Introduction
A privilege always involves private communication. In addition, the communication must remain private. If the communication does not remain private, it loses its value as a privilege (unless the disclosure of the communication was through no fault of the person owning the privilege).
The privilege always belongs to the person in legal jeopardy. For instance, if a woman talks to her attorney, the communication is privileged. Only the woman (who is the one who owns the privilege) may waive it.
Privileges are important to understand, because:
• They affect the ability of a witness to testify
• Privileges are easily waived, often inadvertently.
Once waived, a person who normally would have access to a privilege may lose that right.
Following are some comments about the major privileges, and especially how they affect paralegals.
Attorney/Client Privilege
Obviously the most important to a paralegal. The attorney may be found liable for malpractice if a paralegal violates the confidentiality of the client.
Doctor/Patient Privilege
A paralegal should be sensitive to a patient's right to have medical records kept confidential. But be aware that the privilege is usually waived if a party claims to have been physically or mentally damaged. Your client may have a right to records to determine whether the damages are real, or if they were pre-existing.
Privilege Against Self Incrimination
The 5th Amendment only applies in criminal matters. But if a person is also being sued in civil court for a criminal act, the party may refuse to testify until s/he is no longer in criminal jeopardy.
Governmental Information
It is very difficult to gain access to government records that are privileged, and many that aren't privileged. But consider trying the Freedom of Information Act if any of the records could constitute public information.
Clergy/Penitent Privilege
A paralegal may want to inform the client that only private communication within the context of a spiritual advisory relationship would be protected by this privilege.
Spousal Communications Privilege
One spouse often tells another spouse that they can't testify about an abusive relationship because of this privilege. That is a misconception. A party seeking legal action against a spouse is not bound by the privilege (at least as to that specific legal action). Also, if the welfare of a child is involved, the privilege may not be enforceable.
In all privileges, private communication or records are involved. And in order for the privilege to be valid, it must remain confidential. If the confidentiality is broken, the break must not be committed by the person who owns the privilege.
Paralegal Perspectives . . .
PRIVILEGES . . .
As a paralegal, the most important privilege for you to be aware of is the Attorney/Client Privilege. You need to be aware that the privilege belongs to the client, and is established through communication with the attorney.
THERE IS NO PARALEGAL/CLIENT PRIVILEGE.
However, work that you perform, and communication you have with the client is either work product, privileged, or both. If something is considered work product, or privileged, it is not discoverable to the other party. But material and communication engaged in by the paralegal is only protected from discovery by the Attorney/Client privilege.
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