Why is privilege so important in civil cases?
First, let’s consider what can happen to you without a privilege applying.
Danger of Sharing Information With Anyone
When you become involved in a civil lawsuit — or any potential claim — emotions often run high. It’s natural to want to speak to — and get advice from — friends, coworkers, or your family. But with a legal dispute looming, talking to anyone other than your legal representative (“rep”) can destroy your claims or defenses to a civil suit:
- Giving a statement to anyone can be admissible against you,
- A subpoena can be used to compel testimony or documents from anyone with whom you’ve spoken, absent a privilege, and
- Your text messages and emails come into evidence easily, absent a privilege.
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Your Real Protection: Privilege
Here are the major recognized privileges that exist in federal and state courts in Pennsylvania civil cases:
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- Attorney-client
- Spousal
- Doctor-Patient
- Psychotherapist-Patient
- Other Privileges: accountant–client privilege, mediator / mediation privilege, social worker–client privilege
1. Attorney–Client Privilege
This is the strongest and most well-defined privilege in both state (Pa.R.E 501) and federal court (F.R.E. 501) in Pennsylvania. The attorney–client privilege (“privilege”) is a legal rule that protects confidential communications between a lawyer and their client when those communications are made for the purpose of seeking legal advice. This means:
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Your rep cannot be forced to testify about your private conversations;
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Opposing parties cannot discover your private attorney–client discussions; and
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You are free to speak openly with your rep without worrying about consequences.
This privilege exists so you can be fully honest with the legal representative of your choice. Your rep cannot defend you effectively if you feel the need to hide information out of fear it will be used against you. It also works as a “two way street,” meaning, not only are your statements to your lawyer protected; the same applies for your lawyer’s statements to you. Gillard v. AIG Ins. Co., 15 A. 3d 44 (Pa. 2011).
However, it is essential to understand that this privilege can be waived—even accidentally, if you:
- allow a thirty party (including a friend or family member) attend your attorney-client meeting (the third party can be subpoenaed about matters discussed with your rep);
- share information with others beyond your attorney, or if you,
- repeat what your lawyer told you to anyone else, the confidentiality may be lost.
Plus, when a corporation is the party, complications exist in terms of keeping information confidential.
2. Spousal (Marital) Privilege
3. Doctor–Patient Privilege
Protects confidential communications made for medical diagnosis or treatment. However, a major exception exists to this general rule. 42 Pa.C.S. § 5929 (Physician-patient privilege) provides:
“No physician shall be allowed, in any civil matter, to disclose any information … which … shall tend to blacken the character of the patient, without consent of said patient, except in civil matters brought by such patient, for damages on account of personal injuries.”
This means that, if your claim involves any kind of personal injury, the defendant may seek your medical records for treatment for the injury at issue. The defendant may also seek your records for treatment prior to the accident, since you’ve placed at issue a change to your condition before and after the accident, to the extent a judge would find it reasonable to understand the alleged change to your condition from the accident.
4. Psychotherapist–Patient
This is stronger than doctor–patient privilege. A therapist’s ability to diagnose your condition relies almost entirely on the statements you make to the therapist. As such, the law protects such statements from disclosure when made to therapists, psychologists, and sometimes licensed counselors.
5. Clergy–Penitent
This covers confidential spiritual counseling or confessions made to clergy. Pennsylvania Consolidated Statutes, Title 42, Section 5943 provides:
No clergyman, priest, rabbi or minister of the gospel of any regularly established church or religious organization … who while in the course of his duties has acquired information from any person secretly and in confidence shall be compelled, or allowed without consent of such person, to disclose that information in any legal proceeding, trial or investigation before any government unit. (emphasis added).
6. Other Specialized Privileges
In PA, the following also apply:
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Accountant–client privilege. Pennsylvania recognizes a statutory accountant-client privilege; however, it is generally less broad than the attorney-client privilege and has significant limitations and it can be waived. Nor does it apply to an audit of financial statements, for example.
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Mediator privilege. In Pennsylvania, statements made at a mediation are protected primarily by 42 Pa. Cons. Stat. § 5949, which establishes a strong mediation privilege. This statutory rule makes most mediation communications and documents confidential (including the mediation statement sent to the mediator by parties) and generally inadmissible in other legal proceedings. The goal is to encourage open and honest discussions to help the parties resolve their civil dispute, absent fear that the statements may haunt the parties, should settlement discussions cease without a resolution.
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Social worker–client. Pennsylvania does, in fact, recognize a social worker–client privilege, as it is a legal and professional obligation for social workers to protect client confidentiality. As such, a licensed social worker may not reveal confidential information about a patient without the patient’s informed consent, except where there exists a “clear and present danger” or another exception applies.
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