Privilege Case Analysis

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The decision is important for holding, without any doubt, that the expectations of clients — that the attorney-client privilege is sacrosanct — will be enforced.

The court of appeals’ decision, by contrast, greatly threatened that expectation. The court of appeals concluded that its interpretation was, “necessary if the gears of the law are not to be embedded in the intractable sand of continual second-guessing and the attendant evidentiary hearings that … would inevitably follow.”

In fact, however, the court of appeals’ decision was the one that actually embedded the gears of law in second-guessing, and the Supreme Court’s reversal sets a plain and simple rule that is easy to follow — only the client can waive the attorney-client privilege.

The question now is what affect this will have on other privileges, specifically the physician-patient privilege.

The only case to rely on the court of appeals’ decision in this case was State v. Denis L.R., 2004 WI App 51, 678 N.W.2d 326. The petition for review in the Wisconsin Supreme Court is still pending.

In Denis L.R., a child who was purportedly a victim of sexual assault saw a mental health counselor. The child’s mother revealed statements made by the child to the counselor, to the child’s grandmother.

Denis L.R., charged with sexually assaulting the child, sought the counselor’s records. Citing the court of appeals’ decision in the case at bar, the court of appeals held that the mother had waived the child’s counselor-patient privilege by revealing the child’s statements to the grandmother.

Implicit in the court of appeals’ holding was that the right to invoke the privilege and the right to waive the privilege are coextensive. The court stated, “The parties do not dispute that [the mother], as [the child’s] guardian, may invoke or waive the counselor-patient privilege on [the child’s] behalf.” Id., 678 N.W.2d at 330.

That implicit assumption was not without support in the case law. In State v. Speese, 199 Wis.2d 597, 607-608, 545 N.W.2d 510, 515 (1996), the Wisconsin Supreme Court also assumed that a parent can invoke or waive a child’s physician-patient privilege. The court also assumed that, only if there is reason to believe that the interests of parent and child are not aligned, may a guardian ad litem be appointed to represent the interests of the child, and make the decision whether to invoke or waive the privilege.

After the decision in the case at bar, the assumption that a parent can waive a child’s physician-patient privilege may no longer be valid.

The decision is clear that, under Rule 905.11, only the “holder” of a privilege can waive it.

Rule 905.04(3)[governing the physician-patient privilege] provides, “The privilege may be claimed by the patient, by the patient’s guardian or conservator, or by the personal representative of a deceased patient (emphasis added).”

Rule 905.03(3)[the attorney-client privilege] provides “The privilege may be claimed by the client, the client’s guardian or conservator, the personal representative of a deceased client… (emphasis added).”

If the decision in the case at bar is taken to its logical conclusion, the right to “claim” the physician-patient privilege is not coextensive with the right to waive it, and Denis L.R. is incorrectly decided.

However, that is only if one looks solely at the text of the rules. There is an enormous difference in the history of the two privileges. With respect to the attorney-client privilege, the case law has consistently stated, throughout the history of this state, that only the client can waive the privilege, even though this case may be the first to squarely address the issue.

By contrast, it has long been standard operating procedure for parents to waive their children’s physician-patient privilege with little thought.

If a child is injured in an accident, step one towards obtaining a settlement is for the parent to sign a waiver, releasing the medical records to the purported tortfeasor’s attorneys. To hold that only the child, or a court-appointed guardian ad litem, may waive the privilege, would be contrary to those historical expectations, rather than consistent with them.

As noted, the case law assumes that the right to invoke the physician-patient privilege is coextensive with the right to waive it.

Given the decision in the case at bar, however, the statutory language is not consistent with that assumption. Unlike the attorney-client privilege, however, history is consistent with that assumption when the physician-patient privilege is involved.

	Related Links Wisconsin Court System Related Article Attorney-client privilege survives disclosure

However, just as in the case at bar, principles of agency law do not require that the child be bound by the parent’s waiver. It is not as though a person who receives records released by a parent reasonably believes that the child had any meaningful input into the decision to release them.

Nor is the purpose of the privilege promoted by permitting parents to waive a child’s privilege.

To paraphrase the court in the case at bar, “[Physician-patient or counselor-patient] communication is promoted when a [patient] may give [information] to a [health-care provider] without fearing that [his parent] will release the [information] to an adversary who will use the [information] against the [patient]. [Children] aware than a [parent’s] disclosure waives the privilege may keep critical information from their [health-care provider], thus thwarting the policy of the free flow of information that lies behind the [] privilege. One way to encourage a [patient] to communicate fully with his or her [health-care provider] is to hold that only the [patient] should be able waive the [] privilege.”

Thus, the correctness of the decision in Denis L.R. is questionable at this point. Some aspects of the decision in the case at bar militate in favor of its reversal, but others do not.

– David Ziemer

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