Understanding Privileges in Legal Cases: A Overview of Federal and Texas Rules

Explore the concept of privileges in legal cases, focusing on the right to block certain evidence despite relevance and importance. Delve into federal standards on privileges and the specific Texas Rule 503 on attorney-client privilege, including exceptions like the crime/fraud exception. Gain insights into the purpose and societal goals of privileges in legal systems.

• Legal Privileges
• Federal Rules
• Texas Rule 503
• Attorney-Client Privilege
• Crime/Fraud Exception

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1. CHAP. 12 : PRIVILEGES Prof. JANICKE FALL 2020

2. DEFINITION A PRIVILEGE IS A RIGHT OF SOME PERSON OR ENTITY TO BLOCK THE ADMISSION OF CERTAIN KINDS OF EVIDENCE IN A CASE EVEN THOUGH THE EV. IS RELEVANT EVEN THOUGH THE EV. IS CRUCIAL 2020 Chap. 12 -- Privileges 2

3. PURPOSE TO FURTHER SOME SOCIETAL GOAL 2020 Chap. 12 -- Privileges 3

4. FEDERAL STANDARDS ON PRIVILEGES NO PRIVILEGE DEFINITION RULES WERE ACTUALLY ENACTED THE U.S. JUDICIAL CONFERENCE PROPOSED THE 500-SERIES OF RULES, BUT THEY DID NOT MAKE IT THROUGH CONGRESS 2020 Chap. 12 -- Privileges 4

5. THESE PROPOSALS ARE NOW KNOWN AS STANDARDS [ARE POSTED IN COURSE MATERIALS] 2020 Chap. 12 -- Privileges 5

6. TURN TO TEXAS RULES ON PRIVILEGES 2020 Chap. 12 -- Privileges 6

7. TEXAS RULE ON ATTORNEY-CLIENT PRIVILEGE ASSIGNED: TX RULE 503 2020 Chap. 12 -- Privileges 7

8. ATTORNEY-CLIENT PRIVILEGE A PERSON WHO CONSULTS A LAWYER FOR THE PURPOSE OF OBTAINING LEGAL ADVICE HAS A PRIVILEGE TO BLOCK DISCLOSURE OF WHAT THE PERSON SAID OR THE LAWYER SAID, IF THE CIRCUMSTANCES WERE APPARENTLY CONFIDENTIAL 2020 Chap. 12 -- Privileges 8

9. EXCEPTIONS VERY NARROW NEEDS OF THE OTHER SIDE DO NOT CREATE ANY EXCEPTION TO THE PRIVILEGE THE ONLY SIGNIFICANT EXCEPTION IS: A LATER ACTION BETWEEN THE LAWYER AND THE CLIENT MALPRACTICE ACTION TO COLLECT A FEE 2020 Chap. 12 -- Privileges 9

10. SO-CALLED CRIME/FRAUD EXCEPTION WHERE CLIENT S MAIN PURPOSE IS TO INVOLVE THE LAWYER IN ASSISTING IN A CRIME OR FRAUD, THE DEFINITION ISN T MET (PURPOSE ISN T TO GET LEGAL ADVICE) 2020 Chap. 12 -- Privileges 10

11. WHEN LAWYER THEN DECLINES THE REPRESENTATION THE PRIVILEGE STANDS, PER THE DEFINITION NO LAWYER-CLIENT RELATIONSHIP IS NEEDED 2020 Chap. 12 -- Privileges 11

12. UNKNOWN EAVESDROPPER NO EFFECT APPARENT CONFIDENTIALITY IS ENOUGH SOME OLDER CASES CONTRA 2020 Chap. 12 -- Privileges 12

13. BOTH SIDES OF CONVERSATION ARE NOW INCLUDED TRADITIONALLY, ONLY WHAT THE CLIENT SAID WAS PRIVILEGED HOWEVER, WHAT THE LAWYER SAID USUALLY INHERENTLY REVEALS WHAT THE CLIENT SAID, AND IS NOW CALLED DERIVATIVELY PRIVILEGED INDIRECT REVELATION OF THE CLIENT S STATEMENT 2020 Chap. 12 -- Privileges 13

14. THE CLIENT OWNS THE PRIVILEGE, MEANING: 1. ONLY SHE CAN DECIDE WHETHER OR NOT TO BLOCK DISCLOSURE IN COURT, i.e., TO WAIVE THE PRIVILEGE 2. ONLY SHE CAN DECIDE WHICH OF LAWYER S HELPERS, OR HER OWN HELPERS, SHOULD LEARN OF THE COMMUNICATION WHILE PRESERVING IT 2020 Chap. 12 -- Privileges 14

15. THE PROBLEM OF WAIVER ONLY THE CLIENT OR HIS REPRESENTATIVE (WHO IS OFTEN THE LAWYER) CAN WAIVE CLIENT CAN WAIVE BY TAKING ACTION: BY DISCLOSURE; or BY AUTHORIZING DISCLOSURE OF THE COMMUNICATION; or BY DESIGNATING AN AGENT (e.g., the lawyer) TO DECIDE ON DISCLOSURE OF THE COMMUNICATION CLIENT S DESIGNATION OF POWER TO WAIVE CAN BE IMPLICIT: LAWYER FOR A LITIGANT IS USUALLY PRESUMED TO HAVE AUTHORITY TO WAIVE, UNLESS FACTS SHOW OTHERWISE 2020 Chap. 12 -- Privileges 15

16. NO RIGHT TO PICK-AND-CHOOSE WAIVERS COMMON LAW: KNOWINGLY WAIVING AS TO ONE COMMUNICATION OPERATES AS A WAIVER ON ALL OTHER PRIVILEGED COMMUNICATIONS ON SAME TOPIC, UP TO THE DATE OF THE WAIVER NOW: WAIVER RE. OTHERS THAT IN FAIRNESS SHOULD BE CONSIDERED 2020 Chap. 12 -- Privileges 16

17. CLIENT DECISION ON WAIVER LAWYER MUST HONOR THE CLIENT S WAIVER INSTRUCTION EVEN IF EMBARRASSING TO THE LAWYER THIS IS A RESULT OF CLIENT OWNING THE PRIVILEGE 2020 Chap. 12 -- Privileges 17

18. WAIVER BY CONDUCT: HALF-OPEN DOOR RULE REVEALING PARTS IN TESTIMONY REVEALING ONE LAWYER COMMUNICATION WHEN THERE ARE OTHERS ON THE SAME TOPIC WAIVER BY PRODUCING PRIVILEGED DOCUMENTS IN LITIGATION R. 502 CODIFIES THE HALF-OPEN RULE OTHER COMMUNICATIONS THAT OUGHT IN FAIRNESS TO BE CONSIDERED WITH WAIVED ITEM WILL HAVE TO BE PRODUCED 2020 Chap. 12 -- Privileges 18

19. DISCLOSURE IN LITIGATION IS NOW LARGELY PROTECTED BY RULE ASSIGNED: FED. R. 502(b); TEX. R. 511(b)(2) 2020 Chap. 12 -- Privileges 19

20. WAIVER BY AFFIRMATIVE USE OF COUNSEL OPINIONS USING LAWYER S ADVICE TO GET A BENEFIT IN COURT IS AN INVOLUNTARY WAIVER E.G., TESTIFYING TO AN OPINION OF COUNSEL, TO SHOW GOOD FAITH OR LACK OF FRAUD LAWYER CAN THEN BE DEPOSED, MUST ANSWER RE. THE WHOLE TOPIC OTHER LAWYER OPINIONS ON THE TOPIC ARE ALSO WAIVED 2020 Chap. 12 -- Privileges 20

21. PROBLEMS/CASES 12A 12B 12C Meredith 12D Suburban Upjohn Osterhoudt (cont d) 2020 Chap. 12 -- Privileges 21

22. PROBLEMS/CASES 12E 12F 12G 2020 Chap. 12 -- Privileges 22

23. MORE TEXAS RULES OF EVIDENCE

24. TWO MARITAL PRIVILEGES 1. THE MARITAL COMMUNICATION PRIVILEGE; ASSIGNED: TEXAS RULE 504(a) WORDS SPOKEN DURING MARRIAGE UNDER APPARENT PRIVACY CONDITIONS THIS PRIVILEGE BELONGS TO THE SPEAKING SPOUSE DOES NOT EXTEND TO CONTEMPORANEOUS ACTIONS OF THE SPEAKING SPOUSE PRIVILEGE REMAINS INTACT FOR PRE- DIVORCE COMMUNICATIONS 2020 Chap. 12 -- Privileges 24

25. HOW IT WORKS IN COURT, BE A WITNESS AND STILL REFUSE TO ANSWER QUESTIONS ABOUT WHAT HE/SHE SAID THE SPOUSE WHO SPOKE CAN BLOCK THE OTHER SPOUSE, IF A WITNESS, FROM REVEALING WHAT THE SPEAKING SPOUSE SAID 2020 Chap. 12 -- Privileges 25

26. 2. THE PRIVILEGE TO REFUSE TO BE SUMMONED BY GOV T ASSIGNED: TEX. RULE 504(b). THIS PRIV. BELONGS TO THE WITNESS-SPOUSE, NOT THE ACCUSED SPOUSE; IT IS HER CHOICE TO WAIVE TEXAS AND FED. RULE (TRAMMEL CASE) ARE THE SAME THIS PARTICULAR PRIVILEGE ENDS WITH DIVORCE DOES NOT APPLY WHERE WITNESS-SPOUSE IS THE ALLEGED VICTIM 2020 Chap. 12 -- Privileges 26

27. THE NON-ACCUSED SPOUSE (WIFE) MUST TESTIFY IF SUMMONED BY THE ACCUSED SPOUSE (HUSBAND) HER PRIVILEGE IS TO REFUSE TO BE A WITNESS FOR THE PROSECUTION 2020 Chap. 12 -- Privileges 27

28. MANY OTHER STATES, AND COMMON LAW OPPOSITE OF THE TEXAS AND FEDERAL RULE THERE, THE PRIVILEGE TO PREVENT THE WIFE FROM TESTIFYING BELONGS TO THE HUSBAND 2020 Chap. 12 -- Privileges 28

29. Trammel 12H Montgomery 2020 Chap. 12 -- Privileges 29

30. EXCEPTIONS: NO SPOUSAL PRIVILEGES IN - - ACTIONS BETWEEN THE SPOUSES CRIMINAL CASE WHERE LISTENING SPOUSE WAS THE ALLEGED VICTIM A FEW OTHER SITUATIONS 2020 Chap. 12 -- Privileges 30

31. REVIEW EXAMPLE: HUSBAND: LOOK HERE, HONEY, AT ALL THIS MONEY I ROBBED FROM THE BANK! IF WIFE BECOMES A PROS. WITNESS (HER CHOICE): 1. SHE CAN BE COMPELLED TO TESTIFY TO SEEING MONEY DUMPED BY HUSBAND ON THE BED, but 2. HUSBAND CAN PREVENT HER FROM TESTIFYING TO WHAT HE SAID 2020 Chap. 12 -- Privileges 31

32. PRIVILEGE AGAINST COMPELLED SELF-INCRIMINATION D CAN T BE REQUIRED TO TESTIFY D CAN T BE OBLIGED TO WRITE OUT A CONFESSION BUT: IF D WROTE A DOCUMENT ON HIS OWN INITIATIVE, NO SELF-INCRIM. PRIVILEGE ABSENT SOME OTHER PRIVILEGE, IT CAN BE SUBPOENAED AND USED BY THE PROSECUTION 2020 Chap. 12 -- Privileges 32

33. COMPELLED CONDUCT IS NOT PROTECTED GIVING BODILY FLUIDS SAMPLES GIVING HANDWRITING SAMPLE GIVING DNA SAMPLE 2020 Chap. 12 -- Privileges 33

34. THE PROBLEM OF BUSINESS FILES THEY ARE CREATED VOLUNTARILY, SO ARE NOT PROTECTED BY THIS PRIVILEGE GIVING THEM TO A LAWYER WON T HELP! [HAPPENS OFTEN] 2020 Chap. 12 -- Privileges 34

35. TEXAS CIVIL CASES: JUDICIAL COMMENT ON INVOKING THE 5TH ASSIGNED: Tex. R. 513(c) 2020 Chap. 12 -- Privileges 35

36. HOW THE TEXAS RULE WORKS CIVIL PLAINTIFF INVOKING 5TH : IS APT TO BE NON-SUITED IN TEXAS CIVIL DEFENDANT INVOKING: WILL HAVE HEAVY NEGATIVE JUDICIAL COMMENT FOR INVOKING 5TH AMENDMENT IN TEXAS ALL OTHER PRIVILEGES REMAIN UNMENTIONABLE 2020 Chap. 12 -- Privileges 36

37. CLERGYMAN-PENITENT ASSIGNED: TEXAS RULE 505 WORKS SIMILARLY TO LAWYER- CLIENT PRIVILEGE APPLIES IN BOTH CIVIL AND CRIMINAL CASES 2020 Chap. 12 -- Privileges 37

38. TRADE SECRET ASSIGNED: TEXAS RULE 507 ONLY A QUASI-PRIVILEGE COURT CAN OVERRIDE IT IF MAINTAINING THE PRIVILEGE WOULD WORK INJUSTICE PRETTY EASY TO BREAK TODAY, WITH PROTECTIVE ORDER 2020 Chap. 12 -- Privileges 38

39. PHYSICIAN-PATIENT PRIVILEGE ASSIGNED: TEXAS RULE 509 NO SUCH PRIVILEGE IN CRIMINAL CASES IN TEXAS and > > > 2020 Chap. 12 -- Privileges 39

40. PHYSICIAN-PATIENT PRIVILEGE ALMOST NONEXISTENT EVEN IN CIVIL CASES, DUE TO EXCEPTION (e)(4) OF THE RULE: NO PRIVILEGE WHERE THE PATIENT S CONDITION IS PART OF A PARTY S CLAIM OR DEFENSE WHEN WOULD IT NOT BE?? 2020 Chap. 12 -- Privileges 40

41. MENTAL HEALTH PROFESSIONALS ASSIGNED: TEXAS RULE 510 INCLUDES DRUG-ABUSE WORKERS AS WELL AS DOCTORS BUT: SAME LARGE EXCEPTIONS NO PRIVILEGE IN CRIMINAL CASES ALMOST NONE IN CIVIL CASES (IF PART OF A PARTY S CLAIM OR DEFENSE) 2020 Chap. 12 -- Privileges 41

42. PARTYS WORK PRODUCT [FED. R. CIV. P. 26 (b)(3)] IS NOT A PRIVILEGE, BUT SOMEWHAT LIKE ONE PARTY S MATERIALS PREPARED IN ANTICIPATION OF LITIGATION, OR FOR TRIAL, ARE COVERED CAN BE (AND OFTEN IS) OVERRIDDEN BY A SHOWING OF NEED 2020 Chap. 12 -- Privileges 42

43. MENTAL IMPRESSIONS OF COUNSEL ARE USUALLY MASKED OUT [SEE NEXT SLIDE] >>> 2020 Chap. 12 -- Privileges 43

44. TEX. R. CIV. P. 192 IS SIMILAR TO FED. PRACTICE: COUNSEL IMPRESSIONS ARE CALLED CORE WORK PRODUCT, GENERALLY BLOCKED THE REST IS CALLED OTHER WORK PRODUCT AND CAN BE HAD BY SHOWING SUBSTANTIAL NEED LWYR MEMO TO FILE IS WORK PRODUCT, NOT PRIVILEGED; BUT CAN CONTAIN CORE INFO 2020 Chap. 12 -- Privileges 44

45. UNSETTLED: WHETHER WORK PRODUCT HAS ANY PROTECTION IN CRIMINAL CASES IF NO W.P. PROTECTION, STILL HAVE TO PROTECT A/C PRIVILEGES 2020 Chap. 12 -- Privileges 45

46. JOURNALISTS PRIVILEGE FEDERAL CASE LAW CREATES A QUASI-PRIVILEGE: MUST EXHAUST OTHER POSSIBLE AVENUES OF EVIDENCE FIRST TEXAS HAS A STATUTE CREATING THIS QUASI-PRIVILEGE >>> 2020 Chap. 12 -- Privileges 46

47. JOURNALISTS PRIVILEGE IN CIVIL CASES ASSIGNED:Tex. Civ. Prac. & Rems. Code 22.021 WHO IS A JOURNALIST ? 2020 Chap. 12 -- Privileges 47

48. THIS PRIVILEGE HAS TWO PRONGS: 1. TO REFUSE TO DISCLOSE ANY INFORMATION COLLECTED IN THAT CAPACITY, EVEN IF NOT CONFIDENTIAL 2. TO REFUSE TO DISCLOSE SOURCES ** NOTE: THE JOURNALIST S PUBLISHING OF THE COLLECTED INFORMATION IS NOT A WAIVER CAN T GET HIM TO CONFIRM 2020 Chap. 12 -- Privileges 48

49. LIMITS IN THE STATUTE 2020 Chap. 12 -- Privileges 49

50. JOURNALISTS PRIVILEGE IN TEXAS CRIMINAL CASES TEX. CODE. CRIM. PROC. ART. 38.11 SIMILAR TO THE CIVIL PRIVILEGE, EXCEPT: NO SOURCE PRIVILEGE IF: 1. A FELONY IS COMMITTED IN JOURNALIST S PRESENCE, AND NO OTHER WAY TO PROVE IT; or 2. SOURCE ADMITTED COMMISSION OF A FELONY, AND NO OTHER WAY TO PROVE IT; or 2020 Chap. 12 -- Privileges 50

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