Clergymen, Psychiatrists, Lawyers: The Farber Variations

 

In the Farber case, the defendant in the criminal prosecution, Dr. Jascalevich, subpoenaed documents and solicited testimony that he alleged was relevant, material, and unavailable from any other source, including the prosecution. Dr. Jascalevich's lawyers alleged that the reporter, Myron Farber, had obtained this material in the course of his investigation into deaths in Dr. Jascalevich's hospital, which subsequently led to the reopening of the police investigation and the indictment of Dr. Jascalevich. Among the evidence sought by the defense counsel were Farber's notes and his recollections of interviews with Dr. Stanley Harris, a surgeon at the hospital where the criminal activities are said to have occurred. Dr. Harris admitted having spoken to Farber five times before the New York Times articles appeared and before his reinterview by the prosecutor's office. In his interview with the prosecutor, Dr. Harris stated that his suspicions of Dr. Jascalevich were originally aroused by the unexplained deaths of some of his patients. The defense characterized Dr. Harris as Dr. Jascalevich's principal accusor.

(1) Suppose that Dr. Harris's communications were made to his clergyman or to his psychiatrist rather than to Myron Farber. If defense counsel subpoenaed the clergyman or psychiatrist, how would the court be likely to treat a claim of privilege asserted on Dr. Harris's behalf by the clergyman or doctor under a state common law privilege for communications to clergymen or psychiatrists similar to proposed Rules 504 and 506?

(2) Suppose Dr. Harris's communications were with Martin Ferber, Esq., his attorney. If defense counsel subpoenaed Attorney Ferber, how would the court be likely to treat a claim of privilege asserted by the lawyer on Dr. Harris's behalf under a state common law lawyer-client privilege similar to proposed Rule 503?

To the extent that you feel that the court would react differently to a claim of clergyman, psychiatrist, or lawyer-client privilege than it did to Farber's claim of reporter's privilege, what explains the difference?



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