Hello everybody.  In the context of the management of apartment buildings, I thought it would be appropriate this month to review what privileges owners have to prevent others from testifying against them in any civil or criminal proceeding.

That thought occurred to me as I was thinking about former President Donald Trump and the legal problems that lie ahead for him—particularly in the arena of potential criminal prosecution.  Attorney generals, district attorneys, Congress and others in government are investigating him, his business deals, and his companies, to the Nth degree.

All of those government officials and agencies seem to be out to persecute him, prosecute him, get him convicted, have him punished, and incarcerate him.

To accomplish their objectives, they need evidence.  There are two major types of evidence: tangible things (such as writings, documents, tape recordings, and other tangible items that can be seen or heard), and witness testimony. 

In the early 1970s, the tangible item which helped to impeach Richard Nixon was the 18-1/2-minute gap in the tape of his recorded telephone conversation with Robert Haldeman.  Nixon asserted “executive privilege” as to the tape, but the United States Supreme Court, in a unanimous decision, determined that Nixon must produce the tape recording that special prosecutor Archibald Cox had subpoenaed.

With Mr. Trump, we can’t even begin to speculate what his tax returns, as evidence, will reveal. Maybe nothing at all, or perhaps a lot of incriminating evidence.  But those documents are largely set-in stone, so to speak, as Trump’s accountants have custody of them and none of the CPAs would dare alter them at this point in time, and Trump now has no ability to alter them either (assuming that he would even want to do so).

But a mammoth independent concern Trump should have is witness testimony by his own children.  There is no parent/child privilege with respect to private conversations between parents and their children.  So, whatever may be said between them, they are subject to disclosure in depositions, judiciary hearings, trials and certain other government proceedings.

With Trump, I suspect that he has discussed most everything of consequence, whether civil or criminal, including conduct that might incriminate him, with one or more of his children.  Yet without a privilege not to testify against one’s father, Don Jr., Ivanka, Eric and Tiffany could be compelled to testify about all the discussions they had with their dad.  

The lack of a parent/child privilege is something in law which has always bothered me.  In my view, nothing is more sacrosanct than private discussions between a parent and child, except perhaps private conversations between spouses.  

There definitely should be a parent/child privilege so as not to undermine the guidance parents give to children or the guidance children seek from their parents, and so as not to otherwise betray family trust between parents and children. 

From what I have observed over the decades in connection with apartment buildings, most owners are law abiding investors who endeavor to conduct their business ethically and with integrity.  Indeed, they have too much to lose to intentionally violate the myriad of federal, state and local laws that apply to residential income property.

However, occasionally, some transgressions will unintentionally (or even willfully) occur, such as underreporting rental income and overstating expenses.

So here are the various legal privileges that may allow owners to keep information confidential that they would not want to be made public, particularly in a courtroom.

The 5th Amendment: Probably all readers are aware that the Fifth Amendment of the United States Constitution affords a person the right not to testify in a criminal proceeding in a manner which might tend to incriminate him.  What is less commonly known is that the 5th Amendment against self-incrimination also applies in civil litigation so long as the party asserting the protection (and the court) reasonably believe that the information sought could be used against the individual in a criminal prosecution.

Lawyer/Client Privilege:  This privilege is fundamental to our system of justice.  Any statement made in confidence between an attorney and his client, or between an attorney and an individual who is seeking the attorney’s advice or consultation, is privileged against disclosure.  Neither the lawyer nor the individual can be compelled by the state, the federal government, a local agency or any American court to disclose those discussions.

The individual is designated as the “holder of the privilege,” meaning that only he has a right to waive it.  Then, if the client waives this privilege, his attorney can reveal the content of a confidential communication.  In other words, because the lawyer is not the holder of the privilege, he cannot disclose the discussions without his client’s consent. Exceptions exist where litigation is between the lawyer and a former client and under circumstances where the lawyer believes that the disclosure is necessary to prevent a criminal act likely to result in the death of, or substantial bodily harm to, another person.

Also, a client waives the attorney-client privilege if he uses a letter or other document he wrote to his attorney or his attorney wrote to him, to refresh his recollection for testimony he gives in a deposition or a trial.  Thus, lawyers typically counsel their clients not to utilize any confidential paperwork exchanged between the two of them to refresh the client’s memory prior to giving testimony. 

Communications Between Spouses:   There are two privileges concerning married individuals. One is the “spousal” privilege and the other is the “confidential marital communication” privilege.

The spousal privilege prevents a spouse from being called as a witness or having to testify against the other spouse who is a party to the proceedings.  Certain exceptions apply if the proceeding is brought between the spouses, but those are beyond the scope of this discussion.

The confidential marital communications privilege is related to the spousal privilege.  This privilege allows persons who were married at the time the confidential communications were made between them from having to testify as to those communications at a later time, even if they are thereafter divorced.

Physician/Patient Privilege:  As a general rule, neither a physician nor his patient can be compelled to disclose confidential communications between them concerning the health of the patient.  Exceptions include disclosures of confidential information where the lawsuit is brought between the physician and the patient or in which the patient has filed a lawsuit seeking reimbursement for personal injuries.

Psychotherapist/Patient Privilege:  A psychotherapist means a person who is, or is reasonably believed by the patient to be, a psychiatrist, a licensed psychologist, a licensed clinical social worker, a school psychologist, a licensed marriage and family therapist, a psychological assistant working under a licensed psychologist, a registered nurse who possesses a master’s degree in the psychiatric mental health field, among others.  The privilege is similar to that of the physician/patient privilege.  Generally, neither the psychotherapist nor the patient can be compelled to disclose confidential communications between them, even those concerning under reporting of rental income, if the topic comes up during the therapy session.

Clergy Privilege:  A privilege exists between a member of the clergy (including priests, ministers, rabbis, etc.) and his congregation or penitent involving confidential communications between the two.   Certain exceptions exist when the issue involves sexual assault.

Domestic Violence Counselor:  A privilege exists against the compelled disclosure of confidential communications between qualified “domestic violence counselor” and a victim of that violence.

Political Vote:  A person is privileged to refuse to disclose the nature of his vote at a public election where the voting is by secret ballot unless he votes illegally or he previously made a disclosure of his vote.

Trade Secrets:   While complicated, a business or an employee of the business has a privilege to refuse to disclose trade secrets concerning the business.

Privilege of the Press:  Ordinarily, a publisher, editor, reporter or other person connected with the press (whether radio, television, newspaper, etc.) cannot be held in contempt for refusing to disclose the source of information used in connection with his services.  That being said, apartment owners would be wise not to disclose incriminating information to the press.

Settlement Offers:  Evidence that a person has, in compromise or for humanitarian motives, furnished or has promised to furnish money or any other thing of value to another, is inadmissible at trial to prove the offeror’s liability.  In order to facilitate settlement of cases, the California State Legislature has enacted laws which encourage individuals to make monetary and other offers of settlement which, if not accepted by the recipient, cannot later be used by the recipient to prove culpability or an admission of wrongdoing.

Invasion of Privacy:  Both the federal and state Constitutions guaranty a person a right of privacy.  This area of the law is extremely complex.  A person’s right to privacy is often balanced against any important public interest to have the private fact or matter disclosed.  Areas in which a right of privacy is often claimed are personal banking affairs, associational privacy, privacy in sexual relations, personal financial information, business customer lists and tax returns.

While each of these areas has some aspect of a right of privacy involved, the privilege against disclosure is not absolute.  As noted above, the individual’s right to keep the information confidential must be balanced against the public interest for disclosure.  Based on that evaluation, a court will then determine whether or not the information must be disclosed.

Accountants/Clients: Surprisingly, communications between a client and his accountant (even a CPA) are not privileged.  For that reason, a client should be particularly careful when making statements to an accountant concerning past or present improprieties.  For example, a client who reveals to his CPA that he failed to report rents and fabricated expenses, should be aware that the accountant may be compelled to disclose that information by judicial process, such as during a deposition or at trial.  Accordingly, a client should be cautious when speaking with his accountant about known improprieties.

Parents/Children: As discussed at the outset of this article, there is no privilege by either a parent or the child from disclosing communications made between the two of them.  That is true no matter how confidential or private the communications may be.  What a pity.

 

Concluding Comments

Although other privileges exist, the most common ones which might apply to apartment owners are listed above.  The fact that neither the state, the federal government, nor the court can compel an individual to disclose certain confidential information distinguishes this country from many others.  Still, integrity and honesty remain the best policy.  

 

Dale Alberstone is a prominent real estate attorney who has specialized in real property and resident manager law for the past 40+ years.  He is also a former arbitrator for the American Arbitration Association.  

Mr. Alberstone has been awarded a 5-Star AV rating from Martindale-Hubbell, the 125-year-old national rating service of attorneys.  A 5-Star AV rating is the highest possible rating bestowed and reflects an attorney who has reached the heights of professional excellence and who is recognized for the highest levels of skill and ethical standards.

The foregoing article was authored on March 1, 2021.  It is intended as a general overview of California law only and may not apply to the reader’s particular case.  Readers are cautioned to consult a lawyer of their own selection with respect to any particular situation.

Questions of a general nature are warmly invited.  Address correspondence to Dale S. Alberstone, Esq., ALBERSTONE & ALBERSTONE, 269 S. Beverly Drive, Suite 1670; Beverly Hills, California 90212, or phone: (310) 277-7300.