Practice Tips, Ideas, and Considerations: Privilege Articles from 2021

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Can’t get enough commentary on evidentiary privileges? I am here for you. As you can surmise, I suppose, I read a fair number of judicial decisions applying various evidentiary privileges—but also commentary of professors and other lawyers discussing privilege-related issues. I maintain a resources page identifying other go-to privilege treatises, articles, and databases, but for those curious for a deeper dive into some privilege issues, outlined below is my list of the top privilege articles published in 2021. Enjoy.

Todd W. Smith’s article, “Are You My Lawyer?”: (More) Lessons from Theranos: Attorney–Client Privilege Considerations in the Corporate Context, identifies an all-too-common problem: whether the corporate lawyer represents the entity or the executive. The article is full of good practice tips, and you may access it here. 63 Orange County Lawyer 50 (Oct. 2021).
Nathan M. Crystal authored two short but thought-provoking articles for the South Carolina Lawyer magazine. In Client Threats and the Attorney–Client Privilege, accessible here, Crystal provides recommendations for handling privilege and ethical issues when your client threatens physical harm to judges and others. 32 South Carolina Lawyer 15 (May 2021). And in Inadvertent Production and Waiver of Privilege/Work Product Protection, available here, Crystal discusses a California case on inadvertent production of privileged material and offers lessons for us all. 33 South Carolina Lawyer 16 (July 2021).
This is scary. Are your communications using Alexa, Siri, or any similar “assistants” protected? Lauren Chlouber Howell explores the privacy and privilege issues related to communicating with or through these devices. Alexa Hears with her Little Ears—But Does She Have the Privilege?, 52 St. Mary’s Law Journal 837 (2021). You may access it here.
Ever wonder what happens to a company’s privileged communications after it sells its assets to another entity? Robert S. Reider and Jacob R. Haskins explain the situation in Chancery Court Finds Merger Agreement Preserved Sellers’ Privilege Over Pre-Merger Attorney–Client Communications, 73 Vand. L. Rev. En Banc 11 (2020), available here.
It is an issue I have discussed before: does the attorney–client privilege apply to communications between a company’s lawyer and its former employees? Douglas R. Richmond expands on the topic in The Attorney–Client Privilege and Former Employees, 70 Cath. U. L. Rev. 39 (2021), and you should read it here.
In Recent Case Law Developments Involving the Crime–Fraud Exception: The Attorney–Client Privilege, Filter Team Protocols, and Other Privileges, Gretchen C.F. Shappert and Christopher J. Costantini provide five hypothetical situations and discuss how the crime–fraud exception applies in theory and in practice. They also discuss DOJ filter teams and the use of a court-appointed special master to make those privilege determinations. 69 Dep’t of Justice Journal of Federal Law and Practice 289 (May 2021). Read it here.
A few years ago, I wrote about the Federal Circuit’s recognition of a patent–agent privilege. In Let’s All Get on the Same Page: Equating Patent–Agent Privilege to Attorney–Client Privilege, available here, Alexandra K. Kim identifies this federal decision, laments that the majority of state courts have not addressed the issue, and argues that the patent–agent privilege should be equivalent to the attorney–client privilege “in all venues.” 27 Richmond Journal of Law & Technology 1 (2020).
While I hoped that articles with the phrase “in age of Covid-19” in the title would be moot by now, they aren’t. Melanie L. Cyganowski, Erik B Weinick, and Aisha Khan published a helpful article discussing the increase in virtual communications, the concomitant increase in cyberspace intrusions, and the need for privilege protections when hiring data-breach consultants. Protecting Privilege in Cyberspace: The Age of Covid-19 and Beyond, 93 N.Y. State Bar Journal 44 (Mar/Apr 2021). Read it here.
You may recall that Judge Iian Johnston of the Northern District of Illinois issued a well-written and thorough opinion regarding whether plaintiffs waive the psychotherapist–patient privilege by asserting a “garden-variety” emotional-distress claim. You may read my blog post about it here. Now, Armen H. Merjian explores the topic further in Emotional Distress and the Psychotherapist–Patient Privilege: Establishing a Certain and Principled Implied-Waiver Rule for Civil Rights Litigants, 12 UIC Irvine L. Rev. 221 (2021), which you may read here.
The self-critical analysis privilege, which courts recognize sporadically at best, was the subject of two separate but equally good articles. In Careful Consideration for Applying the Self-Critical Analysis Privilege in the Review of Internal Process Improvement, available here, Jessica Brennan, Mike Zogby, and Tiffany Riffer trace the privilege’s evolution, provide practice tips, and provide a list of each state’s peer-review privileges. 16 In-House Defense Quarterly 15 (Summer 2021). And in Let Them Learn: Recognizing and Codifying A Design-Build Self-Critical Analysis Privilege in Texas, available here, Christian Martinez proposes a statute enacting a self-critical analysis privilege for Texas’s design-build industry. 7 Tex. A&M J. Prop. L. 230 (2021).
What happens to the privilege when your client dies? Well, lawyers John M. Palmeri and Greg S. Hearing discuss a Colorado case answering this question from a privilege and ethical standpoint. ’Til Death Do Us Part: The Attorney–Client Privilege and the Duty of Confidentiality after a Client’s Death, 50 Colorado Lawyer 15 (Mar. 2021). Read it here.
Evidentiary privileges related to communications with a guardian ad litem receive too little attention. Jacqueline M. Valdespino and Laura W. Morgan change that in Guardians Ad Litem: Confidentiality and Privilege, where they focus on confidentiality and privilege issues that may arise between a guardian ad litem and the parties in a custody dispute. 33 J. Am. Acad. Matrim. Law. 517 (2021). Read it here.
A privilege issue that receives scant attention but could have tremendous ramifications in matters like sexual-abuse cases is the clergy-penitent privilege. James Grant Semonin explores this privilege as it relates to states’ mandatory reporting statutes, and urges a national and international uniform solution that protects the privilege while accounting for the free exercise of religion. “For the Forgiveness of Sins”: A Comparative Constitutional Analysis and Defense of the Clergy–Penitent Privilege in the United States and Australia, 47 J. Legis. 156 (2021), available here.
Did you know that New Mexico abolished its spousal communications privilege? Well, it did because the privilege’s purpose—to protect marital harmony—apparently no longer applies in a so-called modern society. Emily Crawford Sheffield provides a nice history of the privilege and argues that courts should maintain the privilege even in light of the “current views of marriage.” Rationalizing a Spousal Confidential Communications Privilege Fit for the Twenty-First Century, 74 Vand. L. Rev. En Banc 187 (2021), available here.
The Sixth Amendment’s Confrontation Clause provides criminal defendants the right to cross-examine an adverse witness. But what yields when that witness refuses to answer a question on attorney–client privilege grounds? Jackson Teague explores this conflict and offers a solution in Two Rights Collide: Determining When Attorney–Client Privilege Should Yield to a Defendant’s Right to Compulsory Process or Confrontation, 58 Am. Crim. L. Rev. 487 (2021). Available here.
Some states recognize a nurse–patient privilege. But should they? Or should other states join? Michael D. Moberly explores this privilege in Can a Nightingale Sing? Assessing the Need for a Nurse–Patient Privilege, 17 J. Health & Biomedical L. 1 (2020). Read it here.