoena, and give what information he or she possesses." Despite this ruling, a majority of courts do recognize a Confidential Source Privilege, rooted in the First Amendment.

Numerous courts, after engaging in a three-part balancing test evaluating whether the requested information is (1) material and relevant, (2) necessary or critical to his or her case, and (3) unavailable from any other source; have upheld this privilege, and some states have even codified this into law. See, e.g.,New York's "Shield Law," NY Civil Rights Law § 79-h(b), which provides absolute protection in cloaking "any news obtained or received in confidence or the identity of the source of any such news... ."

The privilege, which allows reporters not to reveal the names of their sources, is necessary to ensure the free flow of information. Sources, with potentially damaging but important information, may be reluctant to provide the media with information of public importance if they know the information may be attributed to them. I.e. someone who wishes to expose corporate or governmental wrongdoing, would not want their identity disclosed for fear of retribution.

The Non-confidential News privilege, has been recognized by fewer jurisdictions and usually does not act as an absolute privilege. Rather, this privilege will be qualified and either the court or a statute will determine the circumstances under which such information will be privileged. See, e.g.,NY Civil Rights Law § 79-h(c), which codified O'Neill v. Oakgrove Construction, 71 N.Y.2d 571, 528 N.Y.S. 1 (1988) (using the same three-part balancing test mentioned above).

Resources

  • Robert S. Catz & Jill J. Lange, Judicial Privilege,22 Ga. L. Rev. 89 (1987). (A history of clergy privilege is provided at page 107.)
  • Romualdo P. Eclavea, Annotation, Privilege Of News gatherer Against Disclosure Of Confidential Sources Or Information, 99 A.L.R.3d 37 (1980). (A detailed discussion of the privilege.)
  • Alan S. Wasserstrom, Annotation, Reportorial Privilege As To Nonconfidential News Information, 60 A.L.R.5th 75 (1998). (A detailed discussion of the privilege.)
  • The Reporters Committee for Freedom of the Press web site on the reporter's privilege.

Medical (and related) Privileges

Doctor-Patient / Dentist-Patient / Podiatrist-Patient / Chiropractor-Patient / Nurse Patient

History

Medical ethics for centuries have respected patients' need for confidentiality. But the physician-patient privilege did not exist at common law. Nineteenth century legislatures created the privilege as a public health measure to encourage people to seek medical assistance for socially unacceptable diseases. See Territory v. Corbett, 3 Mont. 50 (1877) (where doctor-patient privilege was not recognized at common law).

The Federal Rules of Evidence do not contain a physician-patient privilege, and although federal courts may recognize such a privilege under federal law, most are reluctant to do so. Instead, doctor-patient privilege and the related privileges are relegated to use in cases (both federal and state), where state law applies.

Application: Statutes & Cases

Although most states do not recognize all of these privileges, one way of creating such a privilege can be seen in NY CPLR § 4504: "Unless the patient waives the privilege, a person authorized to practice medicine, registered professional nursing, licensed practical nursing, dentistry, podiatry or chiropractic shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity."

Under this statutory scheme, doctors, dentists, podiatrists, chiropractors and nurses may not disclose any information obtained from the patient in the course of treating the patient. Specifically, information needed to diagnose a problem, information obtained from test results done at the request of the patient by the practitioner, and other such "medical" information is protected from discovery.

It is important to remember though that this privilege can be easily waived. If in court proceedings, either civil or criminal, the patient puts her medical condition in issue, then this privilege is automatically waived. For example, an insanity defense in a criminal case would remove, from coverage under the privilege, a patient's medical records relating to mental condition, both before and after the incident. In a civil action, for personal injury sustained in an accident, or as the result of someone's negligence, medical records both before the incident and after would also be removed from the protection of the privilege.

Psychotherapist Privilege: Psychiatrist (MD)-Patient / Psychologist (PhD)-Client / Social worker-Client

History

Psychotherapist-Patient Privilege did not exist at common law; however, it has met with more consistent approval than the physician-patient privilege. The psychotherapist-patient privilege derives from the Freudian model of psychoanalysis which relied on patient confidence and full disclosure for effective treatment. Consequently, the privilege protects only confidential communications, that is, those communications that are necessary for treatment. Further, while the broad privilege includes psychologists and psychiatrists, most state statutes limit this privilege's scope by specifying the types of professionals covered.

Some states treat psychiatrists (M.D.), and psychologists (Ph.D), differently. In those states, psychiatrists-patient privilege is governed by the doctor-patient privilege. See, e.g.,NY CPLR § 4504 (which pertains to psychiatrists) Cf.NY CPLR § 4507 (which pertains to psychologists only, and is actually a more protective privilege than doctor-patient privilege). In addition many states, if they have either or both privileges, separate their privileges for psychologists and for social workers. But the rationale for the privileges are similar, free and open discussion to provide effective treatment.

Application: Statutes & Cases

Under Maryland's psychotherapist privileges, Md. Cts & Jud Pro Code. Ann. § 9-109, "[u]nless otherwise provided, in all judicial, legislative, or administrative proceedings, a patient or the patient's authorized representative has a privilege to refuse to disclose, and to prevent a witness from disclosing: (1) Communications relating to diagnosis or treatment of the patient; or (2) Any information that by its nature would show the existence of a medical record of the diagnosis or treatment." Alaska extends its privilege for psychologists to "psychological associates." Alaska Stat. § 08.86.200.

Social worker privilege is less prevalent than the privilege for psychologists. Utah's social worker privilege, Utah Code Ann. § 58-60-113 provides: "if the information is communicated in confidence and for the purpose of diagnosing or treating the patient, a patient has a privilege, during the patient's life, to refuse to disclose and to prevent any other person from disclosing (1) diagnoses made, treatment provided, or advice given, by a physician or mental health therapist, (2) information obtained by examination of the patient, and (3) information transmitted among a patient, a physician or mental health therapist, and persons who are participating in the diagnosis or treatment under the direction of the physician or mental health therapist, including guardians or members of the patient's family who are present to further the interest of the patient because they are reasonably necessary for the transmission of the communications, or participation in the diagnosis and treatment under the direction of the physician or mental health therapist."

Similarly, Nevada recognizes a social worker privilege. But it's privilege statute, Nev. Rev. Stat. § 49.215, recognizes this privilege in the context of it's doctor-patient privilege. Texas's privilege, Tex. Health & Safety Code Ann. § 611.002, provides protection for "communications between a patient and a professional, and records of the identity, diagnosis, evaluation, or treatment of a patient that are created or maintained by a professional... ."

Pharmacist-Customer

Georgia recognizes a pharmacist-customer privilege. Ga. Code Ann. § 24-9-40 provides that: "no pharmacist ... shall be required to release any medical information concerning a patient except on written authorization or other waiver by the patient, or by his or her parents or duly appointed guardian ad litem in the case of a minor, or upon appropriate court order or subpoena... ."

This privilege can be waived "to the extent that the patient places his or her care and treatment or the nature and extent of his or her injuries at issue in any administrative, civil, or criminal proceeding." Id.

Optometrist-Patient / Speech pathologist-Client / Audiologist-Client

Montana, in Mont. Code Ann. § 26-1-806, provides that "a speech-language pathologist or audiologist cannot, without the consent of his client, be examined in a civil action as to any communication made by the client to him." Utah also provides a privilege for speech pathologists and audiologists. Utah Code Ann. § 58-41-16.

Washington State, in Wash. Rev. Code Ann. § 18.53.200, provides that "the information and records of a licensed optometrist pertaining to a patient shall be privileged communications, the same as now or hereafter may exist in the relationship of physician and patient and shall not be released or subjected to disclosure without the consent of the patient or as otherwise required by law."

Resources

  • Tom Beauchamp & James Childress, Principles of Biomedical Ethics 410 (4th ed. 1994).
  • Robert S. Catz & Jill J. Lange, Judicial Privilege,22 Ga. L. Rev. 89 (1987). (A history of psychotherapist privilege is provided at pages 106-7.)
  • For more information on medical records privacy, see EPIC's page at: http://www.epic.org/privacy/medical/

Spousal and Parent-Child Privileges

Spousal (Marital) Privilege

History

In Wolfle v. United States, 291 U.S. 7 (1934), the U.S. Supreme Court recognized that a confidential communication between husband and wife was privileged. This was reaffirmed in Blau v. United States, 340 U.S. 332 (1951), where the government sought the whereabouts of the wife of defendant Blau and he obtained his knowledge as to where his wife was by communication from her.

In Trammel v. United States, 445 U.S. 40 (1980), the U.S. Supreme Court modified the rule it handed down in Hawkins v. United States, 358 U.S. 74 (1958), so that "the witness-spouse alone has a privilege to refuse to testify adversely; the witness may be neither compelled to testify nor foreclosed from testifying."

Although most states follow the federal rule, or some variation of it, some states refuse to follow the federal rule.

Application: Statutes & Cases

Two types of marital privilege exist: spousal testimonial privilege either gives a witness the right to refuse to testify against his or her spouse, to prevent testimony by the spouse, or makes the spouse incompetent to testify. Marital communications privilege, protects confidential spousal communications.

An example of spousal testimonial privilege can be seen in Arizona. Under Ariz. Rev. State. § 12-2231, "in a civil action a husband shall not be examined for or against his wife without her consent, nor a wife for or against her husband without his consent."

An example of marital communications privilege can be seen in South Dakota. Under S.D. Codified Law Ann. § 19-13-12, "a communication is confidential if it is made privately by any person to his or her spouse during their marriage and is not intended for disclosure to any other person."

Parent-Child Privilege

History

Few jurisdictions have accepted a Parent-Child Privilege. Several federal appellate courts have declined to recognize such a privilege. A trial court in New York was the first to recognize such a privilege grounded on a right of privacy, but no appellate-level court in New York has ever cited this approvingly. People v. Fitzgerald,101 Misc. 2d 712, 422 N.Y.S. 2d 309 (Westchester County Ct. 1979).

The idea, as with marital privilege, was to protect and encourage conversations in the family, without fear that the information disclosed to the parent by the child can be used against the child in a proceeding. In fact, as Monica Lewinsky states, the idea that a parent can be forced to testify against his or her child is "horrif[ying] and sicken[ing]."

Application: Statutes & Cases

At least two states, Minnesota and Idaho, adopted the privilege by statute.

Under Minn. Stat. Ann. § 595.02(j) "a parent or the parent's minor child may not be examined as to any communication made in confidence by the minor to the minor's parent. A communication is confidential if made out of the presence of persons not members of the child's immediate family living in the same household. This exception may be waived by express consent to disclosure by a parent entitled to claim the privilege or by the child who made the communication or by failure of the child or parent to object when the contents of a communication are demanded... ."

Under Idaho Rule of Evidence 514, "a child or ward has a privilege in a civil or criminal action or proceeding to which the child or ward is a party to refuse to disclose and to prevent the child's or ward's parent, guardian or legal custodian from disclosing any confidential communication made by the child or ward to the parent, guardian or legal custodian of the child or ward."

Both of these statutes only apply to children as "minors." Presumably, the inclusion of this was done to prevent the application of this privilege to communications between adult children and their parents.

Resources

  • See, In re Grand Jury, 103 F.3d 1140 (3d Cir. 1997), for a thorough discussion of how both federal and state courts have declined to recognize a "parent-child privilege."
  • Robert S. Catz & Jill J. Lange, Judicial Privilege,22 Ga. L. Rev. 89 (1987). (A discussion of marital privilege is provided at page 105.)
  • Richard T. Farrell, Prince, Richardson on Evidence, (11th ed. 1995).
  • Monica S. Lewinsky, Editorial, Tell Mama All About It? Not Without a Lawyer, L.A. Times, May 11, 2003, at M5.