AuthorAshley S. Lipson
chApter 9
§9.100 Introduction
§9.200 Quick Explanation
§9.300 General Legal Analysis
§9.400 State Rules
§9.500 The Privileges Individually Considered
§9.501 Lawyer - Client Privilege
§9.501.1 State Application
§9.501(a) Paralegal Privilege
§9.502 The Work Product Doctrine
§9.503 Doctor - Patient Privilege
§9.503.1 State Application
§9.504 Therapist - Patient Privilege
§9.504.1 State Application
§9.505 Accountant - Client Privilege
§9.505.1 State Application
§9.506 Clergyman - Penitent Privilege
§9.506.1 State Application
§9.507 Husband - Wife Privilege
§9.507.1 State Application
§9.508 Parent - Child Privilege
§9.508.1 State Application
§9.509 Informant - Police Privilege
§9.509.1 State Application
§9.510 Journalist - News Source Privilege
§9.510.1 State Application
9-163 Privilege
§9.511 Confidential Institutional Communications
§9.511.1 State Application
§9.512 Privilege Against Self-Incrimination
§9.512.1 State Application
§9.513 Self-Critical Analysis Privilege
§9.100 Is It Admissible? 9-164
§9.100 Introduction
Throughout the years, legal scholars and judg-
es have formed the notion that thieves, muggers,
rapists, hit-and-run drivers, squealers, unfaithful
spouses, and wrongdoers in general, should all have
somewhere safe to go and talk of their afflictions.
At least, that’s what the creators and perpetuators of
the law of privilege believe. More particularly, the
theory suggests that it is beneficial if certain people
can be “trusted” to keep quiet. Were this not the
case, people would be reluctant to seek professional
help. And this would, of course, create a national
crisis—shrinks, doctors, and we lawyers might be
out of business.
In a courtroom setting, the term “privilege”
means that the witness has a legal right to refuse
to answer a question because of some special rela-
tionship, law, or constitutional guarantee. Questions
that violate an established privilege may be objected
to. If no objection is made, however, the privilege
will be waived.
The law of privilege presents a unique set
of problems because of its lack of uniformity
throughout the fifty states. Some states recognize
privileges that others do not. Even the Federal Rules
of Evidence, which have created nearly-complete
uniformity for 85 out of 100 jurisdictions (i.e., 50
federal plus 35 states), avoids the privilege issue by
referring the reader back to the laws of the respec-
tive states. But despite the diversity, the reader
should detect some consistency with respect to cer-
tain basic principles that transcend state lines.
§9.200 Quick Explanation
The following is a list of eleven classic groups
involving privileged communications. Certain con-
versations between the people listed in each duet are
privileged, meaning that those questions are objec-
tionable, and need not be answered. We place some
emphasis upon the word “certain,” because there
are exceptions. Here is the list of the duos:
1. Lawyer - Client
2. Doctor - Patient
3. Therapist - Patient
4. Accountant - Client
5. Clergyman - Penitent
6. Husband - Wife
7. Parent - Child
8. Informant - Police
9. Journalist - News Source
10. Confidential Institutional Communications
11. Self-Incrimination (i.e., Person - Self)
1. What did your lawyer tell you to say at this
2. Did you confess any crimes to your priest?
3. What did you tell your psychiatrist?
Questions that involve conversations or
exchanges of information between professionals,
clergymen, and close family members. Any “con-
fidential communication” might be a candidate for
some type of privilege.
“Objection. Privileged.”
A. “The privilege has been waived.”
B. “Opposing counsel has not established
the foundation elements required for
the assertion of this privilege.” (See
§9.501 through §9.512.)
§9.300 General Legal Analysis
The laws pertaining to privilege are complex, at
times inconsistent, and may vary from state to state.
So determining whether or not a question seeks priv-
ileged information is not always a simple task. The
Federal Rules of Evidence, which normally provide
a model for the states to follow, offer very little help.
Fed. R. Evid. 501 directs the reader to other sources
with the following wordy instructions:
Privileges in General. The common law—
as interpreted by United States courts in the
light of reason and experience—governs a
claim of privilege unless any of the follow-
ing provides otherwise: the United States

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