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Privileges & Confidentiality FAQ

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A legal privilege excludes certain items and communications from disclosure. 

 

It allows a party to withhold evidence, even though the evidence may be relevant to the case. 

 

As a matter of public policy, the law recognizes that it's more beneficial to protect certain items and communications from disclosure to encourage honest and upfront communications.

Even if you believe something is privileged and does not need to be disclosed, it still needs to be identified.  Fully disclose all communications and other items to your attorney so that he/she can evaluate whether a privilege applies and identify appropriately.

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1)  What is a legal privilege?

 

Some of the most common legal privileges in the personal injury practice can include:

  • Attorney-Client Privilege

  • Attorney Work Product Privilege

  • Physician-Patient Privilege

  • Psychotherapist-Patient Privilege

  • Spousal Communication Privilege

  • 5th Amendment Right to Silence Privilege

  • Trade Secrets Privilege

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2)  What are the most common legal privileges?

 

Generally, a client’s communications with their attorney are privileged and confidential.  

 

For this reason, it’s important to be truthful with your attorney at all times, even with embarrassing or unfavorable information. 

 

However, there are some exceptions.  For instance, an attorney cannot engage in communications in furtherance of a crime. 

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3)  Are my communications with my attorney privileged?

 
 

Generally, your communications with your spouse are privileged in a personal injury case, and the spouse cannot be compelled to disclose communications between you and the spouse. 

 

This is known as the Spousal Communication Privilege, and it is statutory recognized for criminal cases.

However, this privilege does not apply to communications made before your marriage.  Also, if the communications are relevant to proving the case, it may not apply.

This privilege dissolves after a divorce or when one spouse dies

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4)  Are my communications with my spouse privileged?

Communications between a patient and mental health professional are privileged and not discoverable.  

 

This is true even if the injured plaintiff asserts claims for mental anguish due to the personal injury.

 

However, you can expect the defense attorney to argue that the injured plaintiff "opened the door" by making his or her mental health an issue in the case by claiming mental or emotional damages.  This is not true, and the client requires skilled advocacy by an experienced attorney to protect the client from harassing discovery, calculated to embarrass.

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5)  Are my mental health records privileged?

 

Any communication or statement made to a minister, priest, or rabbi is privileged when it is made for professing religious faith, seeking spiritual comfort, or seeking counseling.

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6)  Are my communications with my priest privileged?

 

Yes, it is possible to lose - or waive - a legal privilege. 

 

This occurs most often when the privileged communication is disclosed to an unprivileged third party.

For instance, text messages between you and your attorney are privileged.  But, if you share these text messages on social media or if you forward them to a friend, they lose their privilege.  

Also, physician-patient privilege is routinely waived by asserting claims for personal injuries.  This means that the defense attorney can potentially have access to your lifetime medical records and history.

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7)  Is it possible to lose a legal privilege?

 

If you share privileged communications with a friend or other unprivilged third party, the original communications lose their privilege protection.

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8)  If I share my emails or text messages with a friend, are they still privileged?

 

A privilege log is used by attorneys to identify privileged material without actually disclosing the substance of the privileged communications and evidence. 

 

It describes the material in sufficient detail for the opposing attorney to evaluate whether the privilege is valid or should be contested with the court.

Usually a privilege log identifies the following: 

  • Type of Document/Material;

  • Author(s);

  • Recipient(s);

  • General Subject Matter; and

  • Privilege Claimed.

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9)  What is a privilege log?

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