AuthorAshley S. Lipson
C 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
Is It Admissible? 9-2
§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
9-3 Privilege §9.300
§9.100 Introduction
Throughout the years, legal scholars and judges
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
relationship, 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 respective states. But despite the diversity, the
reader should detect some consistency with respect
to certain basic principles that transcend state lines.
§9.200 Quick Explanation
The following is a list of eleven classic groups
involving privileged communications. Certain
conversations between the people listed in each duet
are privileged, meaning that those questions are
objectionable, 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
“confidential 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
privileged 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

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