Certain Communications Privileged

1. Law
2. Georgia Code
3. Evidence
4. Privileges
5. Certain Communications Privileged

1. There are certain admissions and communications excluded from evidence on grounds of public policy, including, but not limited to, the following:
   1. Communications between husband and wife;
   2. Communications between attorney and client;
   3. Communications among grand jurors;
   4. Secrets of state;
   5. Communications between psychiatrist and patient;
   6. Communications between licensed psychologist and patient as provided in Code Section 43-39-16;
   7. Communications between a licensed clinical social worker, clinical nurse specialist in psychiatric/mental health, licensed marriage and family therapist, or licensed professional counselor and patient;
   8. Communications between or among any psychiatrist, psychologist, licensed clinical social worker, clinical nurse specialist in psychiatric/mental health, licensed marriage and family therapist, and licensed professional counselor who are rendering psychotherapy or have rendered psychotherapy to a patient, regarding that patient's communications which are otherwise privileged by paragraph (5), (6), or (7) of this subsection; and
   9. Communications between accountant and client as provided by Code Section 43-3-29.
2. As used in this Code section, the term:
   1. "Psychotherapy" means the employment of psychotherapeutic techniques.
   2. "Psychotherapeutic techniques" shall have the same meaning as provided in Code Section 43-10A-3.

(Code 1981, §24-5-501, enacted by Ga. L. 2011, p. 99, § 2/HB 24; Ga. L. 2014, p. 136, § 2-1/HB 291.)

The 2014 amendment, effective July 1, 2014, substituted "Code Section 43-3-29" for "Code Section 43-3-32" in paragraph (a)(9).

Cross references.

- Duty of attorney to maintain confidence of clients, § 15-19-4.

Protection of communications between victim assistance personnel and victims, § 17-17-9.1.

Compelling of spouses to testify in proceedings relating to enforcement of duty of support, § 19-11-69.

Privilege of testimony given before medical peer review organization, § 31-7-133.

Treatment of clinical records, §§ 37-3-166,37-4-125.

Maintenance, confidentiality, and release of clinical records; disclosure of confidential or privileged patient information, § 37-7-166.

Disciplining of official or employee of Department of Offender Rehabilitation for violating confidence of inmate supplying information regarding abuses and wrongdoing in the penal system, § 42-5-36.

Confidentiality of communications between accountant and client, § 43-3-32.

Confidentiality of communications between psychologist and client, § 43-39-16.

Law reviews.

- For article on the expansion of the attorney-client privilege in Georgia, see 17 Ga. St. B.J. 150 (1981). For article, "Inadvertent Disclosure of Privileged Material," see 18 Ga. St. B.J. 166 (1982). For annual survey of legal ethics, see 38 Mercer L. Rev. 269 (1986). For article, "The Attorney-Client Privilege: The Common Law and Georgia's Uncommon Statutes," see 5 Ga. St. U.L. Rev. 27 (1988). For article, "The Defense Attorney's Ethical Response to Ineffective Assistance of Counsel Claims," see 5 Ga. St. B.J. 40 (1999). For article, "The Marital Privileges in Georgia: What You Should Know," see 6 Ga. St. B.J. 8 (2001). For article, "The Absolute Privilege Between Patient and Psychiatrist in Civil Cases," see 6 Ga. St. B.J. 14 (2001). For article, "Lawyers as 'Tattletales': A Challenge to the Broad Application of the Attorney-Client Privilege and Rule 1.6, Confidentiality of Information," see 20 Ga. St. U.L. Rev. 617 (2004). For annual survey of tort laws, see 67 Mercer L. Rev. 237 (2015). For article, "Toward a Parent-Inclusive Attorney-Client Privilege," see 53 Ga. L. Rev. 991 (2019). For note discussing confidential communication privileges in Georgia, see 2 Ga. St. B.J. 356 (1966). For note discussing discovery proceedings available to creditors, see 12 Ga. L. Rev. 814 (1978). For note, "Conflicts of Interest in the Liability Insurance Setting," see 13 Ga. L. Rev. 973 (1979). For note, "Wills and the Attorney-Client Privilege," see 14 Ga. L. Rev. 325 (1980). For note on the Impact of the Zolin Decision on the Crime-Fraud Exception to the Attorney-Client Privilege, see 24 Ga. L. Rev. 1115 (1990). For note, "Role of Jaffee v. Redmond's 'Course of Diagnosis or Treatment' Condition in Preventing Abuse of the Psychotherapist-Patient Privilege," see 35 Ga. L. Rev. 345 (2000). For note and comment, "Hope for the Best and Prepare for the Worst: The Capital Defender's Guide to Reciprocal Discovery in the Sentencing Phase of Georgia Death Penalty Trials," see 23 Ga. St. U.L. Rev. 995 (2007). For note, "Mandatory Child Abuse Reporting Laws in Georgia: Strengthening Protection for Georgia's Children," see 31 Ga. St. U.L. Rev. 643 (2015). For comment, "The Government's Privilege to Withhold the Identity of Informers, as Applied to Decoys," see 20 Ga. B.J. 562 (1958). For comment criticizing exclusion from attorney-client privilege of fact and terms of employment in In re Wasserman, 198 F. Supp. 564 (D.D.C. 1961), see 13 Mercer L. Rev. 434 (1962). For comment on Massey v. State, 226 Ga. 703, 177 S.E.2d 79 (1970), cert. denied, 401 U.S. 964, 91 S. Ct. 984, 28 L. Ed. 2d 248 (1971), see 21 J. of Pub. L. 251 (1972). For comment, "Privileged Communications Between Psychiatrist and Patient in Georgia - Termination of the Privilege Upon Death of the Patient," see 9 Ga. St. B.J. 550 (1973). For comment, "The Psychotherapist-Client Testimonial Privilege: Defining the Professional Involved," see 34 Emory L.J. 777 (1985). For comment, "Mandatory Child Abuse Reporting Laws in Georgia: Strengthening Protection for Georgia's Children," see 31 Ga. St. U.L. Rev. 643 (2015).

JUDICIAL DECISIONS

ANALYSIS

• General Consideration
• Communications Between Husband and Wife
• Communications Between Attorney and Client
• Communications with Grand Jurors
• Secrets of State
• Communications Between Psychiatrist and Patient
• Other Mental Health Professionals
• Communications between Physician and Patient

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1873, § 3854, former Code 1882, § 3854, former Ga. L. 1887, p. 30, § 1, former Civil Code 1895, §§ 5198, 5271, former Penal Code 1895, § 1011, former Civil Code 1910, §§ 4544, 4554, 5785, 5786, 5860, 5877, former Penal Code 1910, § 1037, former Code 1933, §§ 38-418, 38-419, 38-1102, 38-1205, 38-1605, 38-1711, and former O.C.G.A. §§ 24-9-21,24-9-24,24-9-25, and24-9-27 are included in the annotations for this Code section.

Purpose of privilege.

- Attorney-client privilege is for the protection and benefit of the client, not of the attorney, so that the client's disclosures may not be used against the client in controversies with third persons, and it is designed to secure the client's confidence in the secrecy of the client's communication, and to promote greater freedom of consultation between clients and their legal advisers, and its object is to secure freedom in communication between an attorney and the client in order that the attorney may act with full understanding of the matters in which the attorney is employed. Marriott Corp. v. American Academy of Psychotherapists, Inc., 157 Ga. App. 497, 277 S.E.2d 785 (1981) (decided under former Code 1933, § 38-419).

Privilege is absolute, and if a matter is privileged it is not discoverable. Atlantic Coast Line R.R. v. Daugherty, 111 Ga. App. 144, 141 S.E.2d 112 (1965) (decided under former Code 1933, § 38-418).

Protected communications.

- Georgia law has an exceedingly strict view as to what are privileged communications; not only "communications" but "admissions" are privileged; what is protected is not merely words, but "disclosures made in confidence." Mrozinski v. Pogue, 205 Ga. App. 731, 423 S.E.2d 405, cert. denied, 205 Ga. App. 901, 423 S.E.2d 405 (1992) (decided under former O.C.G.A. § 24-9-21).

Who may invoke privilege.

- Court did not err in allowing the impeachment of a witness through the testimony of the witness's attorney, nor was defense counsel ineffective in failing to challenge the state's calling the attorney to testify; the rules of former O.C.G.A. § 24-9-24 may not be invoked by strangers to the attorney-client relationship. Womack v. State, 260 Ga. 305, 393 S.E.2d 232 (1990) (decided under former O.C.G.A. § 24-9-24).

Rule that communications between an attorney and a client are privileged, and that the attorney is an incompetent witness to testify thereto, cannot be invoked for the benefit of other persons who are strangers to such relationship. Findley v. Davis, 202 Ga. App. 332, 414 S.E.2d 317 (1991) (decided under former O.C.G.A. § 24-9-24).

Privileged communications admissible for limited purpose.

- Scope of exclusion of former Code 1933, § 38-413 was the content of the communications, whereas documents sought to be admitted for the limited purpose of comparison of the handwritings were admissible as evidence, as was authorized by former Code 1933, §§ 38-708 and 38-709. Guy v. State, 138 Ga. App. 11, 225 S.E.2d 492 (1976) (decided under former Code 1933, § 38-418).

Separating privileged from nonprivileged information.

- When any document sought to be produced contains a mixture of privileged and nonprivileged communication or information, ample remedy is provided to delete privileged matter, and this also would be within the inherent power of the court. Cranford v. Cranford, 120 Ga. App. 470, 170 S.E.2d 844 (1969) (decided under former Code 1933, § 38-418).

Former statute did not simply proscribe the channel through which the evidence reached the jury, but made the evidence itself inadmissible. Georgia Int'l Life Ins. Co. v. Boney, 139 Ga. App. 575, 228 S.E.2d 731 (1976) (decided under former Code 1933, § 38-418).

Waiver of privilege.

- Confidential communication, whether orally made or by letter, is privileged, but such privilege may be waived. McCord v. McCord, 140 Ga. 170, 78 S.E. 833 (1913) (decided under former Civil Code 1910, § 5785).

No distinction between advice on specific cases and day-to-day business.

- Attorney-client privilege statutes make no distinction between legal advice given to a corporate client in regard to specific cases pending and legal advice concerning day-to-day business matters. Southern Guar. Ins. Co. v. Ash, 192 Ga. App. 24, 383 S.E.2d 579 (1989) (decided under former O.C.G.A. § 24-9-27).

Disclosure by newspaper reporter.

- Newspaper reporter cannot claim an exemption from answering material questions on the ground that the reporter promised not to divulge the name of the informant. Plunkett v. Hamilton, 136 Ga. 72, 70 S.E. 781, 35 L.R.A. (n. s.) 583, 1972B Ann. Cas. 1259 (1911) (decided under former Civil Code 1910, §§ 4544, 4554, 5877).

Admissions as to property value were not advice.

- Admissions and other evidence in requested documents as to the value of the property in question were not the advice of a professional adviser and could not be considered part of a privileged consultation simply because that evidence was included in a loan application. Clayton County Bd. of Tax Assessors v. Lake Spivey Golf Club, Inc., 207 Ga. App. 693, 428 S.E.2d 687 (1993) (decided under former O.C.G.A. § 24-9-27).

Communications Between Husband and Wife

1. In General

General description of privilege between spouses.

- Meaning of this provision simply is that neither of the married pair shall be permitted to testify as a witness concerning such communications or to furnish to another, for the purpose of being introduced in evidence, writings of any kind received under the seal of confidence during coverture. Knight v. State, 114 Ga. 48, 39 S.E. 928, 88 Am. St. R. 17 (1901) (decided under former Civil Code 1895, § 5198); Lowry v. Lowry, 170 Ga. 349, 153 S.E. 11 (1930); Gorman v. State, 183 Ga. 307, 188 S.E. 455 (1936) (decided under former Civil Code 1910, § 5785); R. & J. Dick Co. v. Bass, 295 F. Supp. 758 (N.D. Ga. 1968); Georgia Int'l Life Ins. Co. v. Boney, 139 Ga. App. 575, 228 S.E.2d 731 (1976) (decided under former Code 1933, § 38-418);(decided under former Code 1933, § 38-418);(decided under former Code 1933, § 38-418).

Rule modified by former statute.

- Former Code 1933, § 38-1604, which provided that a spouse shall be competent, although not compellable, to testify against the other spouse, modified former Code 1933, § 38-418. Hubbard v. State, 145 Ga. App. 714, 244 S.E.2d 639 (1978) (decided under former Code 1933, § 38-418); Chancey v. State, 256 Ga. 415, 349 S.E.2d 717 (1986); 481 U.S. 1029, 107 S. Ct. 1954, 95 L. Ed. 2d 527 (1987), cert. denied,(decided under former O.C.G.A. § 24-9-21).

"Confidential communications" between spouses defined.

- "Confidential communications" are those when one spouse derives knowledge from the other by virtue of the special confidence of the husband-wife relationship. Wilcox v. State, 250 Ga. 745, 301 S.E.2d 251 (1983), aff'd in part and rev'd in part, 813 F.2d 1140 (11th Cir.), cert. denied, 484 U.S. 925, 108 S. Ct. 287, 98 L. Ed. 2d 247 (1987) (decided under former O.C.G.A. § 24-9-21).

Every spoken word between a husband and wife is not confidential; if the communication is an impersonal one not made in reliance on the marital relationship, the communication is not confidential, and no policy reason bars its admissibility. Wilcox v. State, 250 Ga. 745, 301 S.E.2d 251 (1983), aff'd in part and rev'd in part, 813 F.2d 1140 (11th Cir.), cert. denied, 484 U.S. 925, 108 S. Ct. 287, 98 L. Ed. 2d 247 (1987) (decided under former O.C.G.A. § 24-9-21).

Nonprivileged communications generally.

- Nonprivileged communications relate to husband-wife conversations through third parties or in the presence of third parties, when the communication constitutes a ground of action by one spouse against the other, or when the conversation was of an impersonal nature spoken or performed without the special confidence one spouse reposes in the other in the marital relation. Georgia Int'l Life Ins. Co. v. Boney, 139 Ga. App. 575, 228 S.E.2d 731 (1976) (decided under former Code 1933, § 38-418).

Privilege belongs to communicator and is perpetual.

- Since the privilege belongs to the communicator, the privilege cannot be waived by the administrator nor by the surviving spouse since communications between husband and wife survive death and are protected forever. Georgia Int'l Life Ins. Co. v. Boney, 139 Ga. App. 575, 228 S.E.2d 731 (1976) (decided under former Code 1933, § 38-418).

Waiver of privilege.

- Spouse may waive his or her privilege by voluntarily taking the stand and testifying. Duncan v. State, 232 Ga. App. 157, 500 S.E.2d 603 (1998) (decided under former O.C.G.A. § 24-9-21).

Trial court did not err in allowing a probationer's spouse to testify without informing the spouse of the marital privilege pursuant to former O.C.G.A. §§ 24-9-21 and24-9-23 (see now O.C.G.A. §§ 24-5-501 and24-5-503) because the spouse was aware of the privilege but never asserted the privilege to the trial court, and it was assumed that the spouse waived the right not to testify; the spouse was informed by defense counsel of the spouse's rights under the marital privilege, and the spouse did not assert the privilege even after defense counsel voiced objections to the testimony in the spouse's presence. Geter v. State, 300 Ga. App. 396, 685 S.E.2d 342 (2009) (decided under former O.C.G.A. § 24-9-21).

Bank statement addressed to wife did not constitute "communication" between husband and wife. Leventhal v. Seiter, 208 Ga. App. 158, 430 S.E.2d 378 (1993) (decided under former O.C.G.A. § 24-9-21).

Husband and wife communication must be confidential to be privileged.

- Paragraph (1) of former O.C.G.A. § 24-9-21 provided that communications between a husband and wife were inadmissible on grounds of public policy; however, for this exclusion to apply, the communications must be confidential. Wilcox v. State, 250 Ga. 745, 301 S.E.2d 251 (1983), aff'd in part and rev'd in part, 813 F.2d 1140 (11th Cir.), cert. denied, 484 U.S. 925, 108 S. Ct. 287, 98 L. Ed. 2d 247 (1987) (decided under former O.C.G.A. § 24-9-21).

Indifference of one spouse to presence of the other.

- When the act is done solely for the sake of doing the act, the indications being that the husband is indifferent to the presence of the wife, there is no communication. In such cases the privilege should not be allowed to deprive the court of the evidence. Georgia Int'l Life Ins. Co. v. Boney, 139 Ga. App. 575, 228 S.E.2d 731 (1976) (decided under former Code 1933, § 38-418).

No evidence establishing element of confidentiality.

- Though the rule establishes the wife as an incompetent witness for or against the husband in regard to any information derived from his confidence in her, when there is nothing to indicate that the knowledge was derived from any special confidence which one spouse reposed in the other, or that there was any occasion for the one spouse to make to the other any confidential communication concerning the matter, the knowledge gained is not privileged. Georgia Int'l Life Ins. Co. v. Boney, 139 Ga. App. 575, 228 S.E.2d 731 (1976) (decided under former Code 1933, § 38-418).

Testimony as to injury of husband.

- Wife of the injured party is not incompetent to testify as to the nature of the injury received by him and its effect upon his physical condition when there is nothing to indicate that her knowledge on the subject was gained because of any confidence which he reposed in her as his wife. Macon Ry. & Light Co. v. Mason, 123 Ga. 773, 51 S.E. 569 (1905) (decided under former Civil Code 1895, § 5198).

Wife's statements in a summary judgment affidavit as to the reasons her husband did not want to buy property were protected by the marital communications privilege. Century 21 Pinetree Properties, Inc. v. Cason, 220 Ga. App. 355, 469 S.E.2d 458 (1996) (decided under former O.C.G.A. § 24-9-21).

Rule was applied to exclude evidence in the following cases.

- See Keaton v. McGwier, 24 Ga. 217 (1858) (testimony that might discredit spouse's testimony) (decided under former Civil Code 1910, § 5785); McKie v. State, 165 Ga. 210, 140 S.E. 625 (1927); Gorman v. State, 183 Ga. 307, 188 S.E. 455 (1936) (letters written by wife to husband) (decided under former Civil Code 1910, § 5785); Georgia Int'l Life Ins. Co. v. Boney, 139 Ga. App. 575, 228 S.E.2d 731 (1976) (facts that might discredit spouse's testimony) (decided under former Code 1933, § 38-418);(writing from one spouse to another concerning domestic relationships) (decided under former Code 1933, § 38-418).

No common law marriage found.

- When there was evidence to support the trial court's finding that the defendant and the witness did not have a common law marriage, there was no error in allowing the witness to testify. Abrams v. State, 272 Ga. 63, 525 S.E.2d 86 (2000), overruled on other grounds, Baugh v. State, 276 Ga. 736, 585 S.E.2d 616 (2003) (decided under former O.C.G.A. § 24-9-21).

No valid marriage proven.

- Jailhouse conversations between the defendant and a boyfriend or fiance were properly admitted despite a claim of marital privilege because there was sufficient evidence to support the trial court's implicit finding that no legal marriage existed; it was defendant's burden to prove a valid marriage, and the defendant failed to do so. Wiggins v. State, 338 Ga. App. 273, 787 S.E.2d 357 (2016).

Time of objection to testimony between spouses.

- Objection to testimony on the ground that the testimony was in the nature of confidential communications between husband and wife, and therefore to be excluded under the provisions of the former statute, came too late when urged for the first time in the brief of counsel for the plaintiff in error in the reviewing court. Holloway v. Hoard, 140 Ga. 380, 78 S.E. 928 (1913) (decided under former Civil Code 1910, § 5785); Maxwell v. Maxwell, 177 Ga. 483, 170 S.E. 362 (1933);(decided under former Civil Code 1910, § 5785).

E-mail communication not subject to marital privilege.

- An e-mail from the defendant to the defendant's husband was not evidence given under compulsion by the defendant's spouse and so was not subject to the marital privilege under former O.C.G.A. § 24-9-23(b) (see now O.C.G.A. § 24-5-503) in a case charging the defendant with malice murder and related offenses in connection with the death of the defendant's 11-year-old step-daughter. Reaves v. State, 284 Ga. 236, 664 S.E.2d 207 (2008) (decided under former O.C.G.A. § 24-9-21).

2. Third Parties

No protection for financial documents prepared by third party.

- Although communications between a husband and a wife are confidential and privileged, such protections do not apply to financial documents either prepared or seen by third parties; a trial court did not err in granting a motion to compel an employee and the husband to produce financial documents such as checks, account statements, and tax returns. Dempsey v. Kaminski Jewelry, Inc., 278 Ga. App. 814, 630 S.E.2d 77 (2006) (decided under former O.C.G.A. § 24-9-21).

Third person overhearing communication between married couple.

- Former statute was not intended to forbid one who overhears a conversation between husband and wife from testifying with respect to the conversation. If they are unsuccessful in keeping secret that which they intend each other shall so regard, the mere fact that they did so intend will not render incompetent the testimony of an outsider. Knight v. State, 114 Ga. 48, 39 S.E. 928, 88 Am. St. R. 17 (1901) (decided under former Civil Code 1895, § 5198). Ford v. State, 124 Ga. 793, 53 S.E. 335 (1906) See also Cocroft v. Cocroft, 158 Ga. 714, 124 S.E. 346 (1924) (decided under former Civil Code 1895, § 5198); Sims v. State, 36 Ga. App. 266, 136 S.E. 460 (1927);(decided under former Civil Code 1910, § 5785);(decided under former Civil Code 1910, § 5785).

Presence of third party.

- Wife can testify as to what was said by the husband to some other person in the presence of the wife. R. & J. Dick Co. v. Bass, 295 F. Supp. 758 (N.D. Ga. 1968) (decided under former Code 1933, § 38-418).

Testimony of third party as to communications.

- Former O.C.G.A. § 24-9-21 did not prohibit testimony about communications between spouses by someone who overheard the communication. Helton v. State, 217 Ga. App. 691, 458 S.E.2d 872 (1995) (decided under former O.C.G.A. § 24-9-21).

3. Criminal Cases

Calling wife as defense witness did not waive husband's privilege.

- Defendant was entitled to have the testimony of his wife excluded based upon his marital privilege as provided by former O.C.G.A. § 24-9-21 as proper objection was made at trial. Although under certain circumstances the marital privilege may be waived by the communicator, the act of calling his wife as a defense witness did not, in and of itself, waive his privilege regarding protected confidential communications as the direct examination did not in any way touch on the privileged matters or open the door thereto. White v. State, 211 Ga. App. 694, 440 S.E.2d 68 (1994) (decided under former O.C.G.A. § 24-9-21).

Testimony as to child molestation by ex-spouse.

- With regard to a defendant's conviction on child molestation charges, the defendant's trial counsel was not deficient in failing to object to certain testimony of the defendant's ex-wife, the mother of the victim, concerning a prior bad act on the ground that the testimony violated the marital privilege, because the defendant was not on trial for the prior act; therefore, the ex-wife was competent, although not compellable, to testify concerning the prior act, and thus since the ex-wife did not invoke the privilege and was able to waive the privilege by voluntarily taking the stand and testifying, trial counsel was not ineffective for failing to object to the testimony of the ex-wife on the basis of marital privilege. Nichols v. State, 288 Ga. App. 118, 653 S.E.2d 300 (2007) (decided under former O.C.G.A. § 24-9-21).

No privilege for mere acts or gestures.

- Husband, who took a container of crack cocaine from an evidence file cabinet in the district attorney's office while his wife was present in the room, could not invoke the husband-wife privilege, when there was no clear proof that his acts or gestures were as much a communication as would have been his words to her describing the act. Brown v. State, 199 Ga. App. 188, 404 S.E.2d 469, cert. denied, 199 Ga. App. 905, 404 S.E.2d 469 (1991) (decided under former O.C.G.A. § 24-9-21).

Announcement of victim's name as witness.

- Knowing that the victim was going to invoke the marital privilege, defendant was not entitled to a mistrial because the defendant did not timely object to the announcement of the defendant's wife's name as a witness; in any event, the mere announcement of the victim's name, without more, did not constitute the creation by the state of an "unwarranted negative inference" against the defendant. Carter v. State, 275 Ga. App. 483, 621 S.E.2d 503 (2005) (decided under former O.C.G.A. § 24-9-21).

Communications Between Attorney and Client

1. In General

Purpose of privilege.

- Attorney-client privilege is for the protection and benefit of the client, not of the attorney, so that the client's disclosures may not be used against the client in controversies with third persons, and it is designed to secure the client's confidence in the secrecy of the client's communication, and to promote greater freedom of consultation between clients and their legal advisers, and its object is to secure freedom in communication between attorney and client in order that the former may act with full understanding of the matters in which the attorney is employed. Marriott Corp. v. American Academy of Psychotherapists, Inc., 157 Ga. App. 497, 277 S.E.2d 785 (1981) (decided under former O.C.G.A. § 24-9-21).

Privilege is absolute, and if a matter is privileged it is not discoverable. Atlantic Coast Line R.R. v. Daugherty, 111 Ga. App. 144, 141 S.E.2d 112 (1965) (decided under former Code 1933, § 38-419).

A narrow construction of the attorney-client privilege, inasmuch as the exercise of the privilege results in the exclusion of evidence, comports with the view that the ascertainment of as many facts as possible leads to the truth, the discovery of which is "the object of all legal investigation." Tenet Healthcare Corp. v. Louisiana Forum Corp., 273 Ga. 206, 538 S.E.2d 441 (2000) (decided under former O.C.G.A. § 24-9-21).

Court should confine the attorney-client privilege to its narrowest permissible limits under the former statute of its creation in order to permit liberal discovery. Atlantic Coast Line R.R. v. Daugherty, 111 Ga. App. 144, 141 S.E.2d 112 (1965) (decided under former Code 1933, §§ 38-418 and 38-419).

Rule modified by former statute. Chancey v. State, 256 Ga. 415, 349 S.E.2d 717 (1986), cert. denied, 481 U.S. 1029, 107 S. Ct. 1954, 95 L. Ed. 2d 527 (1987) (decided under former O.C.G.A. § 24-9-21).

Mere fact of employment between attorney and client is not protected from disclosure. Cranford v. Cranford, 120 Ga. App. 470, 170 S.E.2d 844 (1969) (decided under former Code 1933, § 38-418).

Former statute not restrictive.

- It was not the intention of the former statute to restrict the admission of evidence, but to enlarge the rule for the admission of evidence. Strickland v. Wynn, 51 Ga. 600 (1874) (decided under former Code 1873, § 3854).

Rule set forth in the former statute cannot be invoked by strangers to relationship. O'Brien v. Spalding, 102 Ga. 490, 31 S.E. 100, 66 Am. St. R. 202 (1897) (decided under former Civil Code 1895, § 5271); Neal v. Dover, 217 Ga. 545, 123 S.E.2d 760 (1962); Cleary v. Burlington Indus., Inc., 193 Ga. App. 81, 387 S.E.2d 36 (1989) (decided under former Code 1933, § 38-1605);(decided under former O.C.G.A. § 24-9-25).

Communications not intended to be confidential.

- Communications made by a client to an attorney for the purpose of being imparted by the attorney to others do not fall within the inhibition of the former statute. Fowler v. Sheridan, 157 Ga. 271, 121 S.E. 308 (1924) (decided under former Civil Code 1910, § 5860).

Under former O.C.G.A. § 24-9-25, in general, an attorney may not be compelled to testify against a client to any matter or thing, the knowledge of which the attorney may have acquired by virtue of the individual's employment as an attorney; this rule, however, does not prohibit an attorney from testifying about matters that occurred in the presence of the opposing party because such communications were not intended to be confidential. Martinez v. Hous. Auth., 264 Ga. App. 282, 590 S.E.2d 245 (2003) (decided under former O.C.G.A. § 24-9-25).

Client's request that identity be kept confidential.

- Because a client's identity is not covered by the attorney-client privilege, the trial court correctly declined to permit an attorney to use the privilege to justify the attorney's refusal to reveal the identity of a client who requested that the client's identity be kept confidential. Tenet Healthcare Corp. v. Louisiana Forum Corp., 273 Ga. 206, 538 S.E.2d 441 (2000) (decided under former O.C.G.A. §§ 24-9-21,24-9-24, and24-9-25).

Privilege waived when client files legal malpractice claim.

- Appellate court should have affirmed the trial court's ruling that the clients were not entitled to a protective order based on attorney-client privilege because when the clients sued their former attorneys for legal malpractice, the implied waiver of the attorney-client privilege extended to the client's communications with other attorneys who represented the client with respect to the same underlying transaction or litigation. Hill, Kertscher & Wharton, LLP v. Moody, 308 Ga. 74, 839 S.E.2d 535 (2020).

Inadvertent disclosure to defense counsel of a letter from plaintiff to plaintiff's attorneys did not waive the attorney-client privilege. Lazar v. Mauney, 192 F.R.D. 324 (N.D. Ga. 2000) (decided under former O.C.G.A. § 24-9-21).

No privilege in joint representation.

- If two or more persons jointly consult or retain an attorney the communications which either makes to the attorney are not privileged in the event of any subsequent litigation between the parties. In such situations it is considered that the attorney does not have an attorney-client relationship with either of the joint parties. Peterson v. Baumwell, 202 Ga. App. 283, 414 S.E.2d 278 (1991), cert. denied, 202 Ga. App. 907, 414 S.E.2d 278 (1992) (decided under former O.C.G.A. §§ 24-9-24 and24-9-25).

If, by consenting to joint representation, the parties waived the attorney-client privilege as to communications affecting the interest of the other, then such communications should be discoverable by each one of the parties against the other. The fact that there is present in this litigation a third party who will gain access to these communications does not change the fact of the initial waiver. Peterson v. Baumwell, 202 Ga. App. 283, 414 S.E.2d 278 (1991), cert. denied, 202 Ga. App. 907, 414 S.E.2d 278 (1992) (decided under former O.C.G.A. §§ 24-9-24 and24-9-25).

Terms of attorney's contract do not come within the statutory privilege. Bank of Lumpkin v. Farmers State Bank, 161 Ga. 801, 132 S.E. 221 (1926) (decided under former Civil Code 1910, § 5785).

Facts attending execution of contract.

- These provisions had no application to competency of an attorney as a witness with respect to essential facts attending execution of a contract in the preparation and as to the attestation of which the attorney rendered professional service. Jones v. Smith, 206 Ga. 162, 56 S.E.2d 462 (1949) (decided under former Code 1933, § 38-418); Smith v. Smith, 222 Ga. 694, 152 S.E.2d 560 (1966);(decided under former Code 1933, § 38-418).

Relation of attorney and client does not exist between prosecutor and prosecuting witness for the state and, therefore, communications had between such witness and the prosecutor are not confidential, and on the trial of the defendant are admissible in evidence to prove contradictory statements. Vernon v. State, 49 Ga. App. 187, 174 S.E. 548 (1934) (decided under former Code 1933, § 38-418).

Penalties for breaching confidence.

- There are no statutory criminal penalties visited upon an attorney who in violation of the attorney's ethical relation to the attorney's client divulges a confidential communication. Cranford v. Cranford, 120 Ga. App. 470, 170 S.E.2d 844 (1969) (decided under former Code 1933, § 38-418).

Disqualification without consideration of former statute error.

- Trial court order disqualifying an attorney from acting as counsel for a party on the ground that the party was a necessary witness at trial was overruled since the trial court did not consider the applicability of former O.C.G.A. § 24-9-25 in the context of the evidence adduced at the disqualification hearing. Southern Shipping Co. v. Oceans Int'l Corp., 174 Ga. App. 91, 329 S.E.2d 263 (1985) (decided under former O.C.G.A. § 24-9-25).

Attorney may not be called to testify as to client's competency.

- It is not legally permissible for the state to call defendant's counsel as a witness for the purpose of extracting facts and counsel's opinion as to the client's competency, which is gained from the attorney's participation in the attorney-client relationship with the defendant. Almond v. State, 180 Ga. App. 475, 349 S.E.2d 482 (1986) (decided under former O.C.G.A. § 24-9-25).

2. When Privilege Attaches

Prior statements.

- Mere fact that at some later time statements are transmitted to an attorney for use in preparing a defense to litigation that may have arisen out of the occurrence to which the statements referred does not render the statements communications to the attorney or bring the statements within the privileged category. Atlantic Coast Line R.R. v. Daugherty, 111 Ga. App. 144, 141 S.E.2d 112 (1965) (decided under former Code 1933, § 38-419).

Acquisition of knowledge during and by reason of relationship.

- To make an attorney incompetent to testify to a fact, knowledge of the fact must have been acquired by the attorney both during the relationship of client and attorney and by reason of that relationship. Parker v. Wellons, 43 Ga. App. 721, 160 S.E. 109 (1931) (decided under former Civil Code 1910, § 5860).

Matters communicated to attorney by source other than client.

- Attorney-client privilege does not encompass matters of which the attorney has or gains knowledge through some source other than the communications of the attorney's client in preparation for litigation. If the attorney has knowledge from another source, testimony concerning that is proper. Buffington v. McClelland, 130 Ga. App. 460, 203 S.E.2d 575 (1973) (decided under former Code 1933, § 38-418).

Offspring acquired no attorney-client privilege resulting from deceased parent's relationship.

- Trial court did not err in admitting testimony of an attorney who represented the testator as the daughter could not invoke the attorney-client privilege to prevent that testimony since the daughter was a stranger to that attorney-client relationship. White v. Regions Bank, 275 Ga. 38, 561 S.E.2d 806 (2002) (decided under former O.C.G.A. § 24-9-25).

Placing material with attorney does not invoke privilege.

- One cannot render privileged that which is otherwise not privileged merely by placing it in the hands of an attorney. Atlantic Coast Line R.R. v. Daugherty, 111 Ga. App. 144, 141 S.E.2d 112 (1965) (decided under former Code 1933, § 38-418).

When an attorney speaks with a defendant as a family friend, not as a legal advisor, and tells the defendant that the attorney does not represent the defendant and to contact an attorney if the defendant needs legal advice, no attorney-client relationship exists. Spence v. State, 252 Ga. 338, 313 S.E.2d 475 (1984) (decided under former O.C.G.A. § 24-9-24).

3. By Reason of Anticipated Employment

Former statute created no "privilege as attorney" giving an attorney at law the right to refuse to answer pertinent questions asked for the purpose of proving that the attorney was not employed by a designated person to institute a given proceeding. Alger v. Turner, 105 Ga. 178, 31 S.E. 423 (1898) (decided under former Civil Code 1895, § 5271).

Objection should state unqualifiedly that the attorney represented the party to whom the testimony related. Brannan v. Mobley, 169 Ga. 243, 150 S.E. 76 (1929) (decided under former Civil Code 1910, § 5860).

Communication in anticipation of employment.

- Attorney was neither compellable nor competent to testify to any matter or thing, knowledge of which the attorney may have acquired by reason of the anticipated employment of the person as attorney by one seeking the attorney's professional aid and advice, whether, as a matter of fact, the attorney so consulted was or was not afterwards employed to undertake the service concerning which the confidential communication sought to be introduced in evidence was made. Atlanta Coca-Cola Bottling Co. v. Goss, 50 Ga. App. 637, 179 S.E. 420 (1935) (decided under former Code 1933, § 38-419).

Testimony of an attorney to the effect that on a visit to the mother of the defendant, made in anticipation of employment as attorney for the defendant, the mother delivered a pistol and watch to the witness, with instructions to deliver them to a named police officer, was not inadmissible in evidence upon the ground that it was confidential communication between an attorney and a client. Riley v. State, 180 Ga. 869, 181 S.E. 154 (1935) (decided under former Code 1933, § 38-419).

Rule applied regardless of eventual employment.

- Confidential communications, made to an attorney not actually employed at the time, but which were made in anticipation of employing the attorney, come within the rule protecting privileged communications, and this was true whether as a matter of fact the attorney so consulted was or was not afterwards employed to undertake the services concerning which the confidential communications ought to be introduced in evidence were made. Young v. State, 65 Ga. 525 (1880) (decided under former Code 1873, § 3854); Peek & Sullivan v. Boone, 90 Ga. 767, 17 S.E. 66 (1893); Haywood v. State, 114 Ga. 111, 39 S.E. 948 (1901) (decided under former Ga. L. 1887, p. 30, § 1).See also (decided under former Civil Code 1895, § 5271).

Termination of relationship.

- Law had no application as to communication made by a former client to the attorney after the relationship of attorney and client ceased to exist. Philman v. Marshall, 103 Ga. 82, 29 S.E. 598 (1897) (decided under former Civil Code 1895, § 5271).

Privilege continues after client's death. Smith v. Smith, 222 Ga. 694, 152 S.E.2d 560 (1966) (decided under former Code 1933, § 38-1605).

While a civil action arising out of the patient's suicide may be authorized under Georgia law and application of the protections afforded psychiatrist-patient communications by O.C.G.A. § 24-5-501(a) may pose a hardship to the patient's parents in the investigation of potential claims against the doctor, neither of those factors authorized the trial court to require the production of privileged communications contrary to § 24-5-501(a). Cooksey v. Landry, 295 Ga. 430, 761 S.E.2d 61 (2014).

4. Facts in Connection with Employment

Mere fact of employment between an attorney and a client was not protected from disclosure. Cranford v. Cranford, 120 Ga. App. 470, 170 S.E.2d 844 (1969) (decided under former Code 1933, § 38-419).

An attorney may testify with respect to essential facts attending execution of a contract in preparation and as to attestation of which the attorney rendered professional service. Jones v. Smith, 206 Ga. 162, 56 S.E.2d 462 (1949) (decided under former Code 1933, § 38-419).

Attorney at law who witnesses a contract as a subscribing witness, and who was employed to prepare the contract, is competent, in a trial involving the mental capacity of the maker thereof to execute a valid contract, to testify as a witness concerning the maker's mental condition, and as to facts showing the latter's knowledge or ignorance of the contents of the paper, and as to all other pertinent facts attending signing and attestation of the instrument. Smith v. Smith, 222 Ga. 694, 152 S.E.2d 560 (1966) (decided under former Code 1933, § 38-419).

Client accusing attorney of failure to inform.

- When there was no claim of misconduct or incompetent representation, a habeas corpus petitioner cannot claim that the petitioner was not informed of the sentence consequences of a guilty plea, and then invoke the attorney-client privilege to prevent the attorney from testifying. Bailey v. Baker, 232 Ga. 84, 205 S.E.2d 278 (1974) (decided under former Code 1933, § 38-419).

Client accusing attorney of previous misconduct.

- When accused in statement to jury charged that the attorney who represented the accused in a previous prosecution for murder entered a plea of guilty over the accused's protests of innocence, the accused waived the accused's right to have their transactions considered as privileged, and the attorney was competent to give testimony to show that the attorney did not act basely in the transaction as the attorney's one-time client claimed. Hyde v. State, 70 Ga. App. 823, 29 S.E.2d 820 (1944) (decided under former Code 1933, § 38-419).

5. Communications

Rule has broad scope, and is not confined merely to communicated matters, but extends to items as to which the attorney has acquired the attorney's knowledge by the attorney's own observation when this observation was the result of the attorney's professional employment. Taylor v. Taylor, 179 Ga. 691, 177 S.E. 582 (1934) (decided under former Code 1933, § 38-419).

Rule is not confined to matters relating to litigation, but extends to all cases when the attorney is consulted by a client in the line of the attorney's profession. Taylor v. Taylor, 179 Ga. 691, 177 S.E. 582 (1934) (decided under former Code 1933, § 38-419).

Conversations not with attorney.

- When it appears from a transcript that none of the conversations about which a witness was questioned was had with an attorney, the attorney-client privilege was not applicable. Bridges v. State, 242 Ga. 251, 248 S.E.2d 647 (1978) (decided under former Code 1933, § 38-419).

Communications made for purpose of being imparted by the attorney to others are not privileged. Riley v. State, 180 Ga. 869, 181 S.E. 154 (1935) (decided under former Code 1933, § 38-419).

Placing material with attorney invokes no privilege.

- It is axiomatic that one cannot render privileged that which is otherwise not privileged merely by placing it in the hands of one's attorney. Atlantic Coast Line R.R. v. Daugherty, 111 Ga. App. 144, 141 S.E.2d 112 (1965).

Photographs not "communications."

- In a prosecution for sexual offenses, photographs given by the defendant to his attorney depicting sexual activity between defendant's wife and a 13-year-old girl were not "communications," but were admissible as evidence of a similar crime. Johnson v. State, 222 Ga. App. 722, 475 S.E.2d 918 (1996) (decided under former O.C.G.A. § 24-9-24).

6. Work Product

Work product rule.

- Under the work product rule, the attorney-client privilege protects correspondence between defendant's claims examiners and counsel, letters between inside and outside counsel, correspondence between defendant's employees and insurance carrier, and handwritten notes by inside counsel; but not plaintiff's medical records, statements by plaintiff, or correspondence between defendant's agent and third parties. Shipes v. BIC Corp., 154 F.R.D. 301 (M.D. Ga. 1994) (decided under former O.C.G.A. § 24-9-24).

Work product rule.

- Test to determine whether a document constitutes work product is whether it was prepared by the party or the party's representative because of the prospect of litigation. Shipes v. BIC Corp., 154 F.R.D. 301 (M.D. Ga. 1994) (decided under former O.C.G.A. § 24-9-24).

Privilege extends to attorney's work product.

- Once the attorney-client relationship obtains as to a particular matter, the attorney may have investigations made or statements taken under the attorney's direct instruction and supervision, and these may be deemed a part of what the attorney has done, and thus a part of the attorney's work product, which may not be discovered absent a showing of necessity. Atlantic Coast Line R.R. v. Daugherty, 111 Ga. App. 144, 141 S.E.2d 112 (1965) (decided under former Code 1933, § 38-418).

Mixture of privileged and nonprivileged matter.

- When any document sought to be produced contains a mixture of privileged and nonprivileged communication or information, ample remedy is provided to delete privileged matter, and this also would be within the inherent power of the court. Cranford v. Cranford, 120 Ga. App. 470, 170 S.E.2d 844 (1969) (decided under former Code 1933, § 38-419).

Information obtained for preparing bankruptcy schedules gained during intake interview questioning was protected by the attorney-client privilege. In re Stoutamire, 201 Bankr. 592 (Bankr. S.D. Ga. 1996) (decided under former O.C.G.A. § 24-9-24).

E-mails within attorney-client privilege.

- Appellants produced no evidence showing that the appellees waived their attorney-client privilege. The disclosure of e-mails during document production by counsel did not preclude later objection to their use by the appellees. Waiver of the attorney-client privilege occurs in very limited circumstances. Alston & Bird LLP v. Mellon Ventures II, L.P., 307 Ga. App. 640, 706 S.E.2d 652 (2010) (decided under former O.C.G.A. §§ 24-9-21 and24-9-24).

Letters

- Letter from the plaintiff in a case to plaintiff's attorney, and from the attorney delivered to defendant's counsel, is not admissible. Southern Ry. v. White, 108 Ga. 201, 33 S.E. 952 (1899) (decided under former Civil Code 1895, § 5271).

Inadvertent disclosure to defense counsel of a letter from the plaintiff to the plaintiff's attorneys did not waive the attorney-client privilege. Lazar v. Mauney, 192 F.R.D. 324 (N.D. Ga. 2000) (decided under former O.C.G.A. § 24-9-24).

Letters between a private investigator and defendant's attorneys.

- With regard to a defendant's conviction for malice murder, the trial court did not err by allowing the introduction of one letter by a private investigator and two letters by the defendant's attorneys in violation of the attorney-client privilege since the three letters did not involve any communications between the defendant and the defendant's attorneys. Rather, they were all communications between the private investigator and the attorneys, and the letters did not contain confidential information and, instead, concerned only the fact of the investigator's employment and the attorneys' claims that the investigator's services in the divorce case between the defendant and an estranged spouse fell under the attorney-client privilege. Davis v. State, 285 Ga. 343, 676 S.E.2d 215 (2009) (decided under former O.C.G.A. § 24-9-24).

Wills.

- Under the mandate of the former statute, the trial court errs in allowing decedent's attorney to testify as to confidential communications arising out of preparation of an unexecuted will for the decedent in an action for specific performance of an alleged oral contract to make a will. DeLoach v. Myers, 215 Ga. 255, 109 S.E.2d 777 (1959).

In an action against the estate of decedent's wife for breach of a contract to make a will, the decedent's nephew and decedent's secretary were barred from giving testimony regarding communications by the decedent to the nephew when the nephew was acting in the nephew's capacity as an attorney for the decedent. Spence v. Hamm, 226 Ga. App. 357, 487 S.E.2d 9 (1997) (decided under former O.C.G.A. § 24-9-25).

Inadvertent disclosure to defense counsel of a letter from plaintiff to plaintiff's attorneys did not waive the attorney-client privilege. Lazar v. Mauney, 192 F.R.D. 324 (N.D. Ga. 2000) (decided under former O.C.G.A. § 24-9-25).

Production of medical records.

- Medical records in defendant's claim files are subject to neither the work product privilege nor the doctor patient privilege and should be produced for plaintiff's review. Shipes v. BIC Corp., 154 F.R.D. 301 (M.D. Ga. 1994) (decided under former O.C.G.A. § 24-9-24).

Certain documents in an insurer's claim file were protected under the attorney-client privilege of former O.C.G.A. § 24-9-24 because the documents related to retaining an attorney to defend the insured and were related to the attorney's representation of the insured, along with the attorney's mental impressions that were protected under the work product doctrine. Underwriters Ins. Co. v. Atlanta Gas Light Co., 248 F.R.D. 663 (N.D. Ga. 2008) (decided under former O.C.G.A. § 24-9-24).

Testimony of investigator hired by attorney.

- In a proceeding on a motion to quash a subpoena requiring a private investigator to appear before a grand jury and produce evidence acquired by the investigator during employment in the defendant's divorce proceeding, there was no violation of the defendant's procedural rights because the investigator's in-camera testimony authorized the court to find that the subject communications from the defendant were made after the investigator ceased acting as an agent or employee of the attorney, and that the communications fell within the crime-fraud exception to the attorney-client privilege. In re Fulton County Grand Jury Proceedings, 244 Ga. App. 380, 535 S.E.2d 340 (2000) (decided under former O.C.G.A. § 24-9-24).

Attorney-client privilege did not cover the identity of documents a party reviewed to prepare for a deposition. McKinnon v. Smock, 264 Ga. 375, 445 S.E.2d 526 (1994) (decided under former O.C.G.A. §§ 24-9-21 and24-9-24).

Service performed as a favor.

- When an attorney who prepared a deed was not employed to do so, but prepared the deed merely as a "friendly act" for the grantor, such attorney was not incompetent to testify as to statements made by the grantor at the time. Lifsey v. Mims, 193 Ga. 780, 20 S.E.2d 32 (1942) (decided under former Code 1933, § 38-1605).

7. Third Parties

Presence of third party.

- When the communication made by a client to an attorney is in the presence of the other party to a contract, and it comes within the attorney's knowledge, such communication is not embraced in the rule which prohibits that it may be given in evidence by the attorney when called on so to do. Griffin v. Williams, 179 Ga. 175, 175 S.E. 449 (1934) (decided under former Code 1933, §§ 38-418 and 38-419).

Defendant's conversation with the defendant's attorney, made through a three-way call by the defendant's girlfriend and recorded at the jail, were admissible and not privileged under former O.C.G.A. § 24-9-24 because the defendant's girlfriend remained on the call and the telephone had signs and a message indicating that calls could be recorded. Rogers v. State, 290 Ga. 18, 717 S.E.2d 629 (2011) (decided under former O.C.G.A. § 24-9-24).

Defendant's act of delivering to his wife a statement for her to read, rewrite, sign and have notarized prior to his giving it to his attorney was a waiver of the attorney-client privilege as to such document. Osborn v. State, 233 Ga. App. 257, 504 S.E.2d 74 (1998) (decided under former O.C.G.A. § 24-9-24).

An eavesdropper or a wiretapper is not incompetent to testify to the communications one overhears. Taylor v. Taylor, 179 Ga. 691, 177 S.E. 582 (1934) (decided under former Code 1933, § 38-419).

Documents obtained from third parties.

- Attorney client privilege does not apply to documents obtained by the attorney from a third party, or even documents which a party filters through its attorney. Shipes v. BIC Corp., 154 F.R.D. 301 (M.D. Ga. 1994) (decided under former O.C.G.A. § 24-9-24).

Presence of opposite party.

- When a client makes to an attorney a communication or statement in the presence of the opposite party as to the transaction in hand, it is not confidential or privileged. Stone v. Minter, 111 Ga. 45, 36 S.E. 321, 50 L.R.A. 356 (1900) (decided under former Civil Code 1895, § 5271).

Use of agent to transmit communication.

- When legal advice of any kind is sought from a duly accredited professional legal advisor in the advisor's capacity as such, the communications relevant to that purpose, made in confidence by the client, are at the client's instance permanently protected from disclosure by the client, the legal advisor, or the agent of either confidentially used to transmit the communication, unless the client waives the protection; and clearly, therefore, since the client has used a confidential agent of transmission, which, under the circumstances, it was reasonably necessary for the client to do, the client will be protected against betrayal of this confidence by such agent to the same extent as against betrayal of confidence by the client's attorney. Taylor v. Taylor, 179 Ga. 691, 177 S.E. 582 (1934) (decided under former Code 1933, § 38-419).

Inapplicable to defendant-requested communications to third parties.

- Former O.C.G.A. § 24-9-25 was not implicated as to testimony relating to information the defendant instructs defense counsel to convey to third persons. Shelton v. State, 206 Ga. App. 579, 426 S.E.2d 69 (1992) (decided under former O.C.G.A. § 24-9-25).

Clerk or amanuensis of attorney cannot testify as to confidential communications in clerk's presence between the attorney and client. Taylor v. Taylor, 179 Ga. 691, 177 S.E. 582 (1934) (decided under former Code 1933, § 38-419).

Attorney-client relationship extends to the network of employees acting under the direction of the attorney. In re Stoutamire, 201 Bankr. 592 (Bankr. S.D. Ga. 1996) (decided under former O.C.G.A. § 24-9-24).

Paralegal's testimony in eviction proceeding.

- Trial court did not err by admitting the testimony of a paralegal with a tenant's former attorney's office as, assuming the attorney-client privilege applied to paralegals, the paralegal testified about meetings and other communications the paralegal had with the housing authority on the tenant's behalf, not about any private communications the paralegal had with the tenant. Martinez v. Hous. Auth., 264 Ga. App. 282, 590 S.E.2d 245 (2003) (decided under former O.C.G.A. § 24-9-25).

8. Testimony by Attorneys

In general.

- Attorney at law was not incompetent to testify to facts which did not come to the attorney's knowledge by reason of the relationship or contemplated relationship of attorney and client between oneself and another. Harkless v. Smith, 115 Ga. 350, 41 S.E. 634 (1902) (decided under former Civil Code 1895, § 5271).

Attorney is both competent and compellable to testify, for or against a client, as to any matter or thing, knowledge of which the attorney may have acquired in any other manner than by virtue of the attorney's relationship as attorney, or by reason of the attorney's anticipated employment as attorney. Bracewell v. State, 21 Ga. App. 133, 94 S.E. 91 (1917) (decided under former Civil Code 1910, § 5860).

Attorney-client privilege does not encompass matters of which the attorney has or gains knowledge through some source other than the communications of a client in preparation for litigation. If the attorney has knowledge from another source, testimony concerning that is proper. Buffington v. McClelland, 130 Ga. App. 460, 203 S.E.2d 575 (1973) (decided under former Code 1933, § 38-1605).

Attorney's involvement in disclosure irrelevant.

- Privilege bars communications regardless of whether the communications were voluntarily produced by the attorney to be used against the client, or were surreptitiously or otherwise taken from the possession of the attorney. McKie v. State, 165 Ga. 210, 140 S.E. 625 (1927) (decided under former Civil Code 1910, § 5786).

Attorney is not incompetent to testify as to mental condition of a deceased client, based upon the attorney's observations while representing the client in litigation. Smith v. Smith, 222 Ga. 694, 152 S.E.2d 560 (1966) (decided under former Code 1933, § 38-1605).

Compelling attorney to produce title papers.

- Court has no power to compel the counsel of one of the parties to disclose on oath, in spite of one's claim of privilege, that one has in court one of the client's title papers, and to produce the papers to be used in the suit as evidence for the opposite party, especially if notice to produce has not been previously given. Dover v. Harrell, 58 Ga. 572 (1877) (decided under former Code 1873, § 3854).

In a dispossessory action brought by a mortgage company against a possessor, the trial court properly granted the mortgage company a writ of possession as the company produced a recorded certified copy of the security deed, which the possessor failed to prove was a fraud since the possessor's signature on the deed matched that as appeared on the answer filed. The trial court properly rejected the possessor's attempt to examine the mortgage company's counsel regarding the authenticity of the deed since counsel represented the mortgage company and was, therefore, not competent to testify. Egana v. HSBC Mortg. Corp., 294 Ga. App. 456, 669 S.E.2d 159 (2008) (decided under former O.C.G.A. § 24-9-25).

Attorney competency to testify on execution of wills.

- Former statute had no application to the competency of an attorney as a witness with respect to essential facts attending the execution of a will in preparation and as to attestation of which the attorney rendered professional services. O'Brien v. Spalding, 102 Ga. 490, 31 S.E. 100, 66 Am. St. R. 202 (1897) (decided under former Civil Code 1895, § 5271); Waters v. Wells, 155 Ga. 439, 117 S.E. 322 (1923); Manley v. Combs, 197 Ga. 768, 30 S.E.2d 485 (1944) (decided under former Civil Code 1910, § 5860);(decided under former Code 1933, § 38-1605).

Facts attending execution of will.

- Former statute had no application to the competency of an attorney as a witness with respect to essential facts attending execution of a will. Manley v. Combs, 197 Ga. 768, 30 S.E.2d 485 (1944) (decided under former Code 1933, § 38-418).

Attorney withholding name of client.

- Attorney who delivered an anonymous campaign contribution on behalf of a client in violation of O.C.G.A. § 21-5-30(e) was improperly held in contempt for failing to disclose the client's name to the State Ethics Commission; the attorney invoked the self-incrimination privilege and the trial court found the attorney in contempt without first determining whether the commission's proposed questions might have been incriminating. Begner v. State Ethics Comm'n, 250 Ga. App. 327, 552 S.E.2d 431 (2001) (decided under former O.C.G.A. § 24-9-27).

9. Corporations as Clients

Corporation can avail itself of the attorney-client privilege. Marriott Corp. v. American Academy of Psychotherapists, Inc., 157 Ga. App. 497, 277 S.E.2d 785 (1981) (decided under former Code 1933, §§ 38-418 and 38-419).

Burden is upon a corporation seeking to invoke the attorney-client privilege to establish that corporate counsel's advice was privileged legal advice and thus not subject to discovery. Southern Guar. Ins. Co. v. Ash, 192 Ga. App. 24, 383 S.E.2d 579 (1989) (decided under former O.C.G.A. §§ 24-9-21 and24-9-24).

No distinction between advice on specific cases and day-to-day business.

- Attorney-client privilege statutes make no distinction between legal advice given to a corporate client in regard to specific cases pending and legal advice concerning day-to-day business matters. Southern Guar. Ins. Co. v. Ash, 192 Ga. App. 24, 383 S.E.2d 579 (1989) (decided under former O.C.G.A. §§ 24-9-21 and24-9-24).

Attorney-client privilege was applicable to a corporate employee's communication if: (1) the communication was made for the purpose of securing legal advice; (2) the employee making the communication did so at the direction of the employee's corporate superior; (3) the superior made the request so that the corporation could secure legal advice; (4) the subject matter of the communication was within the scope of the employee's corporate duties; and (5) the communication was not disseminated beyond those persons who, because of the corporate structure, need to know its contents; moreover, the corporation had the burden of showing that the communication in issue met all of the above requirements. Marriott Corp. v. American Academy of Psychotherapists, Inc., 157 Ga. App. 497, 277 S.E.2d 785 (1981) (decided under former Code 1933, §§ 38-418, 38-419).

Communications between attorney and client are excluded from consideration of public policy and the privilege applied to communications to the officers and employees of a corporate client as well as to individual clients. Associated Grocers Coop. v. Trust Co., 158 Ga. App. 115, 279 S.E.2d 248 (1981) (decided under former Code 1933, § 38-419).

Letters between attorney and agent of corporation.

- Letters written between the attorney and the agent of a corporation, which was the attorney's client, containing confidential communications between the two, should not have been forced to be produced for use in evidence against the client. Fire Ass'n v. Fleming, 78 Ga. 733, 3 S.E. 420 (1887) (decided under former Code 1882, § 3854).

Disclosure of reasons for suit in individual capacity.

- An action was originally commenced against an individual, the sole shareholder of a corporation, instead of the corporation itself, the proper party. In a later action for abuse of process, the trial court properly allowed evidence to show that the defendant (the original plaintiff) was unwilling to allow the defendant's original attorney to divulge the reasons why the present plaintiff had been sued in an individual capacity, and to draw any reasonable inferences from this taking of the attorney-client privilege. Ostroff v. Coyner, 187 Ga. App. 109, 369 S.E.2d 298 (1988) (decided under former O.C.G.A. §§ 24-9-24 and24-9-25).

10. Criminal Matters

Crime-fraud exception to privilege.

- Under the crime-fraud exception to the attorney-client privilege, the privilege does not extend to communications which occur before perpetration of a fraud or commission of a crime and which relate thereto. In re Fulton County Grand Jury Proceedings, 244 Ga. App. 380, 535 S.E.2d 340 (2000) (decided under former O.C.G.A. § 24-9-24).

Privilege not to be used to carry out crimes.

- Privileged communication may be a shield of defense as to crimes already committed, but the privilege cannot be used as a sword or weapon of offense to enable persons to carry out contemplated crimes against society, frauds, or perjuries. Marriott Corp. v. American Academy of Psychotherapists, Inc., 157 Ga. App. 497, 277 S.E.2d 785 (1981) (decided under former Code 1933, §§ 38-418 and 38-419).

Communication of criminal plans.

- As to violations of law or commissions of fraud, the protection extends only to communications after the act or transaction is finished, and does not cover communications respecting proposed infractions of the law in commission of a crime or perpetration of a fraud. Atlanta Coca-Cola Bottling Co. v. Goss, 50 Ga. App. 637, 179 S.E. 420 (1935) (decided under former Code 1933, § 38-419).

Testimony sought fell within attorney-client privilege.

- Testimony that defendant sought from a codefendant's lawyer relating to an alleged deal to provide substantial assistance to the prosecution fell within the attorney-client privilege because there was no evidence of any fraud or crime; although the defendant insisted that the codefendant committed perjury when testifying that the codefendant's attorney did not discuss "substantial assistance" with the codefendant, these arguments were merely speculative. Pihlman v. State, 292 Ga. App. 612, 664 S.E.2d 904 (2008), cert. denied, No. S08C1954, 2008 Ga. LEXIS 977 (Ga. 2008) (decided under former O.C.G.A. §§ 24-9-21 and24-9-24).

When no request is made by accused or the accused's counsel to confer privately without the presence of the marshal, the mere existence of such right would not affect the validity of the conviction, since there must be denial of such right by the trial judge before the accused may complain. Fowler v. Grimes, 198 Ga. 84, 31 S.E.2d 174, cert. denied, 323 U.S. 784, 65 S. Ct. 266, 89 L. Ed. 626 (1944) (decided under former Code 1933, §§ 38-418 and 38-419).

Testimony of coconspirator's lawyer barred in criminal proceeding.

- Criminal defendant's request to call defendant's coconspirator's counsel to rebut the coconspirator's testimony that the coconspirator had not been offered any "deal" by the state in exchange for the coconspirator's testimony was properly denied because the testimony the defendant sought to elicit came within the attorney-client privilege. Avery v. State, 244 Ga. App. 177, 534 S.E.2d 897 (2000) (decided under former O.C.G.A. §§ 24-9-21,24-9-24, and24-9-25).

Attorney revealing location of victim's body to court.

- While the state is likely correct that defendant's attorney had a positive obligation to reveal the location of the victim's body to law enforcement officers, it does not follow of necessity that the state should disclose to the jury that the source of the information that led to the discovery of the body was the attorney. Offering such testimony is a dangerous practice, and one the Supreme Court disapproves. Williams v. State, 258 Ga. 281, 368 S.E.2d 742 (1988), cert. denied, 492 U.S. 925, 109 S. Ct. 3261, 106 L. Ed. 2d 606 (1989) (decided under former O.C.G.A. §§ 24-9-21,24-9-24, and24-9-25).

School records when mental capacity raised as defense.

- Pre-trial discovery of defendant's school records was permissible and not in error because the defendant, on trial for murder, raised the issue of mental retardation and put the defendant's mental capacity at issue, thus causing the affirmative defense of privilege to be waived. Perkinson v. State, 279 Ga. 232, 610 S.E.2d 533, cert. denied, 546 U.S. 896, 126 S. Ct. 229, 163 L. Ed. 2d 214 (2005) (decided under former O.C.G.A. § 24-9-21).

Admission of certain letters did not violate privilege.

- Admission of three letters from attorneys to the defendant in a malice murder trial did not violate the attorney-client privilege: the first letter was not privileged as the letter merely showed employment of an attorney; the second letter simply forwarded a letter noting the enclosure of a final payment for a real estate transaction; and the third letter was a follow-up letter asking the defendant if there was a mortgage or another indebtedness on the property and whether the defendant had a deed. Bryant v. State, 282 Ga. 631, 651 S.E.2d 718 (2007) (decided under former O.C.G.A. § 24-9-24).

Knowledge of plea deal.

- Testimony that defendant sought from a codefendant's lawyer relating to an alleged deal to provide substantial assistance to the prosecution fell within the attorney-client privilege because there was no evidence of any fraud or crime; although the defendant insisted that the codefendant committed perjury when by testifying that the codefendant's attorney did not discuss "substantial assistance" with the codefendant, these arguments were merely speculative. Pihlman v. State, 292 Ga. App. 612, 664 S.E.2d 904 (2008), cert. denied, No. S08C1954, 2008 Ga. LEXIS 977 (Ga. 2008) (decided under former O.C.G.A. § 24-9-25).

Statement ceases to be privileged when renounced by criminal defendant.

- When the defendant in a murder trial testified, without objection, at the defendant's previous trial that the defendant lied to the defendant's attorney by telling the attorney that someone at the scene of the shooting handed the defendant the murder weapon, the defendant's testimony caused the information to cease to be a privileged communication, and proof of the statement at the defendant's later trial became permissible. Felts v. State, 244 Ga. 503, 260 S.E.2d 887 (1979) (decided under former Code 1933, § 38-418).

Habeas proceeding.

- Habeas petitioner who asserted a claim of ineffective assistance of counsel made a limited waiver of the attorney-client privilege and work product doctrine and the state was entitled only to counsel's documents and files relevant to the specific allegations of ineffectiveness. Waldrip v. Head, 272 Ga. 572, 532 S.E.2d 380 (2000), recons. denied; overruled on other grounds by Duke v. State, 829 S.E.2d 348, 2019 Ga. LEXIS 406 (Ga. 2019) (decided under former O.C.G.A. § 24-9-21).

Habeas petitioner who asserted a claim of ineffective assistance of counsel made a limited waiver of the attorney-client privilege and work product doctrine; thus, the state was entitled only to counsel's documents and files relevant to the specific allegations of ineffectiveness. Waldrip v. Head, 272 Ga. 572, 532 S.E.2d 380 (2000), recons. denied; overruled on other grounds by Duke v. State, 829 S.E.2d 348, 2019 Ga. LEXIS 406 (Ga. 2019) (decided under former O.C.G.A. §§ 24-9-24,24-9-25).

11. Application in Other Specific Actions

Actions by client against attorney.

- Rule as to privilege has no application if the client, in an action against the attorney, charges negligence, malpractice, or fraud, or other professional misconduct. In such cases it would be a manifest injustice to allow the client to take advantage of the rule of privilege to the prejudice of the attorney. Daughtry v. Cobb, 189 Ga. 113, 5 S.E.2d 352 (1939) (decided under former Code 1933, § 38-1605).

Testimony pertaining to attorney fees is not a matter the knowledge of which the lawyer obtains from the client, and it is not necessary that the attorney be listed as a witness in the pre-trial order in order to testify as to such fees. Halpern v. Lacy Inv. Corp, 259 Ga. 264, 379 S.E.2d 519 (1989) (decided under former O.C.G.A. § 24-9-25).

No disqualification in adversarial bankruptcy action after former representation in arbitration proceeding.

- Bankruptcy court denied a trustee's motion to disqualify an attorney who represented a church that was sued in an adversary proceeding; although the attorney represented the church during an arbitration proceeding that led to a settlement agreement, and the trustee claimed that the attorney was a potential witness who had information relevant to the claim that the church breached the settlement agreement, the court noted that former O.C.G.A. § 24-9-25 protected the attorney from being called to testify about information the attorney obtained while performing legal services for the church, and that evidence regarding nonprivileged matters was attainable from other sources, and the court found that allowing the attorney to represent the church would not be a violation of Ga. St. Bar R. 4-102:3.7. Hays v. Paradise Mission Church, Inc. (In re Harrington, George & Dunn, P.C.), Bankr. (Bankr. N.D. Ga. May 29, 2007) (decided under former O.C.G.A. § 24-9-25).

Consider statute in disqualifying attorneys.

- When there was no evidence showing the attorneys acquired knowledge regarding the surety's denial of a general contractor's claim in a capacity other than as surety's attorneys, and when it was unclear from the trial court's order whether the trial court considered former O.C.G.A. § 24-9-25 applicable to the decision to disqualify the attorneys, and the former statute being directly relevant to the issue of disqualification, the trial court's order disqualifying the surety's counsel was reversed and the case remanded for a determination of whether the attorneys could even be competent witnesses in the case. Amwest Sur. Ins. Co. v. Interstate Constr. Co., 212 Ga. App. 590, 442 S.E.2d 772 (1994) (decided under former O.C.G.A. § 24-9-25).

Incompetency does not relate solely to admissions made by the client. Freeman v. Brewster, 93 Ga. 648, 21 S.E. 165 (1894) (decided under Ga. L. 1887, p. 30, § 1).

Testimony of client as to advice given to the client by counsel is incompetent, and on timely motion should be excluded. Braxley v. State, 17 Ga. App. 196, 86 S.E. 425 (1915) (decided under former Penal Code 1910, § 1037).

Whether a law firm may claim privilege to legal advice regarding duties to a current client from in-house counsel depends on whether there is a conflict of interest between firm counsel's duty to the law firm and firm counsel's duty to the outside client. This question is largely a factual one, to be decided by the trial court. Hunter, Maclean, Exley & Dunn, P.C. v. St. Simons Waterfront, LLC, 317 Ga. App. 1, 730 S.E.2d 608 (2012) (decided under former O.C.G.A. §§ 24-9-24,24-9-25, and24-9-27).

Declaring book to be original.

- Allowing defendant to state, under oath, that the book which defendant proposed to offer in evidence was the defendant's original book of entry was not such testimony or evidence in relation to the cause of action in issue or on trial as was contemplated by former statute. Strickland v. Wynn, 51 Ga. 600 (1874) (decided under former Code 1873, § 3854).

Contracts.

- Former statute had no application to the competency of an attorney as a witness with respect to essential facts attending the execution of a contract in preparation and as to attestation of which the attorney rendered professional service. In such a matter the attorney was not testifying "for or against his client." Smith v. Smith, 222 Ga. 694, 152 S.E.2d 560 (1966), later appeal, 223 Ga. 560, 156 S.E.2d 901 (1967) (decided under former Code 1933, § 38-1605).

Evidence of employment of attorney.

- It was competent to show the fact of an attorney's employment, either by the client or the attorney, and evidence confined to this fact was not objectionable on the ground that it involved confidential relations. Fowler v. Sheridan, 157 Ga. 271, 121 S.E. 308 (1924) (decided under former Civil Code 1910, § 5860).

Insurance carried by client.

- Rule applies with reference to the attorney's knowledge concerning insurance which the client may have carried. Weatherbee v. Hutcheson, 114 Ga. App. 761, 152 S.E.2d 715 (1966) (decided under former Code 1933, § 38-1605).

Attorney's knowledge of contents of insurance policy.

- When knowledge of an attorney of the contents of an insurance policy was acquired while acting in the attorney's professional capacity under employment to collect the policy, and by reason of that relationship, the attorney was an incompetent witness to testify to those facts, it was error to admit this evidence. Freeman v. Brewster, 93 Ga. 648, 21 S.E. 165 (1894) (decided under Ga. L. 1887, p. 30, § 1).

No privilege between principal and agent.

- Communications between principal and agent are not privileged, even if such communications ultimately reach the principal's attorney and are used in preparing a defense to litigation arising out of the occurrence forming the subject matter of the communications. GMC v. Moseley, 213 Ga. App. 875, 447 S.E.2d 302 (1994) (decided under former O.C.G.A. § 24-9-21).

Communications between principal and agent are not privileged, even if such communications ultimately reach the principal's attorney and are used in preparing a defense to litigation arising out of the occurrence forming the subject matter of the communications. GMC v. Moseley, 213 Ga. App. 875, 447 S.E.2d 302 (1994) (decided under former O.C.G.A. § 24-9-24).

Confidential informants.

- Trial court did not abuse the court's discretion in denying disclosure of the identity of a confidential informant who may have seen defendant in the possession of contraband, but who was not present, did not participate in the arrest, and did not take part in the offense. Leonard v. State, 228 Ga. App. 792, 492 S.E.2d 747 (1997) (decided under former O.C.G.A. § 24-9-21).

Public policy in Georgia favored nondisclosure of the identity of a confidential informant (CI); because a CI did not participate in a controlled drug buy, the defendant's request to disclose the CI's identity was properly denied; while the defendant argued that the CI was a witness to whether or not the defendant consented to a search of the defendant's car, whether the defendant consented was immaterial because an officer was authorized to arrest the defendant for drug possession, and based on that arrest, the officer had the authority to search the car. Little v. State, 280 Ga. App. 60, 633 S.E.2d 403 (2006) (decided under former O.C.G.A. § 24-9-21).

Pursuant to former O.C.G.A. §§ 24-9-21 and24-9-27 (see now O.C.G.A. §§ 24-5-501 and24-5-505), the trial court correctly denied the defendant's motion to reveal a confidential informant's identity because the informant was a mere tipster; while the informant saw the victim and the defendant interact prior to entering a wooded area, the informant did not witness the actual rape, the offense forming the basis of the defendant's prosecution, and was not a participant in the attack. Strozier v. State, 314 Ga. App. 432, 724 S.E.2d 446 (2012) (decided under former O.C.G.A. § 24-9-21).

Identity of confidential informant.

- In a prosecution for possession of cocaine with intent to distribute, the trial court did not err in not revealing the identity of a confidential informant since the informant's testimony was not material to the issue of guilt or punishment as the defendant was not charged with selling cocaine to the informant and the informant was not present during the search and arrest and was neither a participant in nor a witness to the specific offense with which the defendant was charged. Turner v. State, 247 Ga. App. 775, 544 S.E.2d 765 (2001) (decided under former O.C.G.A. § 24-9-21).

No privilege between applicant and employer.

- Communications between an applicant for a job and the prospective employer, or between an applicant for unemployment insurance and the State Department of Labor, are not privileged communications for purposes of the former statute. Guy v. State, 138 Ga. App. 11, 225 S.E.2d 492 (1976) (decided under former Code 1933, § 38-418).

Out-of-state order prohibiting unprivileged testimony.

- Michigan order, by facially prohibiting former corporate litigation consultant from testifying as to matters outside the scope of any privilege, violated Georgia public policy; therefore, the Full Faith and Credit Clause did not require the federal district court in Georgia to give full effect to the Michigan Court order. Williams v. GMC, 147 F.R.D. 270 (S.D. Ga. 1993) (decided under former O.C.G.A. §§ 24-9-21,24-9-24, and24-9-25).

Attorney attacking judgment.

- Attorney of record who represented a plaintiff in bringing suit and taking judgment will not be heard to urge, in the attorney's own behalf, the invalidity of the judgment for want of process. Kennedy v. Redwine, 59 Ga. 327 (1877) (decided under former Code 1873, § 3854).

Attorney-client privilege applies to communications between a law firm's attorneys and its in-house counsel regarding a client's potential claims against the firm when: (1) there is a genuine attorney-client relationship between the firm's lawyers and in-house counsel; (2) the communications in question were intended to advance the firm's interests in limiting exposure to liability rather than the client's interests in obtaining sound legal representation; (3) the communications were conducted and maintained in confidence; and (4) no exception to the privilege applies. St. Simons Waterfront, LLC v. Hunter, Maclean, Exley & Dunn, P.C., 293 Ga. 419, 746 S.E.2d 98 (2013).

Communications with Grand Jurors

Privilege not waived by testifying before grand jury.

- Civil plaintiff's counsel did not waive the work product privilege by testifying before a grand jury regarding information allegedly covered by the privilege and therefore did not render oneself a potential witness in the civil trial. Wrisco Indus., Inc. v. Hinely, 733 F. Supp. 106 (N.D. Ga. 1990) (decided under former O.C.G.A. § 24-9-24).

Secrets of State

Secrets of state created no disclosure privilege.

- "Secrets of state" privilege did not exempt cost estimates of the DOT from disclosure under the Open Records Act, O.C.G.A. § 50-14-1 et seq. Hardaway Co. v. Rives, 262 Ga. 631, 422 S.E.2d 854 (1992) (decided under former O.C.G.A. § 24-9-21).

Existence of "open government" does not negate existence of attorney-client privilege as to matters discussed between county officials and county attorney. Dodson v. Floyd, 529 F. Supp. 1056 (N.D. Ga. 1981) (decided under former Code 1933, §§ 38-419 and 38-1605).

Communications Between Psychiatrist and Patient

Definition of psychiatrist.

- "Psychiatrist" in former O.C.G.A. § 24-9-21 meant a person licensed to practice medicine, or reasonably believed by the patient so to be, who devoted a substantial portion of his or her time engaged in the diagnosis and treatment of a mental or emotional condition, including drug or alcohol addiction. Wiles v. Wiles, 264 Ga. 594, 448 S.E.2d 681 (1994) (decided under former O.C.G.A. § 24-9-21).

Nature of privilege between psychiatrist and patient.

- As a matter of public policy, Georgia excludes communications between psychiatrist and patient. This privilege is absolute, although it may be waived. Without a waiver, there is no basis for the admission of testimony about communications between psychiatrist and patient. Freeman v. State, 196 Ga. App. 343, 396 S.E.2d 69 (1990) (decided under former O.C.G.A. § 24-9-21).

Prerequisite relationship.

- Before the privilege may be invoked, the requisite relationship of psychiatrist and patient must have existed to the extent that treatment was given or contemplated. Massey v. State, 226 Ga. 703, 177 S.E.2d 79 (1970), cert. denied, 401 U.S. 964, 91 S. Ct. 984, 28 L. Ed. 2d 248 (1971), for comment, see 21 J. of Pub. L. 251 (1972) (decided under former Code 1933, § 38-418) Strickland v. State, 260 Ga. 28, 389 S.E.2d 230 (1990); Mrozinski v. Pogue, 205 Ga. App. 731, 423 S.E.2d 405 (1992) (decided under former O.C.G.A. § 24-9-21);(decided under former O.C.G.A. § 24-9-21).

When a party goes to a psychiatrist on the party's own volition for the purpose of gaining professional psychiatric assistance, this creates the requisite confidential relationship of psychiatrist and patient to claim the privilege. Kimble v. Kimble, 240 Ga. 100, 239 S.E.2d 676 (1977) (decided under former Code 1933, § 38-418).

Existence of a "voluntary" psychiatrist-patient relationship rendered any testimony whatsoever by the psychiatrist excludable from evidence at the election of the patient. Wilson v. Bonner, 166 Ga. App. 9, 303 S.E.2d 134 (1983) (decided under former O.C.G.A. § 24-9-21).

When the defendant, the father of a child, retained a psychiatrist and paid the psychiatrist's fee for the purpose of obtaining testimony for use in a contempt action for visitation rather than for the purpose of obtaining psychiatric treatment or counseling, no psychiatrist-patient relationship existed as contemplated by former O.C.G.A. § 24-9-21 and the psychiatrist was properly permitted to testify in a criminal action against the defendant. Fulbright v. State, 194 Ga. App. 827, 392 S.E.2d 298 (1990) (decided under former O.C.G.A. § 24-9-21).

No psychiatrist/patient relationship was created if: (1) the defendant was not seeking out psychiatric care in the usual sense of the term; and (2) no real treatment was given or contemplated. Rachals v. State, 184 Ga. App. 420, 361 S.E.2d 671 (1987), aff'd, 258 Ga. 48, 364 S.E.2d 867, cert. denied, 487 U.S. 1238, 108 S. Ct. 2909, 101 L. Ed. 2d 941 (1988) (decided under former O.C.G.A. § 24-9-21).

Psychiatric medical records are not absolutely privileged. Donalson v. State, 192 Ga. App. 37, 383 S.E.2d 588 (1989), cert. denied, 493 U.S. 1030, 110 S. Ct. 742, 107 L. Ed. 2d 760 (1990) (decided under former O.C.G.A. § 24-9-21).

Contents of a psychiatrist's records were privileged as to communications between the psychiatrist and a patient; however, the privilege did not extend to communications made to nurses or attendants, unless the nurses or attendants were acting as agents of the psychiatrist, nor did it preclude discovery of the fact and dates of treatment. Plunkett v. Ginsburg, 217 Ga. App. 20, 456 S.E.2d 595 (1995) (decided under former O.C.G.A. § 24-9-21).

Parent's standing to sue for violation of child's privilege.

- Father had standing to file suit for unauthorized disclosure of his minor daughter's clinical records and for unauthorized release of privileged material regarding his minor daughter. Mrozinski v. Pogue, 205 Ga. App. 731, 423 S.E.2d 405, cert. denied, 205 Ga. App. 901, 423 S.E.2d 405 (1992) (decided under former O.C.G.A. § 24-9-21).

Communications with physicians generally distinguished.

- Former paragraph (5) of O.C.G.A. § 24-9-21 read with former O.C.G.A. § 24-9-40 (see now O.C.G.A. § 24-12-1) reflected that the physician shield law applied to physicians generally but required physicians to release information upon proper order, whereas the confidentiality of communications to psychiatrists was protected by public policy and such communications were expressly excepted from the shield statute. Gilmore v. State, 175 Ga. App. 376, 333 S.E.2d 210 (1985) (decided under former O.C.G.A. § 24-9-21).

Communications absolutely privileged.

- When plaintiff's decedent took an overdose of prescription drugs and subsequently died during hospitalization, prior communications between decedent as patient and decedent's psychiatrist were not discoverable as objective evidence of decedent's mental state. Dynin v. Hall, 207 Ga. App. 337, 428 S.E.2d 89 (1993) (decided under former O.C.G.A. § 24-9-21).

Communications to coordinate care were proper.

- Trial court properly directed a verdict in favor of the defendant, a psychiatrist, with regard to the plaintiff's invasion of privacy complaint, which asserted that the defendant's letters to the other treating physicians of the plaintiff violated the plaintiff's right to privacy because the evidence established that the information in the three letters disclosed to the plaintiff's other treating physicians was disclosed in an attempt to coordinate care; the sharing of the information did not amount to a public disclosure and there was no evidence that the other treating physicians shared the information with anyone else. Haughton v. Canning, 287 Ga. App. 28, 650 S.E.2d 718 (2007), cert. denied, No. S07C1869, 2008 Ga. LEXIS 157 (Ga. 2008) (decided under former O.C.G.A. § 24-9-21).

In an action arising from the unauthorized release of plaintiff's psychiatric records by a hospital authority, under the facts of the case, and because of the strong public policy of maintaining strict compliance with the requirements governing release of psychiatric records, the trial court erred in granting summary judgment to the defendants. Sletto v. Hospital Auth., 239 Ga. App. 203, 521 S.E.2d 199 (1999) (decided under former O.C.G.A. § 24-9-21).

Court-appointed psychiatrist may testify.

- Psychiatrist appointed by the court for a sanity examination of the defendant may not be regarded as a prosecution witness, but is instead a witness for the court, and the psychiatrist's testimony as to statements made to the psychiatrist by the defendant during the course of the psychiatrist's examination of the defendant is admissible. Massey v. State, 226 Ga. 703, 177 S.E.2d 79 (1970), cert. denied, 401 U.S. 964, 91 S. Ct. 984, 28 L. Ed. 2d 248 (1971) (decided under former Code 1933, § 38-418). For comment, see 21 J. of Pub. L. 251 (1972).

Privileged relationship between psychiatrist and patient did not exist in criminal cases when the defendant pled not guilty by reason of insanity, and the psychiatrist was appointed by the court to determine the issue of sanity. Kimble v. Kimble, 240 Ga. 100, 239 S.E.2d 676 (1977) (decided under former Code 1933, § 38-418).

When a psychiatrist or psychologist was appointed by the court to conduct a preliminary examination of a criminal defendant, the psychiatrist or psychologist was a witness for the court, and the privilege concerning communications with a client did not apply. Christenson v. State, 261 Ga. 80, 402 S.E.2d 41, cert. denied, 502 U.S. 855, 112 S. Ct. 166, 116 L. Ed. 2d 130 (1991) (decided under former O.C.G.A. § 24-9-21).

Objective results of court-ordered examination are admissible.

- When the examination of the defendant by a physician had been ordered by the court at the request of the defendant's counsel, communications between the defendant and the physician were protected, but the objective result of the examination was not so protected, and the objective result of the examination was admissible. Plummer v. State, 229 Ga. 749, 194 S.E.2d 419 (1972) (decided under former Code 1933, § 38-418).

Doctor's opinion that ward needed guardian.

- In a proceeding to terminate a guardianship proceeding, even if a psychiatrist-patient relationship existed between the doctor and ward, admission of the doctor's opinion that the ward needed a guardian of the ward's estate was harmless because the testimony was cumulative of other evidence which was properly admitted. In re Vincent, 240 Ga. App. 876, 525 S.E.2d 409 (1999) (decided under former O.C.G.A. § 24-9-21).

Cross-examination after testimony about communication.

- By calling the doctor as a witness and allowing the doctor to testify as to the mental condition of the accused, the defense waived the right to object to relevant cross-examination of the doctor on the ground that such matter was privileged communication between the patient and psychiatrist. Fields v. State, 221 Ga. 307, 144 S.E.2d 339 (1965) (decided under former Code 1933, § 38-418); Griggs v. State, 241 Ga. 317, 245 S.E.2d 269 (1978);(decided under former Code 1933, § 38-418).

Prosecutor's reference to the defendant's right to have psychiatrist not testify was not a violation of defendant's right against self-incrimination. Willett v. State, 223 Ga. App. 866, 479 S.E.2d 132 (1996) (decided under former O.C.G.A. § 24-9-21).

Since the defendant was not at a mental hospital for treatment nor did the record reflect that the defendant received any, the psychiatrist-patient privilege did not apply. Moody v. State, 244 Ga. 247, 260 S.E.2d 11 (1979) (decided under former Code 1933, § 38-418).

Joint counseling statement inadmissible.

- Psychiatric-patient privilege applied to statements made by her husband in joint counseling sessions even though the wife requested admission at her trial for his murder. Sims v. State, 251 Ga. 877, 311 S.E.2d 161 (1984) (decided under former O.C.G.A. § 24-9-21).

Joint treatment with other persons.

- Psychiatrist-patient privilege was not diminished by the fact that the patient sought or contemplated treatment jointly with other persons, or primarily for the benefit of another person who was in treatment by the same psychiatrist. Mrozinski v. Pogue, 205 Ga. App. 731, 423 S.E.2d 405, cert. denied, 205 Ga. App. 901, 423 S.E.2d 405 (1992) (decided under former O.C.G.A. § 24-9-21).

Facts of patient treatment and dates not within privilege.

- Facts that two hospitals treated the defendant as a patient and the dates of those treatments were not within the psychiatrist-patient privilege. Johnson v. State, 254 Ga. 591, 331 S.E.2d 578 (1985), cert. denied, 490 U.S. 1072, 109 S. Ct. 2079, 104 L. Ed. 2d 644 (1989) (decided under former O.C.G.A. § 24-9-21).

Clinical record from psychiatric hospital producible, except for privileged communications.

- When ex-husband, in a child custody proceeding, duly subpoenaed ex-wife's clinical record from the psychiatric hospital where she had voluntarily admitted herself, that record was producible, except for the portions containing any privileged communications. Weksler v. Weksler, 173 Ga. App. 250, 325 S.E.2d 874 (1985) (decided under former O.C.G.A. § 24-9-21).

Since the mental health records of an incompetent, deaf, and speechless criminal defendant contain both privileged communications under former O.C.G.A. § 24-9-21 and O.C.G.A. § 43-39-16, and nonprivileged communications, records which contain privileged material were not to be produced in response to a request for production, but the remaining documents must be produced. Annandale at Suwanee, Inc. v. Weatherly, 194 Ga. App. 803, 392 S.E.2d 27 (1990) (decided under former O.C.G.A. § 24-9-21).

Trial court erred by not conducting an in-camera inspection of a plaintiff's mental health records to determine whether the records contained any nonprivileged information relevant to the plaintiff's claims for damages in a civil suit. Aetna Cas. & Sur. Co. v. Ridgeview Inst., Inc., 194 Ga. App. 805, 392 S.E.2d 286 (1990) (decided under former O.C.G.A. § 24-9-21).

Discoverability in nonparty document production request.

- Patient's failure to object within 10 days to a request for nonprivileged matter under a nonparty document production request did not amount to an affirmative waiver of privileged communications with the patient's psychiatrist. Hopson v. Kennestone Hosp., 241 Ga. App. 829, 526 S.E.2d 622 (1999), aff'd, 273 Ga. 145, 538 S.E.2d 742 (2000) (decided under former O.C.G.A. § 24-9-21).

Rule that a party's failure to object to a discovery request within the time required generally will result in a waiver of the right to object does not apply to requests under O.C.G.A. § 9-11-34(c) to nonparties for the production of documents that are protected by the psychiatrist-patient privilege. Hopson v. Kennestone Hosp., 241 Ga. App. 829, 526 S.E.2d 622 (1999), aff'd, 273 Ga. 145, 538 S.E.2d 742 (2000) (decided under former O.C.G.A. § 24-9-21).

In order to abrogate the psychiatrist-patient privilege, the defendant must make a showing of necessity, that is, that the evidence in question is critical to defendant's defense and that substantially similar evidence is otherwise unavailable to the defendant. Bobo v. State, 256 Ga. 357, 349 S.E.2d 690 (1986); King v. State, 273 Ga. 258, 539 S.E.2d 783 (2000), cert. denied, 536 U.S. 957, 122 S. Ct. 2659, 153 L. Ed. 2d 834 (2002) (decided under former O.C.G.A. § 24-9-21).

Fact that plaintiff was seeking to recover damages for injuries of a mental and emotional nature would not constitute a waiver of the privilege to exclude testimony of defendant's psychiatrist. Wilson v. Bonner, 166 Ga. App. 9, 303 S.E.2d 134 (1983) (decided under former O.C.G.A. § 24-9-21).

Compositions written by defendant at the request of a psychiatrist were not subject to the evidentiary privilege for "communications between psychiatrist and patient" because the compositions were found in a trash can in defendant's home with no showing that the compositions were ever given to the psychiatrist. Daker v. State, 243 Ga. App. 848, 533 S.E.2d 393 (2000), cert. denied, 534 U.S. 1093, 122 S. Ct. 838, 151 L. Ed. 2d 717 (2002), cert. denied, 534 U.S. 1093, 122 S. Ct. 838, 151 L. Ed. 2d 717 (2002) (decided under former O.C.G.A. § 24-9-21).

Privilege waived.

- Trial court in civil proceeding brought by an injured police officer against an individual who suffered from a mental condition did not err in ruling that the individual lost the statutory psychiatric privilege by involuntary commitment to a state mental health facility. Trammel v. Bradberry, 256 Ga. App. 412, 568 S.E.2d 715 (2002) (decided under former O.C.G.A. § 24-9-21).

Trial court did not abuse the court's discretion in admitting a 1980 report during the defendant's murder trial, which admitted a psychologist's testimony and materials, performed for evaluation purposes, specifically to explore the possibility of an insanity plea, rather than for professional treatment, as under Georgia law, there can be no expectation of confidentiality based on the psychologist/patient privilege when the sole purpose of the relationship is evaluation. Even if such a privilege existed as to the 1980 report, when the defendant raised the claim of mental retardation, putting the defendant's mental capacity at issue, such affirmative defense waived any privilege. Rogers v. State, 282 Ga. 659, 653 S.E.2d 31 (2007), cert. denied, 552 U.S. 1311, 128 S. Ct. 1882, 170 L. Ed. 2d 747, reh'g denied, 554 U.S. 930, 128 S. Ct. 2988, 171 L. Ed. 2d 907 (2008), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020) (decided under former O.C.G.A. § 24-9-21).

Other Mental Health Professionals

Communications with mental health professionals other than psychiatrists or psychologists.

- When defendant's counselors were not psychiatrists nor clinical psychologists, defendant's communications with the counselors were not privileged. While it is arguable that disclosures made in confidence to mental health professionals other than psychiatrists and psychologists ought to be privileged, the legislature has not seen to make them so. Lipsey v. State, 170 Ga. App. 770, 318 S.E.2d 184 (1984) (decided under former O.C.G.A. § 24-9-21).

Communication with mental health professional.

- Trial court erred in requiring a plaintiff to produce any confidential communications made between the plaintiff and the plaintiff's mental-health-care providers because the plaintiff's handling of discovery, albeit troublesome, did not amount to a decisive and unequivocal waiver of the plaintiff's mental-health privilege as the law required; the plaintiff's arguably misleading responses to opposing counsel's questions regarding a previous diagnosis of depression did not amount to a "decisive" and "unequivocal" waiver of the mental-health privilege, and the plaintiff's decision to answer the deposition question posed to the plaintiff (whether the plaintiff suffered from a history of depression), rather than object to the question at the time the issue of depression was raised, did not constitute an explicit waiver of the privilege. Mincey v. Ga. Dep't of Cmty. Affairs, 308 Ga. App. 740, 708 S.E.2d 644 (2011) (decided under former O.C.G.A. § 24-9-21).

Communication with psychologist.

- Since the psychologist-patient privilege set forth in O.C.G.A. § 43-39-16 arises only when the patient voluntarily seeks treatment, the communications between a mother and a psychologist in the course of a court-ordered mental evaluation were not privileged, and there was no error in admitting evidence of that evaluation. In re L.H., 236 Ga. App. 132, 511 S.E.2d 253 (1999), overruled in part by State v. Herendeen, 279 Ga. 323, 613 S.E.2d 647 (2005) (decided under former O.C.G.A. § 24-9-21).

Defendant failed to show that trial counsel's failure to object to the admission of court-appointed psychologists' statements was indicative of ineffectiveness and was not a conscious and deliberate trial strategy. Johnson v. State, 255 Ga. App. 544, 566 S.E.2d 353 (2002), overruled in part by State v. Herendeen, 279 Ga. 323, 613 S.E.2d 647 (2005) (decided under former O.C.G.A. § 24-9-21).

Communication with referred therapist for evaluation in sexual abuse case was privileged.

- Although the mother had been referred to the therapist for evaluation in the sexual abuse case, the mother's communications with the therapist during therapy were privileged under former O.C.G.A. § 24-9-21; the therapist provided mental health treatment to the mother as the therapist had seen the mother for counseling for two and a half years, the mother had not missed a session, and the mother found the treatment to have been beneficial. In the Interest of I.M.G., 276 Ga. App. 598, 624 S.E.2d 236 (2005) (decided under former O.C.G.A. § 24-9-21).

Psychologist-patient privilege applied to treatment records, regardless of whether that treatment was voluntary; since treatment of children had been directed by a case plan and a juvenile court, an in camera inspection of records sought in a criminal prosecution arising out of facts developed in the dependency investigation was proper, but the case was remanded for the trial court to consider in the court's examination the established parameters of the psychotherapist-patient privilege. Herendeen v. State, 268 Ga. App. 113, 601 S.E.2d 372 (2004), aff'd, 279 Ga. 323, 613 S.E.2d 647 (2005) (decided under former O.C.G.A. § 24-9-21).

Communication with licensed associate professional counselor via grief journal.

- Widow's grief journal was privileged because the journal was created as part of a treatment plan developed by both the licensed associate professional counselor, acting as an agent for the licensed professional counselor, and the licensed professional counselor and the journal's contents were communicated to the associate professional counselor as part of the widow's therapy. Gwinnett Hosp. Sys. v. Hoover, 337 Ga. App. 87, 785 S.E.2d 918 (2016).

Cross-examination of therapist limited.

- In a prosecution for child molestation, the trial court did not err by limiting the defendant's cross-examination of the child's therapist and thereby preventing the defendant from engaging in a fishing expedition to dredge up evidence of domestic problems totally unrelated to the act of molestation. Atkins v. State, 243 Ga. App. 489, 533 S.E.2d 152 (2000) (decided under former O.C.G.A. § 24-9-21).

Refreshing recollection of defense psychologist improperly.

- Trial court erred in permitting the state, on cross-examination, to have the defense psychologist refresh the psychologist's recollection, thereby effectively impeaching the defendant, by use of a privileged and confidential communication to the defense attorney's investigator; but because the impermissibly refreshed recollection was entirely consistent with, and cumulative of, other competent evidence, the error was harmless. Revera v. State, 223 Ga. App. 450, 477 S.E.2d 849 (1996) (decided under former O.C.G.A. § 24-9-24).

Communications between Physician and Patient

Patient-physician communications.

- Confidential communications excluded from testimony do not include those made by a patient to a physician. Collins v. Howard, 156 F. Supp. 322 (S.D. Ga. 1957) (decided under former Code 1933, § 38-418).

Trial court did not err in admitting the testimony of a family practice physician from whom the defendant sought psychiatric referral two days after an alleged rape and who also consulted with the victim and attempted an examination of her pelvic area. Barnes v. State, 171 Ga. App. 478, 320 S.E.2d 597 (1984) (decided under former O.C.G.A. § 24-9-21).

Defendant offered no evidence that the information the defendant provided in the medical questionnaire was ever imparted to a medical professional so it could not be said that the document constituted a privileged communication within the meaning of paragraphs (5) or (6) of former O.C.G.A. § 24-9-21. Manning v. State, 231 Ga. App. 584, 499 S.E.2d 650 (1998) (decided under former O.C.G.A. § 24-9-21).

If nurse is agent of hospital rather than communicant's doctor, the doctor's privilege will not protect communications made to the nurse. Myers v. State, 251 Ga. 883, 310 S.E.2d 504 (1984) (decided under former O.C.G.A. § 24-9-21).

In the plaintiff's suit against various medical providers for their alleged negligence during the delivery of the plaintiff's daughter, because some of the documents requested by the medical providers could be both relevant and non-privileged, the trial court erred by concluding that all of the mental health documents other than the produced billing documents were privileged, and any relevant and non-privileged documents should be produced even if redactions were necessary; however, because the appellate court was unable to complete the review of the documents, the case was remanded to the trial court for an in camera review to separate privileged versus non-privileged information and provide a redacted copy. Brown v. Howard, 334 Ga. App. 182, 778 S.E.2d 810 (2015).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under Code 1933, § 38-418, and former O.C.G.A. §§ 24-9-21 and24-9-24 are included in the annotations for this Code section.

Court order or subpoena did not abrogate privilege created by statute relating to the confidentiality of the patient-psychiatrist relationship; any response to a subpoena or court order must take these provisions into consideration. 1974 Op. Att'y Gen. No. U74-86 (decided under former Code 1933, § 38-418).

Attorneys employed by state agencies.

- Although state agencies may employ persons with legal training and experience to serve as administrative legal service officers, those persons may not provide legal advice or representation to the agency, and no attorney-client relationship or privilege arises between the legal services officer and other agency officers or employees, or the agency itself. 1995 Op. Att'y Gen. No. 95-1 (decided under former O.C.G.A. §§ 24-9-21 and24-9-24).

ADVISORY OPINIONS OF THE STATE BAR

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under Code 1933, § 38-419 are included in the annotations for this Code section.

It is ethically proper for a lawyer to reveal the confidences or secrets of clients in any proceedings in which revelation may be necessary to defend the lawyer against charges of professional misconduct. Adv. Op. No. 80-27 (November 21, 1980) (decided under former Code 1933, § 38-419).

RESEARCH REFERENCES

Am. Jur. 2d.

- 81 Am. Jur. 2d, Witnesses, §§ 273, 293, 325, 427, 431, 436, 449, 450, 505.

19A Am. Jur. Pleading and Practice Forms, Physicians, Surgeons, and Other Healers, § 163.

Interference with Attorney-Client Relationship, 19 POF2d 335.

Protected Communication Between Physician and Patient, 45 POF2d 595.

Existence of Attorney-Client Relationship, 48 POF2d 525.

Proof of Waiver of Attorney-Client Privilege, 32 POF3d 189.

Proof of Basis for, and Grounds for Lifting, Work Product Protection Against Discovery, 39 POF3d 1.

C.J.S.

- 27 C.J.S., Discovery, §§ 5, 18, 19. 32 C.J.S., Evidence, § 500. 98 C.J.S. (Rev), Witnesses, §§ 242 et seq., 350, 355, 391, 396, 404, 438, 457, 458.

ALR.

- Admissibility of statements by attorney out of court as to probability of verdict or decision adverse to client, 8 A.L.R. 1334.

Right to recover property held by public authorities as evidence for use in a criminal trial, 13 A.L.R. 1168.

Applicability and effect in suit for alienation of affections of rule excluding confidential communications between husband and wife, 36 A.L.R. 1068; 82 A.L.R. 825.

Effect of knowledge of third person acquired by overhearing or seeing communication between husband and wife upon rule as to privileged communication, 63 A.L.R. 107.

Privilege as to communications to attorney in connection with drawing of will, 64 A.L.R. 144; 66 A.L.R.2d 1302.

Concession, admission, or statement by defendant's attorney in criminal case as obviating necessity of introducing evidence on the point, 70 A.L.R. 94.

Expression of willingness by witness that another should testify as waiver of privilege in respect of latter's testimony, 72 A.L.R. 148.

Refusal of attorney to disclose identity of, whereabouts of, or other information relating to, his client as contempt, 101 A.L.R. 470.

Attorney's comment on opposing party's refusal to permit introduction of, or to offer, privileged testimony, or to permit privileged witness to testify, 116 A.L.R. 1170.

Attorney-client privilege as affected by wrongful or criminal character of contemplated acts or course of conduct, 125 A.L.R. 508.

Physician-patient, attorney-client, or priest-penitent privilege as applicable in nonjudicial proceeding or investigation, 133 A.L.R. 732.

Evidence: attorney-client privilege as applicable to communications between attorney and client's agent, employee, spouse, or relative, 139 A.L.R. 1250.

Attorney-client privilege as applied to communications in presence of two or more persons interested in the subject matter to which the communications relate, 141 A.L.R. 553.

Right of attorney to introduce evidence, and to cross-examine, in summary proceeding against him by, or in interest of, his client, 141 A.L.R. 655.

Right to insist that opponent's claim of privilege shall be made in presence of jury, or to ask him if he is willing to waive privilege, 144 A.L.R. 1007.

Evidence: statement or report by servant or agent to master or principal, in respect of matters then or afterward involved in litigation, as a privileged communication, 146 A.L.R. 977.

Withdrawal, during same trial, of waiver of privilege of confidential communication, 158 A.L.R. 219.

Right of one against whom testimony is offered to invoke privilege of communication between others, 2 A.L.R.2d 645.

Conversations between husband and wife relating to property or business as within rule excluding private communications between them, 4 A.L.R.2d 835.

"Communications" within testimonial privilege of confidential communications between husband and wife as including knowledge derived from observation by one spouse of acts of other spouse, 10 A.L.R.2d 1389.

Discovery or inspection of trade secret, formula, or the like, 17 A.L.R.2d 383.

Court's power to determine, upon government's claim of privilege, whether official information contains state secrets or other matters disclosure of which is against public interest, 32 A.L.R.2d 391.

Effect of divorce or annulment on competency of one former spouse as witness against other in criminal prosecution, 38 A.L.R.2d 570.

Party's waiver of privilege as to communications with counsel by taking stand and testifying, 51 A.L.R.2d 521.

Privilege as to communications to attorney in connection with drawing of will, 66 A.L.R.2d 1302.

Waiver of attorney-client privilege by personal representative or heir of deceased client or by guardian of incompetent, 67 A.L.R.2d 1268.

Calling accused's counsel as a prosecution witness as improper deprivation of right to counsel, 88 A.L.R.2d 796.

Husband or wife as competent witness for or against co-offender with spouse, 90 A.L.R.2d 648.

Discovery, inspection, and copying of photographs of article or premises the condition of which gave rise to instant litigation, 95 A.L.R.2d 1061.

Persons other than client or attorney affected by, or included within, attorney-client privilege, 96 A.L.R.2d 125; 31 A.L.R.4th 1226.

Construction of statute creating privilege against disclosure of communications made to stenographer or confidential clerk, 96 A.L.R.2d 159.

Right of corporation to assert attorney-client privilege, 98 A.L.R.2d 241; 26 A.L.R.5th 628, 27 A.L.R.5th 76.

Applicability of attorney-client privilege to communications with respect to contemplated tortious acts, 2 A.L.R.3d 861.

Waiver of privilege as regards one physician as a waiver as to other physicians, 5 A.L.R.3d 1244.

Testamentary capacity as affected by use of intoxicating liquor or drugs, 9 A.L.R.3d 15.

Attorney-client privilege as affected by communications between several attorneys, 9 A.L.R.3d 1420.

Attorney-client privilege as affected by its assertion as to communications, or transmission of evidence, relating to crime already committed, 16 A.L.R.3d 1029.

Disclosure of name, identity, address, occupation, or business of client as violation of attorney-client privilege, 16 A.L.R.3d 1047.

Commencing action involving physical condition of plaintiff or decedent as waiving physician-patient privilege as to discovery proceedings, 21 A.L.R.3d 912.

Pretrial testimony or disclosure on discovery by party to personal injury action as to nature of injuries or treatment as waiver of physician-patient privilege, 25 A.L.R.3d 1401.

Power of trustee in bankruptcy to waive privilege of communications available to bankrupt, 31 A.L.R.3d 557.

Propriety and prejudicial effect of comment by counsel as to refusal to permit introduction of privileged testimony, 32 A.L.R.3d 906.

Privilege against self-incrimination as ground for refusal to produce noncorporate documents in possession of person asserting privilege, but owned by another, 37 A.L.R.3d 1373.

Privilege in judicial or quasi-judicial proceedings, arising from relationship between psychiatrist or psychologist and patient, 44 A.L.R.3d 24.

Defense attorney as witness for his client in state criminal case, 52 A.L.R.3d 887.

Prosecuting attorney as a witness in criminal case, 54 A.L.R.3d 100.

Applicability of attorney-client privilege to matters relating to drafting of nonexistent or unavailable nontestamentary documents, 55 A.L.R.3d 1322.

Refusal to answer questions before state grand jury as direct contempt of court, 69 A.L.R.3d 501.

Discovery, in medical malpractice action, of names of other patients to whom defendant has given treatment similar to that allegedly injuring plaintiff, 74 A.L.R.3d 1055.

Discovery of hospital's internal records or communications as to qualifications or evaluations of individual physician, 81 A.L.R.3d 944.

Modern status of interspousal tort immunity in personal injury and wrongful death actions, 92 A.L.R.3d 901.

Competency of one spouse to testify against other in prosecution for offense against child of both or either, 93 A.L.R.3d 1018.

Effect, on competency to testify against spouse or on marital communication privilege, of separation or other marital instability short of absolute divorce, 98 A.L.R.3d 1285.

Privilege of newsgatherer against disclosure of confidential sources or information, 99 A.L.R.3d 37.

Spouse's betrayal or connivance as extending marital communications privilege to testimony of third person, 3 A.L.R.4th 1104.

Communication between unmarried couple living together as privileged, 4 A.L.R.4th 422.

Applicability of attorney-client privilege to evidence or testimony in subsequent action between parties originally represented contemporaneously by same attorney, with reference to communication to or from one party, 4 A.L.R.4th 765.

Disqualification of attorney because member of his firm is or ought to be witness in case - modern cases, 5 A.L.R.4th 574.

Testimonial privilege for confidential communications between relatives other than husband and wife - state cases, 6 A.L.R.4th 544; 62 A.L.R.5th 629.

Testimony before or communications to private professional society's judicial commission, ethics committee, or the like, as privileged, 9 A.L.R.4th 807.

Existence of spousal privilege where marriage was entered into for purpose of barring testimony, 13 A.L.R.4th 1305.

Applicability of attorney-client privilege to communications made in presence of or solely to or by third person, 14 A.L.R.4th 594.

Attorney-client privilege as extending to communications relating to contemplated civil fraud, 31 A.L.R.4th 458.

Privilege as to communications between lay representative in judicial or administrative proceedings and client, 31 A.L.R.4th 1226.

Presence of child at communication between husband and wife as destroying confidentiality of otherwise privileged communication between them, 39 A.L.R.4th 480.

Statute of limitations applicable to third person's action against psychiatrist, psychologist, or other mental health practitioner, based on failure to warn persons against whom patient expressed threats, 41 A.L.R.4th 1078.

Constitutionality, with respect to accused's rights to information or confrontation, of statute according confidentiality to sex crime victim's communications to sexual counselor, 43 A.L.R.4th 395.

Right of independent expert to refuse to testify as to expert opinion, 50 A.L.R.4th 680.

Insured-insurer communications as privileged, 55 A.L.R.4th 336.

Communications between spouses as to joint participation in crime as within privilege of interspousal communications, 62 A.L.R.4th 1134.

Attorney-client privilege: who is "representative of the client" within state statute or rule privileging communications between an attorney and the representative of the client, 66 A.L.R.4th 1227.

Involuntary disclosure or surrender of will prior to testator's death, 75 A.L.R.4th 1144.

Application of attorney-client privilege to electronic documents, 26 A.L.R.6th 287.

Determination of whether a communication is from a corporate client for purposes of the attorney-client privilege - modern cases, 26 A.L.R.5th 628.

What corporate communications are entitled to attorney-client privilege - modern cases, 27 A.L.R.5th 76.

What persons or entities may assert or waive corporation's attorney-client privilege - modern cases, 28 A.L.R.5th 1.

Waiver of evidentiary privilege by inadvertent disclosure - state law, 51 A.L.R.5th 603.

Discovery, in medical malpractice action, of names and medical records of other patients to whom defendant has given treatment similar to that allegedly injuring plaintiff, 66 A.L.R.5th 591.

"Communications" within testimonial privilege of confidential communications between husband and wife as including knowledge derived from observation by one spouse of acts of other spouse, 23 A.L.R.6th 1.

Application of attorney-client privilege to electronic documents, 26 A.L.R.6th 287.

Construction and application of fiduciary duty exception to attorney-client privilege, 47 A.L.R.6th 255.

Applicability of attorney-client privilege to communications made in presence of or solely to or by nonattorney consultants, professionals, and similar contractors, 66 A.L.R.6th 83.

Applicability of attorney-client privilege to communications made in presence of or solely to or by family members or companion, confidant, or friend of attorneys or client or attesting witnesses for client's will, 67 A.L.R.6th 341.

Construction and application of self-protection or self-defense exception to attorney-client privilege, 71 A.L.R.6th 249.

Waiver of evidentiary privilege by inadvertent disclosure - federal law, 159 A.L.R. Fed. 153.

Views of United States Supreme Court as to attorney-client privilege, 159 A.L.R. Fed. 243.

Applicability of attorney-client privilege to communications made in presence of or solely to or by nonattorney consultants, professionals, and similar contractors, 66 A.L.R.6th 83.

Applicability of attorney-client privilege to communications made in presence of or solely to or by family members or companion, confidant, or friend of attorneys or client or attesting witnesses for client's will, 67 A.L.R.6th 341.

Construction and application of self-protection or self-defense exception to attorney-client privilege, 71 A.L.R.6th 249.

Clawback/"Quick Peek" procedure under Fed. R. Evid. 502(d), 39 A.L.R. Fed. 3d Art. 2.

Insured-insurer communications as privileged - View that communications are privileged when they concern potential suit, 42 A.L.R.7th Art. 3.

Insured-insurer communications as privileged - View that communication must seek legal advice for attorney-client privilege to apply, 43 A.L.R.7th Art. 3.

Insured-insurer communications as privileged - generally, 43 A.L.R.7th Art. 6.

Waiver or loss of protection of state attorney "work product" Protection, 45 A.L.R.7th Art. 2.

Waiver of insured-insurer communications privilege, 48 A.L.R.7th Art. 7.

Sufficiency of evidence to establish prima facie crime-fraud exception to attorney-client privilege, post-U.S. v. Zolin, 491 U.S. 554, 109 S. Ct. 2619, 105 L. Ed. 2d 469, 89-1 U.S. Tax Cas. (CCH) P 9380, 27 Fed. R. Evid. Serv. 833, 63 A.F.T.R.2d 89-1483 (1989) - Federal Appellate Cases, 48 A.L.R. Fed. 3d Art. 3.

Scope of waiver or loss of protection of federal attorney "work product" protection under Fed. R. Civ. P. 26(b)(3), 48 A.L.R. Fed. 3d Art. 7.

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