What Is Privileged Communication? How It Works and Examples

What Is Privileged Communication?

Privileged communication is an interaction between two parties in which the law recognizes a private, protected relationship. Whatever is communicated between the two parties must remain confidential, and the law cannot force their disclosure.

Even disclosure by one of the parties comes with legal limitations. There are, however, exceptions that can invalidate a privileged communication relationship. There are also various circumstances under which privileged communication can be waived, either deliberately or unintentionally. Commonly cited relationships where privileged communication exists are those between attorney and client, doctor–or therapist–and patient, and priest and parishioner.

How Privileged Communication Works

In addition to attorney-client privilege and conversations with medical professionals and religious officials, privileged communications include those between two spouses, accountant, and client, and, in some states, reporters and their sources.

In professional relationships, the right of protection for the communication belongs to the client, patient, or penitent. The recipient of the information must keep the communication private (unless the privilege is waived by the discloser of the information). If the recipient of the information fails to keep the information private, in many instances they can lose their operating license.

The key provisions of privilege between spouses are that courts cannot force husbands or wives to disclose the contents of confidential communications made during marriage—nor can either spouse be compelled to testify against the other. These rights, which endure even after a marriage is dissolved, are designed to protect the honesty and confidentiality of marriage. However, these protections do not prevent one or the other spouse from testifying against the other in court (should they choose to do so).

Special Considerations

To ensure confidential status in a privileged communication relationship, the communication made between the two parties must take place in a private setting–for example, a meeting room–where the parties have a reasonable expectation that others might not overhear them.

However, the privileged status of the communication ends if–or when–the communication is shared with a third party that is not part of the protected relationship. However, a person who is an agent of the recipient of the information—an accountant's secretary, say, or a doctor's nurse—is generally not considered to be a third party who jeopardizes the privileged status of the communication.

It is important to keep in mind that there are situations where privileged communications stops being private. For example, if there have been disclosures of harm to people, or the threat of harm to people in the future. Communications with medical professionals are not protected when the professional has reason to believe the patient may bring harm to themselves or others.

The lack of protection typically extends to suspected abuse of children or other vulnerable people, such as the elderly or disabled. Even between spouses, privileged communication typically does not apply in cases involving the harm, or the threat of harm, to a spouse or children in the couple's care, or to crimes jointly committed with the other spouse.