Mitchell K. Karpf is a senior partner at Young Berman Karpf & Karpf P.A. in Florida.

The exclusionary rules regarding privileges protect interests and relationships that have enough societal importance to warrant the sacrifice of the availability of some evidence. The availability and scope of privileges can vary widely by state. This article will serve as an overview of privileges that often arise in the context of family proceedings.

Attorney-client privilege. To invoke the attorney-client privilege, four elements must be satisfied: (1) there must be a communication (2) between privileged persons (3) made in confidence (4) for the purposes of obtaining or providing legal assistance for a client (Restatement (Third) of the Law Governing Lawyers § 68 (2000). The privilege protects the content of the communication but not knowledge of the underlying facts. While the privilege does not protect documents that predate the attorney-client relationship, it does protect information clients communicate to their attorney along with the document. The Restatement requires the communication be made between “privileged persons” rather than “between a client and her attorney” because the privilege applies to consultations before the attorney-client relationship is formed and also extends to “agents for communication”(people reasonably necessary to facilitate clients’ communication with their attorney). The confidence element requires the communicating person to reasonably believe that no one but another privileged person will learn about the content of the communication. Finally, the claimant of the privilege must have consulted with the attorney or other privileged person for the purpose of obtaining legal or other assistance commonly performed by attorneys.

The client holds the privilege, meaning only the client can choose to assert or waive it. Attorneys have the duty to assert the privilege as agents of the client. The privilege is not absolute. It does not protect communications where a client was using the attorney’s services in furtherance of an illegal or fraudulent act, often called the crime-fraud exception. This exception applies only to future wrongdoing, not past crimes. If the exception is invoked successfully, otherwise privileged documents become discoverable.

Fifth Amendment privilege. The Fifth Amendment protects one from self-incrimination. The privilege allows one to refuse to answer questions or make statements that could be used to prove that person committed a crime. However, it does not condone perjury. The privilege permits someone to remain silent, but it does not allow someone to lie and then retroactively invoke the Fifth Amendment.

Attorneys are forbidden from knowingly assisting a client or witness in committing perjury. A problem arises when a client insists on testifying to or providing a statement that the attorney knows to be false. An attorney has a duty to take action to prevent or correct perjury.

Disclosure, however, is not always the most appropriate response. The ABA Model Rules of Professional Conduct provide alternatives to disclosure in the “Four R’s.” (1) Recess the proceedings: If the client lies or is about to lie, an attorney should recess the proceedings immediately to stop the perjury. (2) Remonstrate with the client: An attorney should persuade the client to correct the perjury. (3) Resign: An attorney should only resign if the withdrawal itself will remedy the perjury. (4) Reveal: If there is no other effective response, an attorney must reveal the perjury.

Marital privilege. There are two widely accepted privileges spouses may invoke. The first is a privilege that protects the disclosure of confidential communications between spouses. This privilege protects confidential communications made during the course of the marriage. The other privilege is the protection from adverse spousal testimony, where the testifying spouse holds the privilege, meaning someone can refuse to testify against his or her spouse, or the person can choose to waive the privilege and testify even over the spouse’s objection.

The privilege protecting confidential spousal communications is recognized in most states and is narrower than the general privilege. To invoke the privilege, the asserting spouse must show the communication was made in confidence during the marriage to convey a message to the other spouse. If the communication is made in front of third parties, the privilege is destroyed. Most states have a crime-fraud exception to the spousal communications privilege.

Other professional privileges. Physician’s and therapist’s privilege. Doctor-patient privileges protect communications between patients and their doctors relating to medical treatment. Many states recognize a general doctor-patient privilege. Federal courts do not.

The Supreme Court recognizes a psychotherapist-patient privilege in federal courts, and every state also has a privilege protecting communications made between patients and psychiatrists, psychologists, and licensed social workers. The therapist’s privilege is held by the patient, meaning disclosure is prohibited unless the patient consents. Normally, including third parties in a communication waives the privilege; however, statements made in group therapy sessions may be protected. The privilege does not extend to psychological evaluations pursuant to a court order or involuntary commitment proceedings. If a party agrees to undergo a psychological evaluation during a custody dispute or as part of an adoption proceeding, the results are not protected.

The Health Insurance Portability and Accountability Act (HIPAA) governs privacy rules relating to the disclosure of protected health information. HIPAA allows health-care providers to make disclosures in response to court orders. Disclosure can also be made in response to a subpoena or discovery request without a court order as long as the requesting party makes assurances that the patient has been given adequate notice of the request and the party has made efforts to secure a protective order for the protected health information.

Domestic violence advocate’s privilege. As of 2016, 37 states have some form of privilege protecting communications between a domestic violence advocate and a victim of domestic violence. Eleven states have an absolute domestic violence advocate privilege, meaning only the victim can decide whether disclosure can be made. Other states have carved out exceptions where the privilege does not apply; for example, some states do not apply the privilege where the victim testifies about a portion of the communication.

Accountant’s privilege. A small number of states recognize the accountant-client privilege, which protects communications between an accountant and his or her client made for the purposes of receiving accounting services. Like the other privileges discussed, this privilege generally includes a crime-fraud exception to the privilege. The Internal Revenue Code also codified the accountant-client privilege; however, it is limited to tax advice and cannot be used in state court proceedings.