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 parties remains 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 and various circumstances under which it 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.
Protections Under Privileged Communication
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.
- Privileged communication protects the confidentiality of interactions between two parties, whom the law classifies as entitled to a private, protected relationship.
- Some relationships that provide the protection of privileged communication include attorney-client, doctor-patient, priest-parishioner, two spouses, and (in some states) reporter-source.
- If harm—or the threat of harm—to people is involved, the privileged communication protection disappears.
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 do so, 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. Note, though, that these protections do not prevent one or the other spouse from testifying against the other, should they choose to do so.
The Confidentiality of Privileged Communication
It isn't enough that such communications be made between people who are in a legally recognized protected relationship. To ensure confidential status, the communication must take place in a private setting, such as a meeting room, where the parties have a reasonable expectation that others might not overhear them.
Also, 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.
When Privileged Communication Stops Being Private
Then come situations where the communications involve disclosures of harm to people or merely the threat of harm 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, privilege 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.
Note that some of these exceptions may vary according to the jurisdiction, which is typically a state.