Privileged Communications: A Case By Case Approach

Privileged communications are communications which, because of a special relationship, are protected from revelation during the course of litigation. In the past, grants of privilege have been made by reference to professional groups rather than to the content of the particular communication, resulting in inconsistent treatment. Some professionals have secured absolute privileges for their relationships while others have been partially or totally unsuccessful. The inconsistencies are most clearly demonstrated by examining grants of privilege to medical, psychotherapeutic, and social work personnel, although it is not intended that the case by case approach suggested in the proposed statute at the end of this note should be limited to these professions. The proposed statute suggests a procedure for dealing with claims of privilege in a more uniform way by shifting the emphasis away from the profession involved. The content of the communication and the effect of disclosure on the litigation involved and on the party who made the communication would determine the existence of a privilege on a case by case basis.