Evidentiary Privileges

• Author: Mitchell K. Karpf
• Pages: 10-13

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must be satised: (1) there must be a communication

(2) between privileged persons (3) made in condence

(4) for the purposes of obtaining or providing legal assistance

for a client. Restatement (ird) of the Law Governing

Lawyers § 68 (2000). Communications can be in any form,

including nonverbal acts intended to communicate informa-

tion (e.g., nodding or indicating a number with raised

ngers). e privilege protects the content of the communi-

cation but not knowledge of the underlying facts. us, a

client can invoke the privilege if asked, “did you tell your

attorney you had an extramarital aair,” but not if asked,

“did you have an extramarital aair.” Further, while the

privilege does not protect documents that predate the

attorney-client relationship, it does protect information a

client communicates to their attorney along with the

document. e Restatement requires the communication be

made between “privileged persons” rather than “between a

client and her attorney” because the privilege applies to

consultations before the attorney-client relationship is

formed and also extends to “agents for communication.”

Agents for communication are people reasonably necessary to

facilitate the client’s communication with their attorney. is

could include interpreters, parents of a minor client, and

those hired by the attorney to assist in providing legal

services. e condence element requires the communicating

Most rules of evidence are designed to

promote the objectives of the witness’s oath:

“the truth, the whole truth, and nothing but

the truth.” However, the exclusionary rules

regarding privileges protect interests and

relationships that have enough societal importance to

warrant the sacrice of the availability of some evidence. e

availability and scope of privileges can vary widely by state.

is article will serve as an overview of privileges that often

arise in the context of family proceedings.

Attorney-Client Privilege

e attorney-client privilege is one of the most well-known

and sacrosanct privileges and serves as a model for many of

the other professional privileges. It encourages “full and frank

communication between attorneys and their clients and

thereby promote[s] broader public interests in the observance

of law and the administration of justice.” Upjohn Co. v.

United States, 449 U.S. 383 (1981). e attorney-client

privilege can be asserted in opposition to ocial demands for

information, such as deposition questions or subpoenas, or

to deny the admission of evidence at trial. e privilege lasts

forever, surviving the termination of the attorney-client

relationship and even the death of the client.

To invoke the attorney-client privilege, four elements

Evidentiary

Privileges

BY MITCHELL K. KARPF

Published in Family Advocate, Volume 44, Number 4, Spring 2022. © 2022 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof

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