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Maureen May
Maureen May
Attorney • (410) 321-6000

What is a Privileged Conversation?

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Legally speaking, there are some situations that your conversations will be considered confidential, and you won’t be compelled to disclose what was said during the conversation in court. Laws regarding privileged conversations protect what is said, either orally or in writing, between spouses, an attorney and his client, a doctor and his patient, and a religious advisor and his advisee.

Spousal Communication

Laws protect communication between spouses in different ways:

  • Marital communications privilege – Communication between spouses is considered privileged so courts cannot compel the disclosure of private spousal conversations. The marital communications privilege lasts long after the marriage is over, but only applies to communications that occurred during the marriage.
  • Spousal testimony privilege – A spouse who is called to be a witness against the other spouse may refuse to testify, and one spouse may prevent the other spouse from testifying against him in certain situations. The spousal testimony privilege lasts only as long as the marriage does, and a divorced spouse may testify about any events occurring before, during, and after the marriage without violating the spousal testimony privilege.

Attorney/Client Communication

Generally, a client has a privilege to refuse to disclose, and to prevent his attorney from disclosing, confidential communications made for the purposes of obtaining legal services, including attorney work product (legal notes and strategies). Attorney/client privilege extends to those who aid the attorney in helping the client – colleagues, secretaries, paralegals, and translators. However, the privilege does not include communications made to promote crime or fraud.

Doctor/Patient Communication

Doctors, including psychotherapists, are not allowed to disclose patient information, including medical histories, conditions, their own observations and opinions without a patient’s permission. The rationale behind doctor/patient privilege is that patients should feel comfortable telling their doctors private and sensitive information without fear that the information will be made public.

Clergy/Penitent Communication

This privilege covers communications made in confidence by a person seeking spiritual advice from a religious advisor, including priests, ministers, rabbis, sensei, imams, and lamas, and other religious leaders. Unlike other privileges, clergy/penitent privilege can extend to group counseling sessions in some jurisdictions.

Confidential Communications That Are Not Privileged

Not all confidential communications are privileged. For example, if someone overhears the private conversation, it is not privileged, such as:

  • The doctor/patient privilege doesn’t apply if a nurse or other healthcare worker is present.
  • The spousal privilege doesn’t apply if the conversation takes place in the presence of another relative, or if the communication is made within any jail or law enforcement building.

Spousal privileges can also be waived. In criminal cases, the witness spouse is usually the one with the power to waive the privilege, while in civil cases both spouses must agree to waive the privilege.