Husband-Wife
The confidential communication privilege and the privilege not to testify in a criminal case are simply parts of the same privilege.
A. True
B. False
B.False.
See Rule 504. There are 2 different privileges.
Lawyer Smith is the head of marketing for XYZ Corporation. Smith is sitting in an executive management meeting when the president of the company happily announces, “I have solved our competition problem. Last night at dinner, I agreed with QRS Corporation that we will stop trying to undersell each other. In fact, we are now going to agree to a common price for all of our products so that we both charge the same for them to our customers.” XYZ has been sued for antitrust violations and a subpoena has been issued for Smith to testify. Lawyers for XYZ have filed a motion to quash the subpoena on the ground of attorney-client privilege, because Smith is a lawyer for the corporation. You should:
A. Grant the motion to quash.
B. Deny the motion to quash.
B.Deny the motion to quash.
The privilege applies only when the communication was made for purposes of obtaining legal services from the attorney. See Rule
503(a)(1); Harlandale ISD v. Cornyn, 25 S.W.3d 328, 332 (Tex.App.--Austin 2000, pet. denied).
Plaintiff sued a physician and his technician, alleging that the technician sexually assaulted the plaintiff during a procedure. During discovery, plaintiff requested the identities of any other persons who had made similar complaints. Defendants assert that the requested information is privileged under Rule 509. Is it?
A. Yes.
B. No.
A. Yes.
See In re Anderson, 973 S.W.2d 410 (Tex.App.--Eastland 1998, orig. proceeding).
Elaine worked as a part-time paid bookkeeper for her church. She is prosecuted for embezzling funds from the church. Brother Jim, the pastor, is called as a witness for the State. He testifies that after he became suspicious about certain entries in the books and payments from accounts, he called Elaine into his office and questioned her. No one else was present. Some of Elaine’s responses are probative of the State’s case. Elaine invokes Rule 505. Her objections should be:
A. Sustained.
B. Overruled.
B. Overruled. Rule 505(b), General Rule of Privilege, only covers communications to a member of the clergy “in the member’s professional character as spiritual advisor.”
See, e.g., Maldonado v. State, 59 S.W.3d 251, 252-53 (Tex.App.--Corpus Christi 2001, pet. ref’d).
During a deposition in a civil case, the president of the corporate plaintiff refreshed his memory by referring to 24 pages of handwritten notes prepared by him at counsel’s direction, which summarized the events relevant to the litigation. The frequency of the witness’s references is disputed. Defendant now seeks production of the notes; plaintiff asserts lawyer-client privilege.
The court should order production of:
A. All 24 pages.
B. None.
C. Only the portions found to have been actually referred to by the deponent.
A. All 24 pages.
The federal court in the actual case, S & A Painting Co. v. O.W.B. Corp., 103 F.R.D. 407 (W.D.Pa.1984), answered C. There is no applicable codified federal rule. But Texas Rule 511(1) says a privilege is waived if the holder voluntarily discloses “any significant part of the privileged matter.”
D seeks to invoke the husband-wife confidential communication privilege. D intended his communications to be confidential, believed himself to be married, and “wife” believed herself to be married to D. Evidence established that wife had never been lawfully divorced from her first husband. You should:
A. Compel the testimony (there is no privilege).
B. Exclude the testimony (there is a privilege).
A. Compel the testimony. There is no privilege. There was no legal marriage between these parties.
See Weaver v. State, 855 S.W.2d 116, 120-12 (Tex.App.--Houston [14th Dist.] 1993, no pet.).
P has learned that a meeting occurred among representatives of X Company, Y Company, and Z Company, and lawyers for all three. In the present litigation, X and Y are adverse parties to each other. Z is not a party. P has filed motions to quash. Affidavits supporting the motions establish that at the time of the meeting X, Y and Z shared a common interest and that the meeting was for purposes of privately obtaining legal services in furtherance of the interest. Should you grant the motions?
A. Yes.
B. Not as to X and Y because they are adverse.
C. Not as to Z because it is not a party.
A.Yes.
See Ryals v. Canales, 767 S.W.2d 226, 228-29 (Tex.App.--Dallas 1989, orig. proceeding); Gulf Oil Corp. v. Fuller, 696 S.W.2d 769, 771, 774 (Tex.App.--El Paso 1985, orig. proceeding).
Plaintiffs brought a wrongful death action against a hospital alleging that transfused blood infected their decedent with AIDS, eventually causing her death. During discovery, plaintiffs requested information identifying the donors of the transfused blood. The hospital asserts that the requested information is privileged under Rule 509. Is the information privileged?
A. Yes
B. No
B. No. There is no indication that the donors were “patients” as defined in Rule 509(a)(1) (“person who consults or is seen by a physician to receive medical care”).
See Tarrant County Hosp. Dist. v. Hughes, 734 S.W.2d 675 (Tex.App.--Fort Worth 1987, orig. proceeding).
Defendant physicians in wrongful death medical malpractice case call hospital chaplain to elicit statements made to him by plaintiff widow while decedent husband was in surgery. During the conversations at times a surgeon and/or a nurse were present. Plaintiff invokes Rule 505. Her objections should be
A. Sustained.
B. Overruled.
A. Sustained. Unlike some other privileges, the clergy privilege is often applicable despite the presence of another person. Rule 505(a)(2) defines a communication as confidential if it is “not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.”
See Nicholson v. Wittig, 832 S.W.2d 681 (Tex.App.—Houston [1st Dist.] 1992, orig. proceeding).
Ex-wife filed bill of review against ex-husband claiming that he concealed property during the divorce. Defendant contends that plaintiff and/or her divorce attorney had knowledge of the property in question at that time, and seeks to depose the attorney. Plaintiff asserts attorney-client privilege. The privilege claim should be:
A. Sustained
B. Overruled
B. Overruled.
See Parten v. Brigham, 785 S.W.2d 165, 168 (Tex. App.--Fort Worth 1989, orig. proceeding). “Offensive use” doctrine applies.
Wife is asked on direct examination to describe husband’s abusive conduct by telling the jury what he did to her on a specific occasion. Husband objects citing Rule 504. You should:
A. Overrule the objection if this is a civil case but not if it is a criminal case.
B. Overrule the objection.
C. Sustain the objection regardless of whether this is a civil or criminal case.
B. Overrule the objection.
See Rule 504(a)(2), 504(a)(4)(B);
Sterling v. State, 814 S.W.2d 261, 261-62 (Tex.App.--Austin 1991, pet ref’d) (discussion of civil exceptions, who holds the privilege, and statements vs. acts distinction).
D calls his former attorney to testify about notes he wrote after looking at the original draft of a police report detailing the case against D. The lawyer will testify that his notes reflect a discrepancy in an important fact that will discredit evidence presented by the State. Does D waive his attorney-client privilege by offering the lawyer’s testimony?
A. Yes.
B. No.
B. No. The lawyer’s testimony presents work product, not privileged client communications.
See Cameron v. State, 241 S.W.3d 15, 19 (Tex.Crim.App.2007).
Plaintiffs brought action against clinic and hospital alleging that they negligently hired and supervised a physician, who is also a defendant, who allegedly had psychiatric and substance abuse problems. Plaintiffs seek the physician’s personal medical records. Are the records privileged?
A. Yes
B. No
No. The exception in Rule 509(e)(4) applies (“record relevant to an issue of the physical, mental or emotional condition of a patient in any proceeding in which any party relies upon the condition as a part of the party’s claim or defense”).
See R.K. v. Ramirez, 887 S.W.2d 836 (Tex.1994).
Defendant is prosecuted for indecency with a child. The State calls defendant’s pastor, and seeks to elicit damaging statements made by the defendant to the pastor in confidence. Defendant’s objections should be
A. Sustained
B. Overruled
B. Overruled. Although Rule 505 contains no exceptions, Tex.Fam.Code Ann. § 261.202 overrides privileges other than attorney-client in proceedings regarding abuse or neglect of a child.
See, e.g., Almendarez v. State, 153 S.W.3d 727 (Tex.App.--Dallas 2005, no pet.).
In a celebrated case, Mr. von Bulow was first convicted of assault with intent to murder his wife by injecting her with insulin (resulting in permanent coma), then acquitted upon retrial. With von Bulow’s consent, one of his attorneys published a book about the case. Meanwhile a civil action by the wife and her children against von Bulow proceeded. The published book recounted parts of four conversations between von Bulow and attorneys. Plaintiffs sought production of (1) the remainders of the four conversations, (2) all communications with the book author “relating to” the four conversations, and (3) all communications with any defense counsel relating to the four conversations. In Texas, the court should order production of:
A. None
B. (1) only
C. (1) and (2) only
D. All
B. (1) only.
See Texas Rule 511(1). Since the partial disclosure was extrajudicial, no broader implied waiver is appropriate, nor is “offensive use” applicable. The federal court, having no codified rule, held A.
See In re von Bulow, 828 F.2d 94 (2d Cir.1987).
In a criminal case, the defendant (husband) chooses not to call his wife as a witness in his defense. Wife also refuses to testify when called by the prosecution. In closing argument, the prosecution argues, “Ask yourself, is D’s alibi true? Don’t you think if the story he told you were true, Mrs. Smith would have taken the stand in his defense and told you that? We didn’t hear from Mrs. Smith, ladies and gentlemen, did we?” This argument is:
A. Permissible.
B. Impermissible.
A. Permissible. See Rule 504 (b)(2); Babineaux v. State 777 S.W.2d 724, 731-32 (Tex.App.--Beaumont 1989), pet. dism’d, 803 S.W.2d 301 (Tex.Crim.App.1990).
This is an exception to the normal rule forbidding comment on the exercise of a privilege.
Defendant was convicted of making a false report. During the punishment phase, the State called an attorney who had represented defendant as plaintiff in an unrelated civil action. Over objections on grounds of lawyer-client privilege, the following was elicited from the attorney:
[PROSECUTOR]: Did you request of this defendant that she provide some proof of this allegation?
[ATTORNEY]: Yes.
[PROSECUTOR]: And did she ever provide any proof to substantiate the allegation that Dr. Goldberg had given her some sort of disease?
[ATTORNEY]: Some, yes.
[PROSECUTOR]: Sufficient for the lawsuit?
[ATTORNEY]: Not sufficient for a finding of liability, no.
Did the court err in overruling the objections?
A. Yes
B. No
B.No.
See Harvey v. State, 97 S.W.3d 162, 168 (Tex.App.—
Houston [14th Dist.] 2002, pet. ref’d) (“The privilege protects
what the client has disclosed in confidence, not the fact that an
attorney has requested such disclosure. * * Several statutes and
rules require attorneys to investigate claims before filing them,
and provide for sanctions against attorneys who do not. * * *
We do not believe an attorney is required to remain silent when asked if that duty has been fulfilled.”)
Action by estate and surviving family of nursing home patient for injuries to the patient at the hands of another patient. During discovery, plaintiffs sought records of the assailant and testimony concerning his condition. Defendants and respondents asserted privileges under Rules 509 and 510. Should the privilege claims be sustained?
A. Yes.
B. No.
B.No. Both Rules 509 and 510 contain exceptions “in any proceeding regarding the abuse or neglect, or the cause of any abuse or neglect, of the resident of an institution as defined in Tex. Health & Safety Code § 242.002.”
See In re Arriola, 159 S.W.3d 670 (Tex.App.-Corpus Christi 2004, orig. proceeding [leave denied]).
In a criminal prosecution, the defendant calls his longtime pastor, who testifies to the defendant’s good character for pertinent traits. On cross-examination, the prosecutor asks the pastor whether in fact the defendant confessed to him that he committed the crime with which he is charged. Defendant objects, invoking Rule 505. Defendant’s objection should be:
A. Sustained
B. Overruled
B. Overruled.
Rule 511(2) provides that any communication privilege is waived in this situation “insofar as such communications are relevant to such character or character trait.”
Defendant was erroneously compelled to answer questions in violation of his privilege against self-incrimination, despite his invocation of that right. Can he now be convicted of perjury to the extent that the compelled answers were knowingly false?
A. Yes
B. No
A. Yes.
See Butterfield v. State, 992 S.W.2d 448 (Tex.Crim.App.1999).
D goes to Law Vegas for a wild weekend. Over drinks in a casino D, meets John, the man of her dreams. D describes her plans to win a quick $100,000 over the weekend using a fraudulent scheme she developed while getting her math Ph.D at Rice. Sure enough, five casinos later, D has her $100,000 and is ready to head home to Texas and start her new business. D realizes that John knows her whole scheme and has witnessed most of it, so she decides to marry him to keep him quiet. After a quick stop at the Elvis Chapel of Love, she returns home with a photo album and husband. D can’t stop her quick-money ways and is eventually charged with theft by fraud in Texas, which is the subject of the current trial. John tried to make the marriage work but eventually divorced D. John has been called to testify by the State.
A. D can prevent John from testifying at all.
B. John can testify about everything from the
beginning of the weekend until the present.
C. D can’t stop John from testifying, but can still
prevent John from testifying about confidences
made during their marriage.
C. D can’t stop John from testifying, but can still prevent John from testifying about confidences made during their marriage.
See Norvell v. State, 149 Tex. Crim. 213, 214-215, 193 S.W.2d 200, 201 (1946), and Medrano v. State, 701 S.W.2d 337, 339-41 (Tex.App.--El Paso 1985, pet. ref’d) (scope of privileges, sham marriages, divorce, and holder of each privilege).
P wants to introduce a letter from D corporation to its lawyers written two months before the lawsuit by P was filed. P argues the letter is not privileged because of the crime-fraud exception. Which of the following statements is correct?
A. D must establish by a preponderance of the evidence that it had no criminal or fraudulent intent at the time it requested legal advice from counsel.
B. P must make a prima facie showing of contemplated fraud and the relationship of the letter to that fraud.
B. P carries the burden.
See Warrantech Corp. v. Computer Adapters Services, Inc., 134 S.W.3d 516, 527 (Tex.App.--Fort Worth 2004, no pet.).
Murder. “John McGahey was a member of Alcoholics Anonymous (AA) and testified he met appellant at an AA meeting two or three weeks prior to the killing and agreed to sponsor appellant and help him with the AA 12-step program. McGahey had also met Chris (the victim) about two times. McGahey talked to appellant almost every day before the killing and testified that appellant talked about killing Chris. On the day of the murder, appellant called McGahey and told him he fought with Chris, that she pulled a knife, cut him, and that he pulled a knife and hurt her and said ‘either she's in Ben Taub or she is dead.’ McGahey called the police and reported the conversation to Sgt Belk. McGahey led police officers to appellant who was found and arrested walking on the street.”
Were the accused’s statements to McGahey privileged as “a communication to any person involved in the treatment or examination of alcohol or drug abuse by a person being treated voluntarily”?
A. Yes.
B. No.
B. No. “John McGahey was a ‘sponsor’ offering to help appellant with the 12-step program of Alcoholics Anonymous and was not ‘a person involved in the treatment or examination of alcohol or drug abuse by a person being treated voluntarily * * *.’ * * * Furthermore, the communications admitted in evidence had nothing to do with the AA 12-step program because it [sic] did not involve appellant's alcohol abuse. We find that appellant's communications to John McGahey were not privileged * * *.” McAllister v. State, 933 S.W.2d 763, 767 (Tex.App.--Houston [14th Dist.] 1996, pet. ref’d)
Tort action against church for severe injuries to child caused by dangerous playground equipment. The equipment had been tampered with by unknown persons. In discovery, plaintiffs sought to elicit from the church pastor information he had received concerning the identity of the unknown persons. The pastor declined to reveal not only the content of any such communications but even the identity of the source or sources, asserting clergy privilege, saying “it was told in the confidence of the confessional--informal confessional that we Methodists use.”
The identity of the source is:
A. Privileged.
B. Not privileged.
A. Privileged.
See Simpson v. Tennant, 871 S.W.2d 301 (Tex.App.--Houston [14th Dist.] 1994, orig. proceeding).
It is axiomatic that a party claiming a privilege has the burden of establishing it. If a privilege is shown to apply to matter, which party has the burden regarding possible waiver?
A. The party claiming the privilege must also show no waiver.
B. The party seeking the material must show waiver.
C. Different burdens apply in civil and criminal cases.
C. In criminal cases, “the party claiming waiver has the burden of going forward with evidence of waiver.” Carmona v. State, 941 S.W.2d 949, 954 (Tex.Crim.App.1997).
In civil cases, at least where the matter has been somehow disclosed, the party asserting privilege has the burden of showing that no waiver occurred. Jordan v. Court of Appeals for Fourth Supreme Judicial Dist., 701 S.W.2d 644, 649 (Tex.1985).