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LEGAL PRIVLEGES & CONFIDENTIAL COMMUNICATIONS (CALIFORNIA)

LEGAL PRIVLEGES & CONFIDENTIAL COMMUNICATIONS (CALIFORNIA)Here’s a scenario for you: You stumble into church in order confess your past sins and allay the heavy burden that you have been carrying with you for many years. You climb into the booth and proceed to tell the silhouetted figure about your past – the armed robberies, the embezzlements, the drugs, the sex, that one sheep that stared at you from your bedroom window…

Then all of a sudden you realize in a panic that the person you are “confessing” to is not a priest after all, but your lawyer who happened to be in the church to advise a priest on matters that he can not divulge to you.

You need not panic. In either case, a court would not be able to force your priest or attorney to reveal what you said to them.

These are known as “privileged” conversations. California law allows for a number of different types of such “privileges” whereby people will not be forced to testify in court about what you may have told them in confidence.

Such privileges will only apply if conversations are truly held in confidence. Courts won’t recognize them if you end up repeating such conversations to other people who aren’t protected under the state law privileges.

In some instances (such as lawyers), people will be forced to invoke privilege protections and keep conversations confidential, even if they otherwise wouldn’t wish to.

In other instances (such as journalists), it is entirely up to the person who gathered the confidential information if he or she wishes to keep it a secret (though professional standards usually compel them to keep it as such).

Sometimes the privilege can be invoked not only by the person who engaged in the confidential discussion directly, but also his or her guardian, representative, or trustee.

Among the primary types of privileges under California law are:

The Attorney-Client Privilege

Considered by some to be the “granddaddy” of all privileges. A lawyer can not reveal private information given to him by an individual while serving in his professional capacity. Unlike some other privileges, an attorney can not reveal such conversations even he or she wants to, unless the client gives permission to do so.

There are only a handful of exceptions to this rule –

If the lawyer was hired to enable or aid anyone to plan or commit a crime or fraud.

If the lawyer reasonably believes that disclosure of any confidential communication is necessary to prevent a criminal act that will likely result in the death of, or substantial bodily harm to, an individual.

If the communication is relevant to an issue of breach by the lawyer or client, of a duty arising out of the lawyer-client relationship. (For instance, certain communications might not be privileged if you sue your lawyer for malpractice and he is then allowed to testify in his own defense.)

If two clients originally share an attorney on a matter of common interest but later end up suing each other over the matter or related issues.

And a few other minor exceptions usually relating to a dead client whose estate is being disputed (though usually the confidential privilege will remain with a lawyer even after his client dies)

The Spousal Privilege

Generally speaking, a married person may not be forced to testify against his or her spouse in any proceeding.

This privilege will still hold even after the couple gets divorced, though it will only apply to conversations that were made while they were married.

The primary exceptions to this privilege include –

Instances where one spouse is suing the other (including divorce or child custody hearings).

A proceeding where one spouse wishes to have the other committed or take control over property because of the spouse’s alleged mental or physical condition.

A criminal proceeding in which one spouse is charged with a crime against another spouse or family member (even if committed before the marriage).

Charges of bigamy.

A civil case brought by one spouse for the immediate benefit of the other spouse.

Any communications made to enable or aid anyone to plan or commit a crime or a fraud.

The Physician-Patient Privilege

The confidential privilege between a doctor and the patient does not apply in criminal matters. However, in a civil proceeding, a doctor must invoke the privilege unless special circumstances apply.

A few of those circumstances when the privilege will not apply include –

If the services of the doctor were sought to help aid anyone to commit an unlawful act or to help escape detection or apprehension thereafter.

If you sue your doctor for malpractice.

Proceedings to place the patient or his property under the control of another because of his alleged mental or physical condition.

Proceedings to recover damages on account of the conduct of the patient if good cause for disclosure of the communication is shown.

Instances when the patient is dead and aspects of the patient’s will or estate is being disputed.

Also keep in mind that the communication must be made in the course of the physician’s professional duties for it to be privileged. Confessing that you robbed a bank to someone with a medical degree at a cocktail party won’t help you.

The Psychologist-Patient Privilege

This one operates similarly to the Physician-Patient Privilege. People won’t feel free to discuss their intimate secrets with psychologists if they know that such people could be forced to reveal them in court. As a result, psychologists must invoke the privilege unless a patient says otherwise.

A few notable exceptions to this rule include –

When the psychotherapist has reasonable cause to believe that the patient is
a danger to himself or to others (including their property) such that the disclosure of the communication is necessary to prevent the threatened danger.

When the psychologist is appointed by the court or governmental body to evaluate someone for legal purposes.

If the services of the psychologist were sought to help aid anyone to commit an unlawful act or to help escape detection or apprehension thereafter.

If you sue your psychologist for malpractice.

Instances when the patient is dead and aspects of the patient’s will or estate is being disputed.

If the patient is under 16-years-old, the psychotherapist has reasonable cause to believe that the patient has been the victim of a crime, and that disclosure of the communication is in the best interest of the child.

The Priest-Penitent Privilege

Confessions to priests or clergy are privileged and confidential provided that the person making the confession was not aware of the presence of any third person during the conversation and that the clergy member is authorized or accustomed to hear those communications under the tenets of his or her church.

Such a clergy member has the right to keep such conversations secret, and the confessor has the right to prevent the clergy member from divulging the information.

Sexual Assault or Domestic Violence Victim-Counselor Privilege
Legitimately trained sexual assault and domestic violence counselors have a general privilege regarding conversations between themselves and their patient-victims.

However, courts can sometimes override the privilege in a criminal proceeding if it is felt that the value of the information outweighs the effect on the victim and his or her treatment if such information is disclosed.

Trade Secrets

The owner of a trade secret has a privilege to refuse to disclose the secret, and to prevent another from disclosing it, if the allowance of the privilege will not tend to conceal fraud or otherwise work injustice.

In some instances, the court may require someone to disclose a trade secret if it is necessary to a fair trial, but will still allow that person to submit such information under seal so that it remains unavailable to the general public.

Journalists

Journalists for newspapers, magazines, and electronic media cannot be held in contempt by a state governmental agency for refusing to divulge their sources in gathering information related to their work.

[Note: This article is to be used as an educational guide only and should not be interpreted as a legal consultation. Readers of this article are advised to seek an attorney if a legal consultation is needed. Laws may vary by state and are subject to change, thus the accuracy of this information can not be guaranteed. Readers act on this information solely at their own risk. Neither the author, handelonthelaw.com, or any of its affiliates shall have any liability stemming from this article.]