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Article 5 Privileges Outline

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This is an extract of our Article 5 Privileges document, which we sell as part of our Evidence Outlines collection written by the top tier of University Of Washington School Of Law students.

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ARTICLE V: PRIVILEGES:FRE 501: General Rule (for federal criminal and federal question cases): o Except as otherwise required by Constitution, or provided by act of Congress, or in rules prescribed by Supreme Court pursuant to statutory authority:Privilege of witness, person, government, state, or political subdivision thereof shall be governed by:Principles of the common law, as they may be interpreted in the light of reason and experience o However, in diversity cases, privilege determined in accordance with state lawBackground Info on Privilege, esp. Attorney-Client Privilege: o Swidler & Berlin: The attorney-client privilege survives the death of the privilege holderHere, the government cannot subpoena the notes an attorney made at his meeting with Vince Foster, even though Foster subsequently committed suicide

o Confidential information must be treated by the privilege holder as suchE.g. If cabbie/murderer tells friend he killed his wife, he cannot claim that information is protected by attorney-client privilegeE.g. Suburban Sew 'N Sweep v. Swiss Bernina: If company does not take precautions to destroy privileged documents, it cannot claim that information is protected by attorney-client privilege when plaintiff-scavengers fish the documents out of the dumpsterBUT Privilege holder can tell multiple people with whom talks are privileged o E.g. Tells lawyer, then tells priest, then tells psychotherapist

o Privilege holder must have reasonable expectation of confidentiality under the circumstances


E.g. Conversation conducted in public won't be held to be confidentialPrivilege circle extends to necessary persons and persons whose presence is reasonable o Necessary: E.g. Intermediaries like translators, supervised parties like secretaries, paralegals, interns o Reasonable: E.g. Infant

o Non-communicative observations/actions are not privilegedE.g. Lawyer must testify that client was covered in blood when he arrived at officeProposed but Rejected FRE on Privilege: o Required reports privileged by statute o Lawyer-ClientThe Rule: Client has privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for purpose of facilitating rendition of professional legal services to client(1) between himself or his representative and his lawyer or his lawyer's representative OR(2) between his lawyer and lawyer's representative OR(3) by him or his lawyer to a lawyer representing another in a matter of common interest OR(4) between representatives of the client or between the client and a representative of the client OR?

(5) between lawyers representing the client

The privilege holder: The privilege may be claimed by:The clientHis guardian or conservatorThe personal representative of a deceased client


Successor/trustee/similar representative of a corporation/association/other organization, whether or not in existenceLawyer at the time of the communication---but may only claim on behalf of clientExceptions/No Lawyer Client Privilege:Carter listed: Prevention of an imminent future crimeFurtherance of a crime or fraud: If services of lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what client knew or reasonably should have known to be a crime or fraud o Attorney need not know of crime/fraud but is used to perpetuate it o In re Francis Carter: Crime-fraud exception applies, statements are not protected by attorney-client privilege, nor by work product protection.For exception to attorney-client:Client made privileged communications with intent to further unlawful/fraudulent act ANDClient carried out crime or fraud o Here, perjury and obstruction of justice in having affidavit preparedFor exception to work product:Client consulted lawyer/used material for purpose of committing crime or fraud

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