Privileged

by Nicholas Walsh, PA

A trial is, in concept and often in fact, a mechanism for discovering the truth. Thus the bias of our evidence rules is toward full disclosure, no secrets. In some circumstances, however, we as a society have decided that a higher or different consideration trumps the quest for truth. For example, although we might better learn if a person in fact committed a murder if we could compel his confessing priest to testify, we think the value to society of keeping such confessions confidential trumps the truth-finding function of trial.

I wrote about one of these privileges a couple of months ago—the Fifth Amendment right to refuse to testify if to do so might be incriminating. That right exists because the authors of the Bill of Rights decided that it was ugly and immoral to compel a criminal defendant to testify against his or her interest.

The attorney-client privilege allows a client to refuse to divulge communications between the client and the lawyer. The attorney-client privilege exists because it would be pretty much impossible to consult a lawyer about a criminal or serious civil matter if the other side could reach the contents of the communications.

The attorney-client privilege arises easily: If I run into a lawyer’s office and shout, “I just killed someone – help me!” the privilege is likely to be present. (If I shouted loudly enough for people in the street to hear, I may have voided (waived) the privilege, about which more below.) The attorney-client privilege doesn’t exist if the client and the lawyer are suing each other, nor if the client consulted the lawyer to get advice about a crime or fraud the client planned.

Everyone in business should know that there is no such thing as an accountant-client privilege. (The accountants have lobbied for one, to no avail.) Keep that in mind if you’re facing serious tax trouble. Some accountants become lawyers just so the privilege applies to their counseling.

The spousal privilege is alive and well, as is the priest-penitent privilege. Both these privileges exist because we place such a high value on the ability to speak freely to a spouse or a priest that we are willing to protect those communications even when to do so compromises the truth-finding function of the courts.

A person can invoke the court’s power to prevent a priest from divulging a confession. In Maine, a husband or wife can similarly prevent the other spouse from testifying as to a confidential communication, but in many states if one spouse wants to testify against the other, he or she can. The privilege doesn’t apply in divorces where the testimony would be relevant to a matter at issue in the divorce. And no spouse can count on the privilege protecting a communication in which the spouse is charged with a crime of family violence.

Communications between a doctor and a patient are also privileged, again because in those circumstances we want to encourage full disclosure. In Maine, the privilege actually exists between a patient and a licensed doctor, nurse practitioner, Physician Assistant, mental health professional or a licensed counseling professional. Again, the patient can refuse to testify to these communications and can prevent the doctor from testifying.

If the subject of the controversy involves the health care received, the privilege is in effect waived. So if you sue a doctor or counselor claiming the defendant injured you or impaired your mental or emotional health, don’t expect to keep your medical file or counseling records a secret: it all comes out. Same if you sue someone for, say, running a red light and hitting you. If you claim to be physically injured, or emotionally traumatized, you will not be able to keep the other side from seeing essentially your entire medical and counseling record.

The courts hold that if you, during a session, tell the counselor you’re going to kill someone (or yourself), the counselor may have not merely the right but very likely the duty to appropriately divulge that communication, to law enforcement.

For a communication to be privileged it has to be confidential. That means in private, no witnesses present. It’s fairly common for a new client to appear in my office accompanied by a parent or adult child or other companion. Generally I dislike having third parties present at client meetings, in part because the presence of the third party acts as a waiver of the attorney-client privilege. If the third party insists on remaining, I tell the client that it is likely the session cannot be subject to the privilege.

Privileges are easily lost. If a client blabs to a friend about a matter disclosed in confidence to me, the privilege may be gone. The same applies to the other privileges: if the communication was made in private, but then was disclosed to others, the privilege is gone.

If there is one take-away from this discussion, perhaps it is that accountant-client communications are not privileged. Your accountant can be subpoenaed and compelled to testify as to, let us say, the time you told him you have two sets of books. If you ever face tax trouble of a serious nature, keep that fact in mind.

Nicholas Walsh is an admiralty attorney with an office in Portland, Maine. He may be reached at 207-772-2191, or nwalsh@gwi.net.