Privileged Communication

Key takeaways
* Privileged communication is a legal protection that keeps certain communications confidential between specific relationships (for example, attorney–client and doctor–patient).
* The privilege is held by the client, patient, or penitent and can be waived if the protected information is shared with unauthorized third parties.
* Common exceptions include threats or disclosures of harm, child or elder abuse, and communications about jointly committed crimes.
* The privilege is not absolute and varies by relationship and jurisdiction.

What is privileged communication?

Privileged communication is a legal doctrine that prevents a recipient of certain communications from being compelled to disclose those communications in court. It exists to promote open, honest exchanges in relationships where confidentiality is essential to effective professional or personal interaction.

Common privileged relationships
* Attorney–client
* Doctor–patient
* Priest–penitent (clergy–parishioner)
* Spouses (spousal privilege—see below)
* Accountant–client (in some contexts)
* Reporters and sources (recognized in some jurisdictions)

How the privilege works
* The privilege is typically owned by the client, patient, or penitent, who can assert or waive it.
* The recipient (e.g., attorney, doctor, clergy) must keep the communication private unless the holder waives the privilege.
* Communications must be intended as confidential and occur in a private context to qualify.
* Some persons who assist the professional (e.g., a lawyer’s paralegal, a doctor’s nurse) are generally treated as agents and do not destroy privilege when they are involved to the extent necessary for the professional service.

Spousal privilege
* Two distinct rules often apply:
– Testimonial spousal privilege: one spouse cannot be forced to testify against the other in many situations.
– Marital communications privilege: protects confidential communications made during the marriage.
* These protections vary by jurisdiction, may survive divorce in some respects, and can be waived by the holder.
* Privilege usually does not protect communications involving crimes, threats, or abuse.

Important exceptions
* Waiver by disclosure: sharing privileged information with unauthorized third parties generally destroys the privilege.
* Harm and threats: communications that disclose intent to harm oneself or others typically are not protected. Professionals may have mandatory reporting obligations.
* Abuse or neglect: suspected child abuse, elder abuse, or abuse of vulnerable adults is commonly excluded from protection.
* Joint criminal activity: communications made in furtherance of ongoing or future criminal activity are not privileged.
* Jurisdictional limits: specific rules and the scope of privilege vary by state and country; some relationships are privileged in some places but not others (e.g., reporter-source privilege).

Practical considerations
* If confidentiality is important, clarify the scope and limits of privilege at the outset of the relationship.
* Avoid sharing privileged communications with people outside the protected relationship.
* Be aware that legal and professional duties (such as mandatory reporting) may override privilege in certain circumstances.
* When in doubt, ask the professional how they handle confidentiality and under what conditions they would be required to disclose.

Bottom line

Privileged communication protects confidential exchanges in certain relationships to encourage candid communication and effective representation or care. However, the protection has well-established limits—especially where harm, abuse, or criminal activity is involved—and can be waived by disclosure. Understanding the scope of privilege in your jurisdiction and the professional’s reporting obligations helps protect confidentiality and manage expectations.