What is Privileged Communication?

In law, privileged communication may have slightly different legal definitions depending on the region in which a person lives. Generally, a privileged communication is a confidential conversation between two people where the person receiving information from someone else cannot pass it on or testify to it in a court setting.

One type of privileged communication exists between an attorney and his or her client. Even though a client might incriminate him or herself during privileged attorney-client communications, the attorney may be prohibited from sharing the information with a third party. This privilege, however, is not absolute. An attorney may not be involved with a client that he knows has lied on the stand. If an attorney is concerned that this might occur, he or she may have to turn the case over to someone else or, as is more often likely, convince the client not to testify. As a result, lawyers frequently tell their clients to not discuss guilt or innocence to avoid this scenario. Additionally, privilege doesn't extend to communication between a client and attorney that has to do with the future commission of a crime; if a client informed an attorney that a crime was to be committed, the attorney is typically required to disclose that information to the proper authorities.

Another common type of privileged communication exists between patient and doctor. The patient-physician or patient-therapist privilege typically prevents the doctor or psychologist from disclosing confidential communications about a patient in or out of court. Like the attorney-client privilege, however, the doctor-patient privilege is not absolute. Doctors and therapists are generally empowered to disclose otherwise privileged information if that person or another person is in physical danger.

There are two types of husband-wife privileges — spousal immunity and marital communication. Spousal immunity has to do with the privilege not to testify against a spouse in a criminal case, and the marital communication privilege has to do with protecting any communications made between spouses for the purpose of civil or criminal cases. These privileges can get confusing when one spouse commits a crime against his or her spouse, which may necessarily waive the privilege. If a spouse commits a crime outside the marriage and confesses it to the other spouse, usually privilege is sustained.

The final main category of privilege is the clergy-penitent privilege. Communications made to a member of the clergy — be it an imam, rabbi, priest or minister — in the capacity of a spiritual advisor is privileged is actually a common law rule. The privilege extends to any person functioning as a spiritual advisor at the time of the communication and is very similar to the attorney-client privilege.

The American legal system typically cites two reasons for having privileged communications at all — for practical purposes and to encourage certain relationships. The practicality argument arose out of priests being unwilling to disclose information about a penitent if it meant the penitent would be up for capital punishment since priests are typically against the death penalty. Additionally, courts note a social purpose for the privilege — without it people might not seek necessary medical attention or hold back critical information that an attorney would need to provide the most compelling case for his or her client. Since laws can vary among jurisdictions, it’s still important for people to understand if the conversation they have really is privileged.