What is “Privilege” and Does it Work in Civil Cases?

People may have heard phrases like “attorney-client privilege” or “doctor-patient privilege” before.  Even many people who have heard these phrases confuse them with “confidentiality,” and do not quite understand how these work.

There are many types of privilege, which protect information from coming out in court.  In Utah, they refer to specific protections, either in case law, the Rules of Evidence, the U.S. Constitution, the Utah Constitution, or Utah statute that stop a court from forcing someone to testify about particular information or topics.  Hopefully, this guide by Utah personal injury lawyer Darwin Overson will help explain the basics of the types of privilege in Utah.

What is the Difference Between “Privileged” and “Confidential”?

Gavel 2 - What is “Privilege” and Does it Work in Civil Cases?

The difference between when something is “privileged” and when something is merely “confidential” is confusing for a lot of people, even some lawyers.  Something that is confidential merely means that it is private and secret.  Usually people like doctors, therapists, and lawyers have ethics codes that govern how they do their job.  Those codes call things “confidential” if the professional is not supposed to tell others the information.  The law, on the other hand, may still require someone to give out confidential information when asked in the court of law.  Usually, ethics rules allow a professional to obey a court order for information without losing their license or anything, but many professionals will still fight to keep the information private.

Some things, though, the government has decided are so important that they be kept private that not even a court demand people to say them.  Privilege is that protection on the information.

What Information is Privileged?

Utah law sets up multiple specific protections under privilege, but there are some rules that each type of privilege shares:

  • Confidentiality – Privilege only protects communications made in private.  If you are posting something on Facebook or saying it in a crowded office, it is unlikely to be considered “confidential.”
  • Who holds the privilege? – A privilege is held by the person who gives information to someone else.  That generally means the recipient of the information is unable to say the information unless the giver of the information allows it.
  • Only protects communications – A privilege only protects communications the person makes.  It cannot be extended to physical objects, only testimony.
  • Crime or harm – Often, there are exceptions that communications used to commit a crime are not protected, and information that someone is in imminent danger of harm is not protected.

Aside from these general rules, there are specifics involved in each type of privilege.

What Types of Privilege Exist?

The following are all important areas of privilege under the Utah Rules of Evidence:

  • Clergy – This protects anything communicated in private to any priest, minister, or similar person for any religious organization.  There are no requirements regarding belief nor that the communication is specifically part of a confession – any private communication is protected.
  • Lawyer  – In order to allow people clear and open communication with their attorneys, everything that is said in private to your lawyer is protected.  This means that your attorney cannot divulge confessions or secret information you say.  There are also some special rules for joint clients and deceased clients.  In cases against the lawyer, some of this privilege may be waived.
  • Doctor or Therapist – In order to help people get the best care they can, any communications made to your doctor or mental health therapist are protected.  That includes things the doctor said, such as diagnoses and information.  This can be overridden, though, in cases that require proving the diagnosis as part of the case or court orders for hospitalization.  If the patient later sues the doctor for medical malpractice, some of this privilege may be waived.
  • Government Informer – Someone who secretly reports information to the government is protected from the government disclosing their identity.  This is waived if the informant agrees to testify in court, since he will actually be in court.
  • Reporters  – Reporters are protected from having to disclose confidential information or the identities of their confidential sources.

“Husband-Wife” or “Spousal” Privilege

Courtroom 2 - What is “Privilege” and Does it Work in Civil Cases?

This is probably the most confusing privilege, because it actually has two parts.  Part one says that a spouse may not be forced to testify against the other spouse – but that only applies in criminal cases.  Part two applies in both civil and criminal cases and protects any confidential communications made during the marriage.  That means that, while one spouse may testify as to the other spouse’s actions or things the other spouse said in public, the spouse cannot testify about anything they said in secret while married.  This is waived if the spouses are suing each other or a spouse is charged with a crime against the other (or someone else in their household).

If You Have Questions About Privilege, Contact a Salt Lake City Personal Injury Attorney for Help

There are additional privileges created in Utah by statute and the Rules of Evidence.  Some of them are very specific, such as a witnesses’ privilege not to answer a degrading question.  Most simply aim to protect information given to some type of counselor or the government.  Always check with your lawyer before answering questions when you think the information might be privileged.

If you are going to be involved in a civil trial, but want to keep your confidential information protected, make sure you have a lawyer who can help you.  Darwin Overson is a civil attorney in Utah with experience in personal injury and medical malpractice cases.  If you want to set up a meeting with Darwin, contact his office at (801) 895-3143.


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