There are many types of privileges that exist and it is probable that many have been asserted that don’t exist. The privileges arise out of both the Common Law and Statutory Law governing federal and state courts. The constitution is the source of only one privilege, the privilege against self-incrimination guaranteed by the Fifth Amendment. The theory behind evidentiary privilege is that certain relationship are sacred and should not be interfered with by the Law Lawrence N. Gray, esq. discusses many of the evidentiary privileges (2012). Amongst them are attorney-client, spousal, physician-patient, clergy-penitent, psychologist-patient, social worker-client, rape crisis counselor-client, against self-incrimination, the newspaperman’s privilege, and some purported “privileges.” As is quickly apparent, there are many instances where a privilege can be claimed and compelling testimony from them is not allowed. These privileges exist because the law views favorably that in certain relationships one should be able to be 100% honest without fear of judicial intervention and consequences. Many things that are morally reprehensible or illegal have bearing on the physical health of the individual, and this should not come back to haunt them. Similarly, if the idea of innocence before proven guilty means anything, a client should be able to discuss his case perfectly candidly without fear that his honesty would be used against him.
The attorney client privilege ultimately belongs to the client and only the client has the capability of waiving it. However, it is important to realize that the privilege comes from the attorney’s role and the privilege as much protects the legal consultants from violating their ethical duties to the client. Rule 502 of the federal rules of evidence spell out explicitly the federal law of privileges as well as several waivers and limitations to waivers. The case law most relevant to the issue is US v. United Shoe Machinery Corp., which set out five requirements for privilege to occur: the client must assert the privilege, the person that the information was communicated to was a lawyer or support staff, the communication must have been exclusively between the lawyer and the client, the discussion occurred in the context of receiving a legal opinion, and the waiver belongs to the client and not the attorney.
Privilege may be found not to apply if individuals not associated with the legal matter heard the communication between the attorney and the client. For instance, a business advisor present would render those communications non-privileged. Furthermore, an attorney has an obligation to disclose information that will prevent a crime or a fraud in the future and taking part in criminal activity would also void the privilege. Finally, upon death of the client there is no more confidentiality and an attorney can be compelled to give testimony about his demised client for the purposes of probate administration.
Evidentiary privileges have an extremely long history in the western legal heritage. Indeed, it appears that Cicero invoked an Attorney-Client privilege in ancient Rome on similar rationales to theories of privilege that are held today. Evidentiary Privileges insure that in our most vital relationships we are able to be fully candid without fear of state retribution. However, as highly as they are regarded, it is important to remember that they are ultimately fragile and can be broken beyond repair should a non-necessary third party be present, or if the non-client party oversteps the bounds of reasonable conduct.
Bibliography:
“Attorney-Client Privilege” Legal-Dictionary TheFreeDictionary.com, accessed August 28, 2013, http://legal-dictionary.thefreedictionary.com/attorney-client+privilege
“Federal Rules of Evidence (2013)” http://federalevidence.com/. accessed August 28, 2013, http://federalevidence.com/rules-of-evidence#Rule501
Gray, Lawrence. “Evidentiary Privileges Fifth Edition (Grand Jury, Criminal and Civil Trials).” New York State Bar Association. 2012. http://www.nysba.org/AM/Template.cfm?Section=Home&ContentID=117613&Template=/CM/ContentDisplay.cfm.
