Key Takeaways

  • Privileged communication refers to confidential exchanges in legally protected relationships (e.g., attorney–client, doctor–patient, clergy–penitent, and marital).
  • Not all private conversations qualify; they must occur in confidence, without third parties, and within a recognized legal relationship.
  • Privileges belong to the client, patient, or penitent—not the professional—and can be waived, sometimes unintentionally.
  • Exceptions exist: communications may lose protection if they involve future crimes, public safety concerns, or disclosure to outsiders.
  • Marital privilege has two forms: spousal communications (protecting private conversations) and spousal testimony (preventing compelled testimony).
  • Courts balance confidentiality with public interest, sometimes limiting privilege when transparency outweighs privacy.

What Is Privileged Communication?

Conversation that takes places within the context of a protected relationship, such as that between an attorney and client, a husband and wife, a priest and penitent, and a doctor and patient. The law often protects against forced disclosure of such conversations. However, there are exceptions that can invalidate a privileged communication, and there are various circumstances where it can be waived, either purposefully or unintentionally.

Those statements made by a client to his counsel or attorney, or solicitor, in confidence, relating to some cause Or action then pending or in contemplation. Such communications cannot be disclosed without the consent of the client.

Purpose and Policy Behind Privileged Communication

The legal def privileged communication serves a broader public policy function beyond individual privacy. By ensuring confidentiality, it fosters candor between parties—patients reveal sensitive health information, clients share full details with their lawyers, and spouses communicate openly without fear of exposure in court. Legislatures and courts protect these exchanges to strengthen relationships considered essential to society. However, legal scholars also note that privileged communication can act as a form of censorship, potentially preventing relevant information from reaching the public or judicial system. This dual role makes it a delicate balance between promoting trust and maintaining transparency.

What Qualifies as Privileged Communication?

In judicial proceedings, the law allows people to refuse to disclose the contents of certain privileged conversations and writings. Communications between an attorney and client, husband and wife, clergyperson and penitent, and doctor and patient are all privileged. In a few states, the privilege extends to a psychotherapist and client and to a reporter and her source.

Common Types of Privileged Relationships

While state laws vary, the most widely recognized privileged relationships include:

  • Attorney–Client: Protects confidential legal advice and case discussions.
  • Doctor–Patient / Psychotherapist–Client: Safeguards sensitive medical or psychological details.
  • Clergy–Penitent: Ensures confidentiality for spiritual guidance and confessions.
  • Spousal Privilege: Shields marital communications and sometimes testimony.
  • Journalist–Source: Recognized in certain states, protecting reporters’ confidential sources.

Some jurisdictions also extend protection to professional relationships involving social workers, accountants, or interpreters when confidentiality is vital.

How Do Communications Qualify for Privileged Communication Protection?

To qualify for privileged status, communications must generally be made in a private setting (that is, in a context where confidentiality could reasonably be expected). The privilege is lost (waived) when all or part of the communication is disclosed to a third person.

Limits and Exceptions to Privileged Communication

Although the law respects these protections, privileges are not absolute. Exceptions include:

  • Crime–Fraud Exception: Communications furthering a crime or fraud are not protected.
  • Public Safety: Courts may compel disclosure if withholding information could endanger others.
  • Third-Party Presence: Confidentiality is lost if an unrelated third party is present.
  • Waiver: Voluntary or accidental disclosure can remove protection.

These limits underscore that privilege is meant to protect legitimate, trust-based exchanges, not shield misconduct.

Can a Person Reveal Privileged Communications Without the Other Person's Consent?

These privileges are held by the client (but not the lawyer), the patient (but not the doctor or psychotherapist), the speaking (but not the spoken-to) spouse and both the clergyperson and the penitent. The lawyer, doctor, psychotherapist and spoken-to spouse, however, cannot reveal the communication without the other person's consent. The client, patient, speaking spouse, clergyperson and penitent may waive the privilege (that is, testify about the conversation) and also may prevent the other person from disclosing the information.

Who Holds and Controls the Privilege?

The legal def privileged communication emphasizes that control lies with the protected party. For example:

  • Attorney–Client: Only the client may waive the privilege.
  • Doctor–Patient: Patients, not doctors, control whether details are revealed.
  • Spousal Privilege: The communicating spouse can prevent disclosure.

Professionals cannot disclose protected information without consent, but clients or patients can choose to waive it. In some cases, waiver occurs indirectly, such as when a patient puts their mental health at issue in a lawsuit.

Example of Privileged Communications

Example: Sue and Martin are divorcing. When Martin first left Sue, he emptied out a joint bank account and placed that money in a separate account in another state. He refuses to tell Sue where the money is, but he has told his lawyer, Ann. The discussion between Martin and Ann is privileged, and unless Martin authorizes Ann to tell Sue where the money is, or unless Martin himself tells another person about his conversation with Ann, Ann cannot be forced to disclose the information.

Are Marital Communications Protected By Privileged Communication Laws?

Marital communications privilege. Courts cannot force husbands and wives to disclose the contents of confidential communications made during marriage. The purpose of the privilege is to protect and promote honesty and confidence within marriages.

Spousal privilege. Courts cannot force husbands and wives to testify against each other. For example, when a former husband trying to gain custody of his child called his ex-wife's new husband as a witness to testify about her treatment of the child, the court refused to force him to testify on the grounds that it could jeopardize an existing marriage.

Distinguishing Marital Privileges

Marital privilege comes in two forms:

  1. Marital Communications Privilege: Protects confidential conversations made during marriage, even after divorce.
  2. Spousal Testimonial Privilege: In some jurisdictions, a spouse cannot be compelled to testify against the other during marriage.

These privileges aim to protect marital trust but differ in scope. The communications privilege is broader, applying to any private statements made during marriage, while testimonial privilege is limited to testimony during the marriage itself.

Example of Marital Communications Protected By Privileged Communications Laws?

Example: Sandy has a budding marijuana brownie business which she operates out of her home. Sandy has told her husband, Doug, about her endeavors. All private conversations between them are privileged; that is, if Sandy is ever prosecuted for her business, she can prevent Doug from disclosing what he knows.

Frequently Asked Questions

  1. What is the legal def privileged communication?
    It is a rule that protects confidential conversations in legally recognized relationships, such as attorney–client or doctor–patient.
  2. Can privileged communication ever be broken?
    Yes. Exceptions include crime–fraud involvement, threats to public safety, or disclosure to outsiders.
  3. Who can waive privileged communication?
    The privilege belongs to the client, patient, or spouse—not the professional. Only they can waive it, intentionally or accidentally.
  4. Are all spousal communications protected?
    Most private marital communications are protected, but testimony and exceptions vary by jurisdiction.
  5. Does privileged communication apply to journalists and sources?
    Some states recognize journalist–source privilege, but it is not uniformly available nationwide.

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