privileged communication


Also found in: Dictionary, Thesaurus, Medical, Financial, Encyclopedia, Wikipedia.

Privileged Communication

An exchange of information between two individuals in a confidential relationship.

A privileged communication is a private statement that must be kept in confidence by the recipient for the benefit of the communicator. Even if it is relevant to a case, a privileged communication cannot be used as evidence in court. Privileged communications are controversial because they exclude relevant facts from the truth-seeking process.

Generally, the laws that guide civil and criminal trials are designed to allow the admission of relevant evidence. Parties generally have access to all information that will help yield a just result in the case. Privileged communications are an exception to this rule.

Privileged communications exist because society values the privacy or purpose of certain relationships. The established privileged communications are those between wife and husband, clergy and communicant, psychotherapist and patient, physician and patient, and attorney and client.

These relationships are protected for various reasons. The wife-husband and clergy-communicant privileges protect the general sanctity of marriage and religion. The psychotherapist or physician and patient privilege promotes full disclosure in the interests of the patient's health. If patients were unable to keep secret communications with psychotherapists or physicians relating to treatment or diagnosis, they might give doctors incomplete information. If doctors received incomplete information, they might be unable to administer health care to the patient, which is the very purpose of the doctor-patient relationship.

The Attorney-Client Privilege exists for roughly the same reason as the physician-patient privilege. In order to secure effective representation, a client must feel free to discuss all aspects of a case without the fear that her attorney will be called at trial to repeat her statements. Likewise, to retain the client's trust and do his job properly, the attorney must be allowed to withhold from the court and opposing party private communications with the client.

A communication is not confidential, and therefore not privileged, if it is overheard by a third party who is not an agent of the listener. Agents include secretaries and other employees of the listener. For example, a communication between a psychotherapist and patient would be privileged even if the psychotherapist's secretary happened to overhear it. In such a case, the secretary could not be forced to testify about the communication. However, a communication between a psychotherapist and a patient on a public elevator occupied by third parties would not be privileged and could be used in court.

Privileged communications are not always absolute. For instance, a criminal defendant may be able to access communications between an accuser and the accuser's doctor if the defendant's interest in the disclosure, in the opinion of the court, outweighs the interest in confidentiality. The court will consider such a request only if the defendant can establish a reasonable probability that important information exists in the communication that will be relevant to the case.

Various jurisdictions may apply the concept of privilege in slightly different ways. For example, some jurisdictions distinguish between the two parties to a communication, calling one party the keeper or holder of the privilege. Other states regard the privilege as being held, and capable of being asserted, by both parties. Some states, for example, give the Marital Communications Privilege to both parties, allowing either party to avoid testifying and to prevent the other from testifying as to communications made within the privacy of the marital relationship. Other states give the privilege to the testifying spouse. This gives the testifying spouse the power to waive the privilege and testify against the other spouse.

States occasionally change their laws to give the privilege to both parties or to take it from one of the parties. For example, a state may give the privilege to both clergy and communicant. Under such a law, either party to the communication could block its disclosure. In the alternative, a state could give the privilege only to the communicant, in which case the communicant could waive the privilege and obtain testimony from the cleric. These variations reflect the struggle by the courts to balance the need for information to reach a just result against the public policy of encouraging free communication within certain relationships by making these communications privileged.

For federal cases, the law of privileged communications is governed by the state law in which the federal court sits. Within particular jurisdictions, the precise rules regarding privileged communications may be periodically redefined or adjusted as new circumstances are presented. In some states a person's relationships with sexual assault counselors, social workers, and juvenile diversion officers have been given a qualified privilege of confidentiality. In these states the court may hold a private hearing to determine whether the information is necessary to the requesting party's case or defense before ordering disclosure of the information. Many legal advocates have supported the creation of a privilege between parents and offspring, but very few courts and legislatures have recognized such a privilege.

Further readings

Chaikin, Lisa A. 1995. "Privileged Communications Act Violates an Individual's Constitutional Right to Litigate and the Separation of Powers." Suffolk University Law Review 29.

"Evidence." 1994. SMH Bar Review.

Frieder, Pat. 2000. Privileged Communications. New York: Bantam Books.

"1994 Legislative Update." 1994. Colorado Law 23 (August).

"Parent-Child Loyalty and Testimonial Privilege." 1987. Harvard Law Review 100 (February).

"Revised Proposed Alabama Rules of Evidence." 1994. Alabama Law Review 46 (fall).

Slovenko, Ralph. 1998. Psychotherapy and Confidentiality: Testimonial Privileged Communication, Breach of Confidentiality, and Reporting Duties. Springfield, Ill.: Charles C. Thomas.

Turfe, Edward M. 1995. "A Trial Judge Must Conduct an In Camera Review of a Complainant's Privileged Communications When the Defendant Can Establish a Reasonable Probability That Material Information Exists in Such Communications." University of Detroit Mercy Law Review 72.

Wallace, Lianne K. 1994. "Privileged Communications in Sexual Assault Cases: Rhode Island's Treatment of Clergyman-Parishioner and Psychotherapist-Patient Communications." Suffolk University Law Review 28.

Cross-references

Attorney-Client Privilege; Husband and Wife; Marital Communications Privilege; Physician-Patient Privilege.

privileged communication

n. statements and conversations made under circumstances of assured confidentiality which must not be disclosed in court. These include communications between husband and wife, attorney and client, physician or therapist and patient, and minister or priest with anyone seeing them in their religious status. In some states the privilege is extended to reporters and informants. Thus, such people cannot be forced to testify or reveal the conversations to law enforcement or courts, even under threat of contempt of court, and if one should break the confidentiality he/she can be sued by the person who had confidence in him/her. The reason for the privilege is to allow people to speak with candor to spouse or professional counsellor, even though it may hinder a criminal prosecution. The extreme case is when a priest hears an admission of murder or other serious crime in the confessional and can do nothing about it. The privilege may be lost if the one who made the admission waives the privilege, or, in the case of an attorney, if the client sues the attorney claiming negligence in conduct of the case. (See: attorney-client privilege, physician-patient privilege, confidential communication)

privileged communication

noun attorney's work product, closed conversation, confidential communication, confidential discussion, non-disclosable communication, private communication, private interchange, privileged dissussion, privileged writing
Associated concepts: attorney-client relationship, doctorratient privilege, husband-wife privilege, physician-patient privilege, priest-penitent privilege, waiver
See also: confidence, secret
References in periodicals archive ?
202) Some attorneys have voiced concerns over disintegration of client trust and the deterioration of client relationships as a result of the NSA's receipt of privileged communications.
126) The privileged communication between patient and psychiatrist may only be disclosed when an overriding emergency--one that indicates serious bodily harm or death to the patient or others--presents itself.
It reviews cases in which waiver of the psychotherapist-patient privilege has been implied by such circumstances as disclosure of privileged communications to third parties, by prior testimony, and by the presence of third parties.
Privileged communication is a statute-provided concept, which is only an issue when there is a legal concern (e.
If privileged communications become part of an affidavit, what effect, if any, will this have on the evidence collected as a result of this court order?
records are privileged communications and thus are not subject to
The New Jersey Administrative Code title 10A, section 16-4-4, entitled "Inmate/Therapist Confidentiality," states: "Confidential relations between and among mental health practitioners and individuals or groups in the course of practice are privileged communications and not to be disclosed to any person.
Social workers and privileged communication in the federal legal system.
Bollas and Sundelson also use the judge's remarks to demonstrate that courts can be persuaded of the importance of maintaining privileged communications in a treatment setting.
However, if a privileged communication existed between the accountant and the client, then the client could prevent a court or government agency, such as the IRS, from gaining access to the information through a summons or subpoena.
Janette said in the complaint that she 'felt so much maligned and dishonored' by Ubial's testimony, which is considered as privileged communication protected from libel.
On the other hand, the holding in Burt [the conflicting decision from the Second DCA] that a plaintiff's referral by her attorney to her doctor is a privileged communication, has been used to hide the existence of the lucrative financial relationships between treating physicians and lawyers.