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A WORD ABOUT PRIVILEGES

When lawyers talk about privilege they mean the right to have communications between two or three people confidential. Where a privilege exists, one party can not be forced to reveal what the other said in confidence.

Most people are aware that they can talk to a lawyer and neither they not the lawyer can be forced to disclose the contents of the conversation. A lawyer’s staff acting pursuant to the lawyer’s direction is also privileged. Similarly, a wife can not be forced to tell a third party the contents of a discussion with her husband or vice versa. The privilege goes both ways. A spouse is however, competent to testify against the other spouse. The husband can not be forced to reveal the contents of a conversation with his wife. There is also a psychiatrist, psychologist, or any type of psychological professional patient privilege and a clergy -parishioner privilege. Most of these privileges are based on public policy that certain conversations should be inviolate.

Somewhat surprisingly to many lawyers and judges is the fact that Georgia does not recognize privilege between a parent and a child or a doctor and a patient (except for a psychiatrist or other psychological professional). With respect to doctor patient privilege, a federal court deciding cases based on state law uses the law of the state in which the case arose. If the case is one involving a federal statute such as discrimination there is no privilege although various statutes do say that the communications are confidential

. Georgia law recognizes an accountant client privilege however the federal government does not adhere to this privilege so your accountant can be compelled to testify against you. This is important because the IRS can subpoena your accountant to find out what you told him about your finances. There does exist a way to circumvent this privilege by having your lawyer engage the accountant (or other expert) for work on a particular matter. That way the accountant becomes an agent of the lawyer protecting the work as attorney work product.

Although there may be an evidentiary privilege, that privilege can be lost if a discussion between privileged parties is made in the presence of a third party who does not have a privilege. For example, some people bring a relative or friend to a consultation with a lawyer. While this is OK if the lawyer agrees, both the lawyer and the client must understand that the friend, client and lawyer can be forced to testify about the meeting and what was said due to the presence of a third party. This is true even if the third party overheard the conversation. If the parties did not take care to keep their communication confidential the law won’t protect it. If you intend to keep your conversation with your spouse or psychological professional or a clergy confidential you must have that conversation in a place where you are not going to be overheard.

The laws regarding privilege can be confusing and seemingly contradictory, therefore, if you have any question whether something is privileged or not, talk to your attorney.