Alabama Rules of Evidence

Rule 501. Privileges recognized only as provided.

Except as otherwise provided by constitution or statute or by these or other rules promulgated by the Supreme Court of Alabama, no person has a privilege to:

(1)   refuse to be a witness;

(2)   refuse to disclose any matter;

(3)   refuse to produce any object or writing; or

(4)   prevent another from being a witness or disclosing any matter or producing any object or writing.

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This introductory rule, serving as a preface to the evidentiary privileges, embraces the historic common law principle that no privilege exists where none has been granted. A party to a civil action, for example, generally has no privilege not to be a witness. Ala. Code 1975, § 12-21-163. See In re Sullivan, 283 Ala. 514, 219 So.2d 346, cert. denied, Sullivan v. Board of Comm’rs, 396 U.S. 826 (1969). Additionally, a civil litigant has no general privilege to refuse to produce an object or a writing. Rarden v. Cunningham, 136 Ala. 263, 34 So. 26 (1903). Similarly, a witness has no common law privilege generally not to exhibit his or her body. King v. State, 100 Ala. 85, 14 So. 878 (1894); C. Gamble, McElroy’s Alabama Evidence § 361.05 (4th ed. 1991). Generally, a witness has no privilege to refuse to answer a question on the ground that the answer would tend to be humiliating or degrading. Ex parte Boscowitz, 84 Ala. 462, 4 So. 279 (1888). One likewise, at least as a beginning principle, has no privilege to require that a communication not be disclosed merely because it was made or received in confidence. Phillips v. Alabama Dep’t of Pensions & Sec., 394 So.2d 51 (Ala.Civ.App.1981). See C. Gamble, McElroy’s Alabama Evidence § 386.01 (4th ed. 1991).

Despite this beginning no-privilege premise, the law grants privileges. Witnesses, for example, have a constitutional privilege against self-incrimination. International Bhd. of Teamsters v. Hatas, 287 Ala. 344, 252 So.2d 7 (1971) (privilege of witnesses in civil actions). See C. Gamble, McElroy’s Alabama Evidence § 373.01 (4th ed. 1991). An accused has a constitutional and statutory privilege not to be compelled to give incriminating evidence. U.S. Const. Amend. V; Ala. Const. Art. I, § 6 (1901); Ala. Code 1975, § 12-21-220. Additionally, privileges are provided in the rules following Rule 501 and in other rules promulgated by the Supreme Court of Alabama.

A prime example of a privilege existing outside these Alabama Rules of Evidence is the “work product” privilege found in Ala.R.Civ.P. 26(b)(3). See Hickman v. Taylor, 329 U.S. 495 (1947); C. Gamble, McElroy’s Alabama Evidence § 290.02(15) (4th ed. 1977). A number of statutory privileges will continue to exist outside these Rules of Evidence. See, e.g., Ala. Code 1975, §§ 32-7-12 (motor vehicle accident reports), 34-24-59(c) (hospital disciplinary action reports). See generally J. Colquitt, Alabama Law of Evidence § 5.1 (1990).

Rule 502. Attorney-client privilege.

(a)   Definitions. As used in this rule:

(1)   “Client” is a person, public officer, or corporation, association, or other organization or entity, either public or private, that is rendered professional legal services by an attorney, or that consults an attorney with a view to obtaining professional legal services from the attorney.

(2)   “Representative of the client” is: (i) a person having authority to obtain professional legal services or to act on legal advice rendered on behalf of the client or (ii) any other person who, for the purpose of effecting legal representation for the client, makes or receives a confidential communication while acting in the scope of employment for the client.

(3)   “Attorney” is a person authorized, or reasonably believed by the client to be authorized, to engage in the practice of law in any state or nation.

(4)   “Representative of the attorney” is a person employed by the attorney to assist the attorney in rendering professional legal services.

(5)   A communication is “confidential” if not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those to whom disclosure is reasonably necessary for the transmission of the communication.

(b)   General rule of privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made for the purpose of facilitating the rendition of professional legal services to the client, (1) between the client or a representative of the client and the client’s attorney or a representative of the attorney, or (2) between the attorney and a representative of the attorney, (3) by the client or a representative of the client or the client’s attorney or a representative of the attorney to an attorney or a representative of an attorney representing another party concerning a matter of common interest, (4) between representatives of the client and between the client and a representative of the client resulting from the specific request of, or at the express direction of, an attorney, or (5) among attorneys and their representatives representing the same client.

(c)   Who may claim the privilege. The privilege may be claimed by the client, the client’s guardian or conservator, the personal representative of a deceased client, or the successor, trustee, or similar representative of a corporation, association, or other organization, whether or not in existence. The person who was the attorney, or the attorney’s representative, at the time of the communication may claim the privilege, but only on behalf of the client. The attorney’s or the representative’s authority to do so is presumed in the absence of evidence to the contrary.

(d)   Exceptions. There is no privilege under this rule:

(1)   FURTHERANCE OF CRIME OR FRAUD. If the services of the attorney were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud;

(2)   CLAIMANTS THROUGH THE SAME DECEASED CLIENT. As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction;

(3)   BREACH OF DUTY BY AN ATTORNEY OR CLIENT. As to a communication relevant to an issue of breach of duty by an attorney to the client or by a client to the client’s attorney;

(4)   DOCUMENT ATTESTED BY AN ATTORNEY. As to a communication relevant to an issue concerning the intention or competence of a client executing an attested document to which the attorney is an attesting witness, or concerning the execution or attestation of such a document;

(5)   JOINT CLIENTS. As to a communication relevant to a matter of common interest between or among two or more clients if the communication was made by any of them to an attorney retained or consulted in common, when offered in an action between or among any of the clients.

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Alabama’s preexisting attorney-client privilege is a creature of the common law. See Ex parte Enzor, 270 Ala. 254, 117 So.2d 361 (1960). That common law privilege, however, has been embodied in a statute. Ala. Code 1975, § 12-21-161. See C. Gamble, McElroy’s Alabama Evidence § 388.02 (4th ed. 1991). Except as otherwise may be specifically indicated, Rule 502 is intended to embody the same privilege as set out in this former case law and statutory law. This rule, consequently, supersedes the preexisting statute. While generally carrying forward the former Alabama law concerning the attorney-client privilege, the language of Rule 502 is based largely upon the corresponding principle as expressed under the Uniform Rules of Evidence. See Unif.R.Evid. 502.

Rule 502 is not intended to describe or in any way limit the attorney work-product doctrine. See Ala.R.Civ.P. 26(b)(3); Hickman v. Taylor, 329 U.S. 495 (1947); Ex parte May, 393 So.2d 1006 (Ala.1981).

Subsection (a)(1). Definition of “client.” This subsection defines “client” to include those nonindividual entities that communicate with an attorney in the course of securing, or while seeking, legal services. The term includes, among others, corporations, governmental bodies, and nonincorporated associations and organizations. While antecedent Alabama law has not extended the client status to all these entities, including them is within the spirit of those cases in which the issue has been considered. Historic Alabama law, for example, has recognized that a corporation may be a client. Ex parte Great Am. Surplus Lines Ins. Co., 540 So.2d 1357 (Ala.1989); Jay v. Sears, Roebuck & Co., 340 So.2d 456 (Ala. Civ. App. 1976); Garner v. Wolfinbarger, 430 F.2d 1093 (5th Cir. 1970), cert. denied, 401 U.S. 974 (1971). The term “legal services” is to be defined broadly to include, among other things, the providing of mere legal advice.

As under prior Alabama law, the privilege provided by Rule 502 is available to one who consults an attorney for the purpose of retaining the attorney. It is available even if the attorney is never actually employed. Rule 502, like former Alabama law, requires, in a case in which the attorney is not employed, that the communication be made “with a view to” employing the attorney. See State v. Tally, 102 Ala. 25, 15 So. 722 (1894); C. Gamble, McElroy’s Alabama Evidence § 390.03 (4th ed. 1991). The preexisting statute expresses the same requirement – that the communications be given by reason of “anticipated employment as attorney.” Ala. Code 1975, § 12-21-161.

The employment of the attorney does not have to relate to litigation. To give rise to the privilege, however, the client must be consulting an attorney who is acting in the capacity of providing legal advice and counsel. Seeking an attorney’s advice as to purely business or personal matters does not activate the privilege. See, e.g., State v. Marshall, 8 Ala. 240 (1845); Modern Woodmen of Am. v. Watkins, 132 F.2d 352 (5th Cir. 1942). See also C. Gamble, McElroy’s Alabama Evidence § 389.01 (4th ed. 1991).

Subsection (a)(2). Definition of “representative of the client.” Alabama has long recognized a principle, carried forward in Rule 502, that the attorney-client privilege applies to communications made by the client’s servant or agent to the attorney. Vacalis v. State, 204 Ala. 345, 86 So. 92 (1920). See C. Gamble, McElroy’s Alabama Evidence § 393.03 (4th ed. 1991). The privilege also applies to vicarious communications made in behalf of a corporate client. Jay v. Sears, Roebuck & Co., 340 So.2d 456 (Ala. Civ. App. 1976). While Alabama has had few appellate cases dealing with corporations claiming the privilege, Rule 502 was drafted in light of significant federal case law in this area. Historically, the federal position was that the privilege applied only to corporate employees who possessed authority to obtain professional legal services or to act on advice given by the attorney. This so-called “control group test” was rejected in Upjohn Co. v. United States, 449 U.S. 383 (1981). Rule 502 follows this decision in expanding the scope of the corporate attorney-client privilege beyond those employees within the control group, to include anyone who “for the purpose of effecting legal representation for the client, makes or receives a confidential communication while acting in the scope of employment for the client.”

Subsection (a)(3). Definition of “attorney.” Rule 502 uses the term “attorney,” instead of “lawyer,” because that is the term used in both the Alabama privilege statute and the Alabama case law. See Ala. Code 1975, § 12-21-161. As under the Alabama case law, this privilege generally attaches only to advice sought from, and communications made to, one authorized to practice law. See Frederick v. State, 39 So. 915 (Ala.1905). The authorization to practice may be in any state or nation. This rule is different from preexisting Alabama practice, however, in that under this rule the privilege attaches even if the one consulted is not authorized to practice law, so long as the would-be client reasonably believes the one consulted possesses such authority. Hawes v. State, 88 Ala. 37, 7 So. 302 (1890).

The drafters anticipate that Rule 502 will apply to the situation where an attorney, authorized to practice law in one jurisdiction, is consulted by a client in another jurisdiction in which the attorney is not authorized to practice. The privilege has been held to apply, for example, to a patent attorney who was licensed in Ohio but was giving advice in California. Paper Converting Mach. Co. v. FMC Corp., 215 F.Supp. 249 (E.D.Wis.1963). See also Georgia-Pacific Plywood Co. v. United States Plywood Corp., 18 F.R.D. 463 (S.D.N.Y.1956).

Subsection (a)(4). Definition of “representative of the attorney.” Under preexisting Alabama case law and statutory law, the only representative held within the scope of the privilege was the attorney’s clerk. See Richards v. Lennox Indus., Inc., 574 So.2d 736 (Ala.1990); Hawes v. State, 88 Ala. 37, 68, 7 So. 302, 313 (1890); Ala. Code 1975, § 12-21-161; C. Gamble, McElroy’s Alabama Evidence § 390.02 (4th ed. 1991). Rule 502 applies the privilege to any person employed by the attorney to assist in rendering professional legal services. See United States v. Kovel, 296 F.2d 918 (2d Cir. 1961) (accountant); W. Schroeder, J. Hoffman, & R. Thigpen, Alabama Evidence § 5-2 (1987).

The phrase “employed by the attorney” is not intended to require that the “representative of the attorney” be on the attorney’s standing payroll. Rather, the term includes any person engaged by the attorney to assist in rendering professional legal services. See United States v. Kovel, 296 F.2d 918 (2d Cir. 1961) (accountant qualifying as one employed by the attorney).

Subsection (a)(5). Definition of “confidential.” This rule, like the preexisting law, defines “confidential” in terms of intent. The attorney-client privilege applies only to those communications that are confidential in the sense that the person or persons making them did not intend that they be disclosed to third persons other than representatives of the client or the lawyer. See Hughes v. Wallace, 429 So.2d 981 (Ala.1983).

Under Rule 502, communications one knowingly makes in the presence of a third person generally are not privileged. Exceptions to this arise, of course, if the third person is a representative of either the client or the lawyer or is otherwise necessary for the communication. Alabama case law has held that the presence of a necessary third person will not preclude the communication from being “confidential” for purposes of the privilege. Branch v. Greene County Bd. of Educ., 553 So.2d 248 (Ala.Civ.App.1988). See C. Gamble, McElroy’s Alabama Evidence § 392.01 (4th ed. 1991).

Section (b). General rule of privilege. Preexisting Alabama law has long affirmed the principle that the privilege covers confidential communications made by the client’s representative to the attorney. It likewise protects such communications when procured by the client from the representative for transmission to the client’s attorney for the purpose of seeking legal advice or legal services. Vacalis v. State, 204 Ala. 345, 86 So. 92 (1920). See Ex parte Great Am. Surplus Lines Ins. Co., 540 So.2d 1357 (Ala.1989).

The breadth of the privilege provided by Rule 502 is expanded significantly as to the persons within its scope. As to subject matter scope, however, the drafters intend that the same expansive interpretation that has been applied under prior Alabama case law be given to the term “communication,” so as to include within that term any knowledge that the attorney acquires from the client and any advice or counsel given to the client. See Cooper v. Mann, 273 Ala. 620, 143 So.2d 637 (1962) (privilege held to apply to all knowledge acquired by an attorney even if acquired through sight alone); Ala. Code 1975, § 12-21-161 (including within the attorney-client privilege testimony as to “any matter or thing, knowledge of which may have been acquired from the client, or as to advice or counsel to the client”). Compare Alabama Rules of Professional Conduct, Rule 1.6(a) (expansively prohibiting a lawyer from revealing “information relating to representation of a client”).

Subsection (b)(3) should be broadly applied to cover any mutual interest that may promote the trial strategies of the parties. See United States v. McPartlin, 595 F.2d 1321 (7th Cir.), cert. denied, 444 U.S. 833 (1979).

Historically, a decreasing majority of courts has applied the attorney-client privilege to statements made by an insured to the insurer, particularly where an attorney has been hired and the statement is made in anticipation of litigation. Some courts have explained this result upon the theory that the insurer is the agent of the insured, while others have theorized that the insurer is the agent of the attorney. An ever-growing minority of courts, however, has concluded that insured-insurer communications are not protected generally by the attorney-client privilege. See Langdon v. Champion, 752 P.2d 999 (Alaska 1988); J. Ludington, Annotation, Insured-Insurer Communications as Privileged, 55 A.L.R.4th 336 (1987). Rule 502 adopts this minority position that the insured’s communications to the insurer are not privileged under Rule 502(b)(4). Communications from the insured fall within the attorney-client privilege only if made directly to the attorney for the insured or the attorney’s representative. This, of course, has no impact upon whether such communication falls within the separate work product privilege.

Because an overbroad application of subsection (b)(4) could lead to abuse in a corporate or business setting, the committee feels it necessary to restate the following safeguards: the burden is upon the party asserting the privilege to prove it; the privilege is to be strictly applied, because it is in derogation of the search for truth; the judge has the responsibility for determining if the privilege applies and should not normally decide the question based solely upon the fact that the client asserts it; the communication may be made only between representatives of the client who are within the “control group” or whose duties are closely related to the matter about which the communication is made; the claimant must prove that the communication was treated within the corporation as confidential; and the person claiming the privilege must show that the communication was made “for the purpose of effecting legal representation for the client.” See subsection (a)(2).

Section (c). Who may claim the privilege. As under traditional Alabama practice, the client is the one entitled to assert the privilege. Mallory v. State, 283 Ala. 636, 219 So.2d 888 (1969). See C. Gamble, McElroy’s Alabama Evidence § 394.01 (4th ed. 1991). While the privilege remains that of the client, it may be asserted by others who represent the client. A guardian or conservator of the client, for example, may claim the privilege. It likewise may be asserted by a deceased client’s personal representative. The privilege, when held by a corporation, association, or organization, may be claimed by the representative, successor, or trustee of the entity holding the privilege. Additionally, the attorney to whom the communication is made is presumed to possess the authority to claim the privilege on behalf of the client.

The attorney’s assertion of the privilege, on behalf of the client, would appear consistent with the Alabama privilege statute, which proclaims the attorney to be incompetent and noncompellable as a witness to relate privileged matters. See Ala. Code 1975, § 12-21-161. It has long been the federal rule, of course, that the privilege may be asserted by the client’s attorney. See Fisher v. United States, 425 U.S. 391 (1976).

The attorney, or the attorney’s representative, may not claim the privilege except in behalf of the client. The committee assumes that the ethics of the profession require the attorney to assert the privilege. See Alabama Rules of Professional Conduct, Rule 1.6. See also Klitzman, Klitzman & Gallagher v. Krut, 744 F.2d 955 (3d Cir.1984). Compare Fed.R.Evid. 503(c) (rejected) advisory committee’s note (containing this same observation as to the ethical obligation to assert the privilege). The committee would likewise assume that the privilege is to be asserted by the attorney’s representative, particularly in light of the fact that Rule 5.3, Alabama Rules of Professional Conduct, makes the attorney responsible for ensuring that nonlawyer employees of the attorney or the attorney’s firm comply with rules governing the attorney’s professional conduct.

Section (d). Exceptions. There is no privilege under this rule in certain situations.

(1)   Furtherance of crime or fraud. Preexisting Alabama law recognizes that the attorney-client privilege does not apply to confidential communications when the client’s purpose is to secure legal advice regarding the commission of a crime or a fraud. See Ex parte Griffith, 278 Ala. 344, 178 So.2d 169 (1965), cert. denied, 382 U.S. 988 (1966) (“quickie divorce” case in which court observes that the perpetration of fraud is outside the scope of the privilege); Ex parte Enzor, 270 Ala. 254, 117 So.2d 361 (1960) (holding that the attorney-client privilege does not apply to communications in which advice is sought to cover future or contemplated crimes); C. Gamble, McElroy’s Alabama Evidence § 389.02 (4th ed. 1991); J. Colquitt, Alabama Law of Evidence § 5.2 (1990). The party asserting fraud has the burden of satisfying the court that the client knew or reasonably should have known that what the client planned to commit was fraud. The client clearly may consult the attorney about conduct, the legality of which is debatable, and still be protected if it later proves to be criminal or fraudulent. While those charging the furtherance of a crime or a fraud have the burden of proving the charge, the purpose of the consultation may appear clear from the content of statements made to the attorney by the client. See Sawyer v. Stanley, 241 Ala. 39, 1 So.2d 21 (1941).

Under this rule, the question whether the attorney’s services are sought for the purpose of aiding the client or someone else in committing or planning to commit a crime or a fraud is to be answered by a “reasonable person” standard – i.e., whether the client knew or reasonably should have known that the contemplated conduct was a crime or a fraud.

(2)   Claimants through the same deceased client. When parties claim through the same deceased client, a relevant communication between the client and the client’s attorney cannot be asserted as privileged. Alabama historically has limited this exception to instances when the two parties claim under a will. Stappas v. Stappas, 271 Ala. 33, 122 So.2d 393 (1960). Subsection (d)(2), however, expands the preclusion to apply whether the parties claim through intestate succession or through inter vivos transactions.

(3)   Breach of duty by an attorney or client. Subsection (d)(3) excludes from the privilege communications that are relevant to charges regarding an attorney’s breach of duty to the client or a client’s breach of duty to the attorney. While no prior Alabama cases specifically state this exclusion, it is consistent with those cases holding that the client may waive the privilege. Dewberry v. Bank of Standing Rock, 227 Ala. 484, 494, 150 So. 463, 471 (1933). Consistent with those cases, the client may be viewed as waiving the privilege either by breach of duty to the attorney or by charging that the attorney breached the duty owed to the client.

The privilege falls when the client sues the attorney on an allegation of breach of duty. The drafters intend the same result when the client sues a representative of the attorney, such as an accountant or a clerk.

(4)   Document attested by an attorney. Subsection (d)(4) exempts an attesting attorney-witness from the privilege, in regard to certain testimony as to the attested document. This principle is consistent with prior Alabama law. See White v. State, 86 Ala. 69, 5 So. 674 (1889). This principle is likewise consistent with Alabama cases holding that the privilege does not attach to communications that the attorney, in the discharge of the attorney’s duty, is of necessity obliged to make public. Ex parte Griffith, 278 Ala. 344, 351, 178 So.2d 169, 176 (1965), cert. denied, 382 U.S. 988 (1966). See also Ala. Code 1975, § 34-3-20.

The attesting-witness exception has been interpreted by some courts as setting aside the attorney-client privilege as to all matters relevant to the validity of the attested document. The language of subsection (d)(4) is intended to reject this view and to embrace what the committee feels to be the preferable rule, that the attorney who acts as an attesting witness can divulge only information received in the attorney’s capacity as an attesting witness and cannot divulge information received in the attorney’s capacity as a lawyer. See Estate of Kime, 144 Cal. App. 3d 246, 193 Cal. Rptr. 718 (1983). Subsection (d)(4) is based upon a similar provision in a corresponding California statute. See Cal. Evid. Code § 959. The committee agrees with the following sentiments of the California Law Revision Commission, appearing in the comments to that California statute:

“This exception relates to the type of communication about which an attesting witness would testify. The mere fact that an attorney acts as an attesting witness should not destroy the lawyer-client privilege as to all statements made concerning the document attested; but the privilege should not prohibit the lawyer from performing the duties expected of an attesting witness.”

(5)   Joint clients. The joint client exception provided by subsection (d)(5) has been long recognized by Alabama cases. See, e.g., Parish v. Gates, 29 Ala. 254 (1856); Nationwide Mut. Ins. Co. v. Smith, 280 Ala. 343, 194 So.2d 505 (1966). This exception has been described thusly:

“When two or more persons acting together become clients of the same lawyer as to a matter of common interest, none of them has, as against another of them, the attorney-client privilege with respect to the matter. Each of them, however, has the attorney-client privilege as against outsiders.” C. Gamble, McElroy’s Alabama Evidence § 392.03 at 935 (4th ed. 1991).

Rule 503. Psychotherapist-patient privilege.

(a)   Definitions. As used in this rule:

(1)   A “patient” is a person who consults or is examined or interviewed by a psychotherapist.

(2)   A “psychotherapist” is (A) a person licensed to practice medicine in any state or nation, or reasonably believed by the patient so to be, while regularly engaged in the diagnosis or treatment of mental or emotional conditions, including alcohol or drug addiction or (B) a person licensed as a psychologist under the laws of any state or nation, while similarly engaged.

(3)   A communication is “confidential” if not intended to be disclosed to third persons other than those present to further the interest of the patient in the consultation, examination, or interview, or persons reasonably necessary for the transmission of the communication, or persons who are participating in the diagnosis and treatment under the direction of the psychotherapist, including members of the patient’s family.

(b)   General rule of privilege. A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications, made for the purposes of diagnosis or treatment of the patient’s mental or emotional condition, including alcohol or drug addiction, among the patient, the patient’s psychotherapist, and persons who are participating in the diagnosis or treatment under the direction of the psychotherapist, including members of the patient’s family.

(c)   Who may claim the privilege. The privilege may be claimed by the patient, the patient’s guardian or conservator, or the personal representative of a deceased patient. The person who was the psychotherapist at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the patient.

(d)   Exceptions. (1) PROCEEDINGS FOR HOSPITALIZATION. There is no privilege under this rule for communications relevant to an issue in proceedings to hospitalize the patient for mental illness, if the psychotherapist has determined, in the course of diagnosis or treatment, that the patient is in need of hospitalization.

(2)   EXAMINATION BY ORDER OF COURT. If the court orders an examination of the mental or emotional condition of a patient, whether a party or a witness, communications made in the course thereof are not privileged under this rule with respect to the particular purpose for which the examination is ordered unless the court orders otherwise.

(3)   ACCUSED IN CRIMINAL CASE. There is no privilege under this rule as to an accused in a criminal case who raises the defense of insanity.

(4)   BREACH OF DUTY ARISING OUT OF PSYCHOTHERAPIST-PATIENT RELATIONSHIP. There is no privilege under this rule as to an issue of breach of duty by the psychotherapist to the patient or by the patient to the psychotherapist.

(5)   Child custody cases. There is no privilege under this rule for relevant communications offered in a child custody case in which the mental state of a party is clearly an issue and a proper resolution of the custody question requires disclosure.

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Alabama statutory law has long recognized a psychologist-client privilege. Ala. Code 1975, § 34-26-2. This particular statutory privilege was amended in 1979 to include psychiatrists within its coverage. The legislative act creating the privilege stipulates that it is to be placed upon the same basis as the privilege that arises by law between an attorney and a client; consequently, Rule 503 is modeled after the rule providing for the corresponding attorney-client privilege. See C. Gamble, McElroy’s Alabama Evidence § 414.01 (4th ed. 1991). The language of Rule 503 is taken largely from the Uniform Rules of Evidence. See Unif.R.Evid. 503.

It should be noted that the Alabama Rules of Evidence contain no general physician-patient privilege. Such a privilege has never been recognized in Alabama, either by the legislature or by the courts. See Duncan v. State, 473 So.2d 1203 (Ala.Crim.App.1985). See also C. Gamble, McElroy’s Alabama Evidence § 413.01 (4th ed. 1991); J. Colquitt, Alabama Law of Evidence § 5.10 (1990). Communications with a physician may fall within the Rule 503 psychotherapist privilege if the physician is a licensed psychologist or is a practicing psychiatrist. See Ex parte Rudder, 507 So.2d 411 (Ala.1987).

Subsection (a)(1). Definition of “patient.” The preexisting Alabama statutory privilege concerning psychologists used the term “client,” rather than “patient,” to refer to the holder of the privilege. Rule 503 uses the term “patient,” because that word more clearly reflects the fact that the preexisting statute was amended to apply to psychiatrists. Additionally, however, the term “patient” is used in virtually all other state versions of the present privilege. See, e.g., Fla. Stat. Ann. § 90.503; Miss.R.Evid. 503; Wis. Stat. Ann. § 905.04. See also B.W. Best, Annotation, Privilege, in Judicial or Quasi-Judicial Proceedings, Arising from Relationship Between Psychiatrist or Psychologist and Patient, 44 A.L.R.3d 24 (1972).

Subsection (a)(2). Definition of “psychotherapist.” This term includes licensed psychologists and psychiatrists. This composite description is used to embrace both of those professional groups that were included under the preexisting statute to which Rule 503 is the successor. Additionally, the term “psychotherapist” is the most common term used in stating this privilege as it exists in other states. See, e.g., Haw.R.Evid. 504.1; N.M.R.Evid. 504; Or.R.Evid. 504.

The Rule 503 privilege applies so long as the patient reasonably believes the person to be licensed to practice medicine. That principle is similar to a principle applicable to the attorney-client privilege. See Rule 502(a)(3). No such principle, however, applies to persons not psychologists but reasonably believed to be psychologists; persons acting as, or believed to be, psychologists must be in fact licensed for the privilege to apply. This distinction, made also both in the Uniform Rules of Evidence and in the corresponding provision deleted from the Federal Rules of Evidence, is said to be “justified by the number of persons, other than psychiatrists, purporting to render psychotherapeutic aid and the variety of their theories.” Fed.R.Evid. 504 (deleted) (advisory committee note).

Subsection (a)(3). Definition of “confidential.” The predecessor statute, establishing the privileges applicable to both psychologists and psychiatrists, provided that these were to be placed upon the same basis as the attorney-client privilege. Ala. Code 1975, § 34-26-2. Accordingly, to define “confidential communication,” Rule 503(a)(3) uses language similar to that found in the corresponding rule setting forth the attorney-client privilege. See Rule 502(a)(5). This then means that the question of confidentiality is largely one of intent as judged by the facts; consequently, communications made in the known presence of third parties are not privileged unless those third parties are necessary to either the rendition of the services or the transmission of the communication. The term “communication” is given a broad interpretation so as to include the medical records created during the psychotherapist-patient relationship. See Ex parte Rudder, 507 So.2d 411 (Ala.1987).

Section (b). General rule of privilege. As recognized in the comments to section (a), the psychotherapist-patient privilege is to be applied on largely the same basis as the attorney-client privilege. Compare Ala.R.Evid. 502(b). This necessarily means that the breadth of the privilege extends well beyond the psychotherapist and the patient themselves to encompass others who are necessary to the communication or delivery of the psychological services.

Section (c). Who may claim the privilege. As under Rule 502, where the privilege belongs to the client, so here it belongs to the patient. While the privilege remains that of the patient, it may be asserted by others who represent the patient. A guardian or conservator of the patient, for example, may claim the privilege. It likewise may be asserted by a deceased patient’s personal representative. The psychotherapist to whom the communication is made is presumed to have the authority, in the absence of evidence to the contrary, to claim the privilege in behalf of the patient. Compare Ala.R.Evid. 502(c).

Section (d). Exceptions.

(1)   Proceedings for hospitalization. Communications relevant to an issue in commitment proceedings do not fall within the protection of the Rule 503 privilege if the psychotherapist involved has determined that hospitalization is necessary.

(2)   Examination by order of court. No privilege attaches to communications made during a court-ordered examination of a patient’s mental or emotional condition. The scope of the exception, however, is limited generally to communications relevant to the particular purpose for which the judge ordered the examination.

This exception is consistent with several corresponding principles applicable in the area of criminal law and criminal procedure. The preexisting statutory psychiatrist-patient or psychologist-patient privilege is not applicable to reports serving as the basis for the court-authorized release of a person from a state mental hospital after having been found not guilty by reason of insanity, mental disease, or defect. Ala. Code 1975, § 15-16-69.

The Alabama Rules of Criminal Procedure authorize a court-ordered examination into a defendant’s competency to stand trial. Ala.R.Crim.P. 11.2(a)(1). The results of such an examination are admissible on the issue of such competency but are not admissible during the ultimate trial for the charged offense. Ala.R.Crim.P. 11.2(b)(1).

Examinations to determine the defendant’s mental condition at the time of the offense may likewise be ordered by the court. Ala.R.Crim.P. 11.2(b)(2). The results of such examinations are admissible so long as the defendant has not subsequently withdrawn his or her plea of not guilty by reason of mental disease or defect. Ala.R.Crim.P. 11.2(b)(2). Even if there remains a plea of not guilty by reason of insanity, statements by the defendant during such an examination – as well as testimony or evidence based upon or derived from such statements – are admissible only as to the issue of the defendant’s mental condition at the time of the offense and only if the defendant has introduced testimony as to such mental condition. Ala.R.Crim.P. 11.2(b)(2).

(3)   Accused in criminal case. This rule continues Alabama’s judicially created exception to the statutory psychotherapist-patient privilege. The privilege is unavailable in a criminal trial where the defendant raises the defense of insanity. See Free v. State, 455 So.2d 137 (Ala.Crim.App.1984); Magwood v. State, 426 So.2d 918 (Ala.Crim.App.1982), aff’d, 426 So.2d 929 (Ala.), cert. denied, 462 U.S. 1124 (1983).

In many respects, this exception is based upon the concept of waiver and has been long recognized in the American legal system. See United States v. Meagher, 531 F.2d 752, cert. denied, 429 U.S. 853 (1976) (holding that insanity plea opens the door to correspondence between the defendant and his or her treating psychiatrist). Additionally, this exception is consistent with several provisions found in the Alabama Rules of Criminal Procedure. An accused’s offering proof as to his or her mental condition at the time of the offense, for example, opens the door to statements made to a psychiatrist or psychologist during a court-ordered examination. Ala.R.Crim.P. 11.2(b)(2). Reports of court-appointed psychiatrists or psychologists are to be made available to both the defense attorney and the district attorney. Ala.R.Crim.P. 11.5(a). Both the defense and the prosecution are to be given access to the names and addresses of all psychiatrists or psychologists who have examined either the defendant or evidence in the case, along with the results of mental examinations, scientific tests, experiments, or comparisons. This latter disclosure includes access to written reports or statements. Ala.R.Crim.P. 11.4(b). Compare Ark.R.Evid. 503(d)(3); N.D.R.Evid. 503(d)(3); Alaska R.Evid. 504(d)(1); Del.R.Evid. 503(d)(3); Fla.Stat.Ann. § 0.503(4)(c); Haw.R.Evid. 504.1(d)(3); Idaho R.Evid. 503(d)(3); Me.R.Evid. 503(e)(3); Miss.R.Evid. 503(f); Neb.Rev.Stat. § 27-504(4)(c); Nev.Rev.Stat. § 49.245(3); N.M.R.Evid. 504(d)(3); Okla. Stat. tit. 12, § 2503(D)(3); Or.R.Evid. 504(4)(b); Vt.R.Evid. 503(d)(3); Wis.Stat. Ann. § 905.04(4)(c).

(4)   Breach of duty arising out of psychotherapist-patient relationship. The Alabama statute upon which Rule 503 is based calls for the psychotherapist-patient privilege to be applied as the attorney-client privilege is applied. Ala. Code 1975, § 34-26-2. Accordingly, a “breach of duty” exception is included here, just as such an exception is included in regard to the attorney-client privilege. See Ala.R.Evid. 502(d)(4). Cf. Fed.R.Evid. 503(d)(3).

(5)   Child custody cases. It is arguable that any person seeking custody has thereby placed his or her mental or emotional condition at issue. Accordingly, this rule continues Alabama’s preexisting, judicially created, exception to the psychotherapist-patient privilege. See Harbin v. Harbin, 495 So.2d 72 (Ala.Civ.App.1986) (holding that the psychologist-patient privilege yields when the mental state of a party to a custody case is clearly in controversy); Matter of Von Goyt, 461 So.2d 821 (Ala.Civ.App.1984) (psychologist-patient privilege inapplicable to protect medical records of litigant in child custody case).

Rule 503A. Counselor-client privilege.

(a)   Definitions. As used in this rule:

(1)   The term “client” means a person who, for the purpose of securing professional counseling services, consults with a licensed professional counselor or a certified counselor associate. It also means a person who, for the purpose of securing counseling services as the result of either sexual assault or family violence, consults with a victim counselor.

(2)   A “licensed professional counselor” is any person who holds himself or herself out to the public by any title or description of services incorporating the words “licensed professional counselor” or “licensed counselor”; who offers to render professional counseling services to individuals, groups, organizations, corporations, institutions, government agencies, or the general public, implying that the person is licensed and trained, experienced or expert in counseling; and who holds a current, valid license to engage in the private practice of counseling.

(3)   A communication is “confidential” if it is not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional counseling services to the client or those to whom disclosure is reasonably necessary for the transmission of the communication.

(4)   “Counselor associate” is any person who has been certified by the Alabama Board of Examiners in Counseling to offer counseling services under the supervision of a licensed professional counselor.

(5)   “Counseling services” consist of all acts and behaviors that constitute the “practice of counseling” as that term is defined in this rule.

(6)   The “practice of counseling” involves the rendering or offering to render counseling services such as, among others, the following methods and procedures employed by the counseling profession:

(A)   Counseling. Assisting a person, through the counseling relationship, to develop understanding of personal problems, to define goals, and to plan action reflecting the person’s interests, abilities, aptitudes, and needs as these are related to personal-social concerns, education progress, and occupations and careers.

(B)   Appraisal activities. Selecting, administering, scoring and interpreting instruments designed to assess an individual’s aptitudes, attitudes, abilities, achievements, interests, and personal characteristics, but not including the use of projective techniques in the assessment of personality.

(C)   Counseling, guidance, and personnel consulting. Interpreting or reporting upon scientific fact or theory in counseling, guidance, and personnel services to provide assistance in solving some current or potential problems of individuals, groups, or organizations.

(D)   Referral activities. The evaluating of data to identify problems and to determine advisability of referral to other specialists.

(E)   Research activities. The designing, conducting, and interpreting of research with human subjects.

(F)   Victim counseling. The providing of counseling to victims for any emotional or psychological impact resulting from a sexual assault or family violence.

(7)   “Victim counselor” means any employee or supervised volunteer of a victim counseling center or other agency, business, or organization that provides counseling to victims, who is not affiliated with a law enforcement agency or prosecutor’s office and whose duties include treating victims for any emotional or psychological condition resulting from a sexual assault or family violence.

(8)   “Sexual assault” includes any sexual offense set out in Ala. Code 1975, §§ 13A-6-60 through 13A-6-70.

(9)   “Family violence” means the occurrence of one or more of the following acts between family or household members:

(A)   Attempting to cause or causing physical harm.

(B)   Placing another in fear of imminent serious physical harm.

(10)   The designation “family or household members” encompasses children, spouses, former spouses, persons of the opposite sex living as spouses now or in the past, or persons 60 years of age or older living in the same household and related by blood or marriage.

(11)   “Victim counseling center” means a private organization or unit of a government agency which has as one of its primary purposes the treatment of victims for any emotional or psychological condition resulting from a sexual assault or family violence.

(b)   General rule of privilege. A client has a privilege to refuse to disclose, and to prevent any other person from disclosing, a confidential communication made for the purpose of facilitating the rendition of counseling services to the client.

(c)   Who may claim the privilege. The privilege may be claimed by the client, the client’s guardian or conservator, or the personal representative of a deceased client. The person who was the licensed counselor, counselor associate, or victim counselor at the time of the communication is presumed to have authority to claim the privilege, but only on behalf of the client.

(d)   Exceptions.

(1)   PROCEEDINGS FOR HOSPITALIZATION. In proceedings to hospitalize the client for mental illness, there is no privilege under this rule for communications relevant to an issue in those proceedings if the counselor or counselor associate has determined, in the course of counseling, that the client is in need of hospitalization.

(2)   EXAMINATION BY ORDER OF COURT. If the court orders an examination of the mental or emotional condition of a client, whether a party or a witness, communications made in the course thereof are not privileged under this rule with respect to the particular purpose for which the examination is ordered, unless the court orders otherwise.

(3)   WHEN THE CLIENT’S CONDITION IS AN ELEMENT OF A CLAIM OR A DEFENSE. There is no privilege under this rule as to a communication relevant to an issue regarding the mental or emotional condition of the client, in any proceeding in which the client relies upon the condition as an element of the client’s claim or defense, or, after the client’s death, in any proceeding in which any party relies upon the condition as an element of the party’s claim or defense.

(4)   BREACH OF DUTY ARISING OUT OF THE COUNSELOR-CLIENT RELATIONSHIP. There is no privilege under this rule as to an issue of breach of duty by the counselor, counselor associate, or victim counselor to the client or by the client to the counselor, counselor associate, or victim counselor.

(5)   VICTIM COUNSELING IN CIVIL CASES. There is no privilege under this rule in civil cases as to a communication made to facilitate victim counseling when the person conducting the counseling is neither a licensed professional counselor nor a counselor associate, except that under no circumstances may a victim counselor or a victim be compelled to provide testimony in any proceeding that would identify the name, address, location, or telephone number of a “safe house,” abuse shelter, or other facility that provided temporary emergency shelter to the victim of the offense or transaction that is the subject of the proceeding, unless the facility is a party to the proceeding.

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While the psychotherapist-patient privilege of Rule 503 is based generally upon a preexisting Alabama statute, it nevertheless represents a nationally recognized privilege principle. Such a privilege is expressed in the evidence rules of virtually every state that has adopted rules of evidence based upon either the Federal Rules of Evidence or the Uniform Rules of Evidence. In contrast, however, the Rule 503A counselor-client privilege, created largely by combining two preexisting Alabama statutes, is generally not found in the primary body of evidence law nationally. The committee takes no position as to the merits of those statutes. Rather, their provisions are incorporated into the Alabama Rules of Evidence based upon a continuing philosophy that greater trial competency will result if, wherever feasible, external statutory rules of evidence are merged into these rules.

Rule 503A may be interpreted to include all licensed counselors who provide counseling services; however, its foundation lies in two separate statutes of a more specific applicability. The first is that statute creating, at least in criminal proceedings, a privilege for communications between the victim of sexual assault or family violence and a victim counselor. Ala. Code 1975, §§ 15-23-40 to -46. The second, and the one of broader application, is that statute creating a privilege for communications, in all types of cases, between a licensed counselor or counselor associate and a client. Ala. Code 1975, §§ 34-8A-1 to -21. Rule 503A is intended to supersede these preexisting statutes, except as might otherwise be expressly provided.

It should be noted that there basically are two types of persons whose counseling may be brought within the present privilege. First, there is the licensed professional counselor or the counselor associate, both of whom are either licensed or certified by the Alabama Board of Examiners in Counseling and who provide a broad range of counseling services. Second, there is the employee or supervised volunteer who provides counseling for any emotional or psychological condition resulting from a sexual assault or family violence. The field of operation for this privilege is broader for the first of these two groups. For example, the privilege arising in regard to communications with a victim counselor can generally be asserted only in a criminal case. If the victim counselor happens also to qualify as a licensed professional counselor or as a counselor associate, however, then the privilege could be asserted even in a civil case.

Subsection (a)(1). Definition of “client.” A client is anyone who consults either a licensed professional counselor or a certified counselor associate for the rendition of professional counseling services. See Ala. Code 1975, § 34-8A-21. Additionally, the term “client” includes a person who consults a victim counselor for assistance in overcoming adverse emotional or psychological effects of a sexual assault or family violence. See Ala. Code 1975, § 15-23-41(2).

Subsection (a)(2). Definition of “licensed professional counselor.” The definition of “licensed professional counselor” is taken from the statute upon which the privilege is based. See Ala. Code 1975, § 34-8A-2(1). See also Ala. Code 1975, § 34-8A-7 (containing the statutory requirements for obtaining a professional counselor’s license). The statutory language limiting this privilege to those who render professional counseling services in private practice “for a fee” is abandoned.

Subsection (a)(3). Definition of “confidential.” The major variation in language made during the conversion of this privilege from statutory to rule form is in the definition of “confidential” as applied to communications. This is a change in form, rather than substance, and is intended to make the language in Rule 503A conform to the language found in other rules creating privileges, particularly the rule dealing with the psychotherapist-patient privilege. Compare Ala.R.Evid. 503(a)(3). Whether a communication is confidential largely constitutes a question of intent, to be measured by the objective facts. If it is intended that the communication be disclosed to third parties, then generally there is no privilege. Communication in the presence of a known third party, for example, generally destroys the privilege, because in that situation it is generally apparent that no confidentiality was intended. Rule 503A provides, however, that the presence of a third party does not destroy the privilege if disclosure to that person is necessary to the client-counselor communication.

As it is in regard to other privileges, the term “communication” is to be broadly interpreted. Consistent with the preexisting statute applicable to the victim-counselor privilege, the Rule 503A privilege extends to preclude the production of records when they concern confidential communications. See Ala. Code 1975, § 15-23-42(a).

Subsection (a)(4). Definition of “counselor associate.” The counselor associate is included, along with the licensed professional counselor, within the purview of the present privilege. The definition is taken from the preexisting statute. Ala. Code 1975, § 34-8A-2(2). In addition to being appropriately certified by the Board of Examiners in Counseling, the counselor associate must be acting under the supervision of a licensed professional counselor.

Subsection (a)(5). Definition of “counseling services.” The privilege arises when the client consults with the counselor for the delivery of counseling services as part of the practice of counseling. See Ala. Code 1975, § 34-8A-2(4).

Subsection (a)(6). Definition of “practice of counseling.” The “practice of counseling” includes, but is not limited to, those methods and procedures of counseling listed in the rule. This list of illustrations is taken directly from the statute upon which the privilege is based. Ala. Code 1975, § 34-8A-2(5). Included within the term is counseling victims “for any emotional or psychological condition resulting from a sexual assault or family violence.” Compare Ala. Code 1975, § 15-23-41(8).

Under the original statute upon which Rule 503A is based, the privilege applicable to licensed professional counselors and counselor associates was limited to those in the private practice of counseling, i.e., those rendering counseling services in private practice, for a fee, monetary or otherwise. Ala. Code 1975, § 34-8A-2(5). Rule 503A discontinues that limitation.

Subsection (a)(7). Definition of “victim counselor.” This definition is taken from the statute upon which those provisions of Rule 503A relating to victim counselors are based. Ala. Code 1975, § 15-23-41(8). This particular capacity arises only as to counseling for an emotional or psychological condition resulting from sexual assault or family violence.

Subsection (a)(8). Definition of “sexual assault.” This definition conforms completely to that found in the predecessor statute that originally created the victim-counselor privilege. See Ala. Code 1975, § 15-23-41(3).

Subsection (a)(9). Definition of “family violence.” This definition is taken from the statutory language upon which the present privilege is based. See Ala. Code 1975, § 15-23-41(4).

Subsection (a)(10). Definition of “family or household members.” This term, which limits those against whom family violence may be committed, retains its preexisting statutory definition. See Ala. Code 1975, § 15-23-41(5).

Subsection (a)(11). Definition of “victim counseling center.” This definition, taken from statutory language, serves to modify the victim-counselor segment of the Rule 503A privilege. See Ala. Code 1975, § 14-23-41(7).

Section (b). General rule of privilege. The language used to state the counselor-client privilege is similar to that used to state other privileges. Compare Ala.R.Evid. 503. This is consistent with the legislative mandate that the counselor-client privilege is to be placed upon the same basis as the attorney-client privilege. See Ala. Code 1975, § 34-8A-21. No privilege arises, of course, unless the counselor is consulted in his or her capacity as a provider of counseling services. Additionally, the privilege applies only to communications that are confidential.

Like other rules dealing with privileges, Rule 503A is written so as to preclude any assertion of the third-party eavesdropper rule, created at common law, under which a third-party eavesdropper generally could relate any privileged conversation the eavesdropper had overheard. Compare Ala.R.Evid. 503(b). This result is accomplished by use of the words “to prevent any other person from disclosing.”

Section (c). Who may claim the privilege. This privilege belongs to the person who sought the counseling. This means that it may be asserted by the client (or victim) or the client’s legal representative. Additionally, the counselor may assert the privilege on behalf of the client or victim.

As a general rule, the privilege does not belong to the counselor. There is no question that this is true with regard to licensed professional counselors and counselor associates, because they are treated, for purposes of privilege, as attorneys are treated. Ala. Code 1975, § 34-8A-21. Compare Ala.R.Evid. 502(c). The preexisting statute regarding victim counselors, however, contained language indicating that the counselor held an independent right to assert the privilege. See Ala. Code 1975, § 15-23-42(a). Rule 503A does not incorporate that language, in order to be consistent with all other rules setting out privileges; however, it makes one exception. That exception is that in no case may the victim counselor be required to provide testimony that would disclose the name, address, location, or telephone number of a safe house, abuse shelter, or other facility, providing temporary emergency shelter to the victim of the offense or transaction that is the subject of the civil or criminal proceeding, unless the facility is a party to the proceeding. See Ala.R.Evid. 503A(d)(5).

Section (d). Exceptions.

Subsection (1). Proceedings for hospitalization. Communications relevant to an issue in commitment proceedings do not fall within the protection of the present privilege if the licensed professional counselor or counselor associate has determined that hospitalization is needed. Compare Ala.R.Evid. 503(d)(1). This exception would be unnecessary with regard to victim counselors, because no privilege regarding them may be asserted in civil cases. See Ala.R.Evid. 503A(d)(5). Compare Ala. Code 1975, § 15-23-42.

Subsection (2). Examination by order of court. No privilege attaches to communications made during a court-ordered examination of a client’s mental or emotional condition. The scope of the exception, however, is limited generally to communications relevant to the particular purpose for which the judge ordered the examination. This exception is consistent with a similar exception to the psychotherapist-patient privilege. See Ala.R.Evid. 503(d)(2). It is envisioned, of course, that this exception rarely would be needed in the context of the victim counselor who is a nonprofessional employee or volunteer; this is because the court customarily would not order an examination by such a person. Additionally, one should remember that this Rule 503A privilege, as it relates to victim counselors, generally has no application in civil cases.

Subsection (3). When the client’s condition is an element of a claim or a defense. In any proceeding in which the client relies upon his or her mental or emotional condition, as an element of either a claim or a defense, the privilege does not protect communications that are relevant to that condition. This exception is identical to an exception to the psychotherapist-patient privilege. See Ala.R.Evid. § 503(d)(3). Compare Harbin v. Harbin, 495 So.2d 72 (Ala.Civ.App.1986) (holding that the psychologist-patient privilege is not applicable to protect communications that are relevant to show a party’s mental state in a custody case).

No need for this exception will arise in civil cases, in regard to victim counselors who do not qualify as either licensed professional counselors or certified counselor associates. This is because the privilege applies to communications made to such persons only when the communications are offered in a criminal case. See Ala.R.Evid. 503A(d)(4). Compare Ala. Code 1975, § 15-23-42.

Subsection (4). Breach of duty arising out of the counselor-client relationship. No privilege arises as to communications relevant to litigation in which the client sues the counselor for breach of duty or in which the counselor sues the client. This exception is similar to that found in the rule setting out the psychotherapist-patient privilege. See Ala.R.Evid. 503(d)(4). No such exception is expressly set out in the statute originally creating the counselor-client privilege; however, that statute does provide that the privilege is to be treated on a par with the attorney-client privilege and this latter privilege contains such an exception. See Ala.R.Evid. 502(d)(3). The victim counselor statute, which is the basis for recognizing the present privilege regarding victim counseling, in criminal cases, does contain an exception of this nature. The statute provides:

“[I]f a victim brings suit against a victim counselor or the agency, business, or organization in which the victim counselor was employed or served as a volunteer at the time of the counseling relationship and the suit alleges malpractice during the counseling relationship, the victim counselor may testify or produce records regarding confidential communications with the victim and is not liable for doing so.” Ala. Code 1975, § 15-23-43(b).

Subsection (5). Victim counseling in civil cases. This exception carries forward the preexisting statutory provision that the victim-counselor privilege does not apply in civil cases except as it might preclude the victim or counselor from divulging information as to the location of an emergency victim-services facility. See Ala. Code 1975, § 15-23-42. If the victim counselor qualifies as either a licensed professional counselor or a certified counselor associate, then this exception would not apply; accordingly, the confidential communications with the client/victim would be privileged in both civil and criminal cases.

Rule 504. Husband-wife privilege.

(a)   Definition of “confidential” communication. A communication is “confidential” if it is made during marriage privately by any person to that person’s spouse and is not intended for disclosure to any other person.

(b)   General rule of privilege. In any civil or criminal proceeding, a person has a privilege to refuse to testify, or to prevent any person from testifying, as to any confidential communication made by one spouse to the other during the marriage.

(c)   Who may claim the privilege. The privilege may be claimed by either spouse, the lawyer for either spouse in that spouse’s behalf, the guardian or conservator of either spouse, or the personal representative of a deceased spouse. The authority of those named to claim the privilege in the spouse’s behalf is presumed in the absence of evidence to the contrary.

(d)   Exceptions. There is no privilege under this rule:

(1)   PARTIES TO A CIVIL ACTION. In any civil proceeding in which the spouses are adverse parties.

(2)   FURTHERANCE OF CRIME. In any criminal proceeding in which the spouses are alleged to have acted jointly in the commission of the crime charged.

(3)   CRIMINAL ACTION. In a criminal action or proceeding in which one spouse is charged with a crime against the person or property of (A) the other spouse, (B) a minor child of either, (C) a person residing in the household of either, or (D) a third person if the crime is committed in the course of committing a crime against any of the persons previously named in this sentence.

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For historical perspective, it is useful to note that spouses were once incompetent to testify for or against each other in civil or criminal cases. The only remaining vestige of this marital disqualification or incompetency is found in a statute that provides: “The husband and wife may testify either for or against each other in criminal cases, but shall not be compelled so to do.” Ala. Code 1975, § 12-21-227. This statute is interpreted to mean that a spouse may take the witness stand against an accused spouse if he or she decides to do so. Such a witness may be characterized as competent, but not compellable. This principle is sometimes described as providing the witness spouse a privilege to testify or not. Such a privilege, however, is not to be confused with the privilege set forth in Rule 504. Even if a witness spouse decides to take the stand against an accused spouse, such a witness yet remains precluded generally from divulging confidential, inter-spousal communications of the accused spouse. The preexisting statutory and case law dealing with the marital disqualification or competency question stands unaffected by the adoption of Rule 504. See Arnold v. State, 353 So.2d 524 (Ala.1977); C. Gamble, McElroy’s Alabama Evidence § 103.01 (4th ed. 1991).

Section (a). Definition of “confidential” communication. Consistent with the language setting out other evidentiary privileges, the language of Rule 504 defines confidentiality in terms of the communicating spouse’s intent. No privilege arises unless the communicating spouse intends the communication to be confidential. This is fully consistent with preexisting Alabama law, which will continue to evolve the corresponding rules with regard to when the objective facts show intended confidentiality. See, e.g., Owen v. State, 78 Ala. 425 (1885); Harris v. State, 395 So.2d 1063 (Ala.Crim.App.1980), cert. denied, 395 So.2d 1069 (Ala.1981); C. Gamble, McElroy’s Alabama Evidence § 103.01(4) (4th ed. 1991).

Section (b). General rule of privilege. This section perpetuates Alabama’s preexisting husband-wife privilege for confidential communications. It should be noted that Alabama is among those states whose courts interpret the term “communication” as including acts and transactions that are both communicative and noncommunicative. Indeed, any act performed with the confidence of the marriage in mind has been held to be privileged. This rule is not intended to abrogate this expansive interpretation of the term “communication” to include any act that one spouse would not have committed in the presence of the other but for the confidential, husband-wife relationship. See Arnold v. State, 353 So.2d 524 (Ala.1977) (wife precluded from testifying in arson prosecution to her ride with accused husband around his burned building immediately after the fire); Cooper v. Mann, 273 Ala. 620, 143 So.2d 637 (1962). Several other states include noncommunicative acts, facts, conditions, and transactions within the protection of the privilege. See Smith v. State, 344 So.2d 915 (Fla.Dist.Ct.App.), cert. denied, 353 So.2d 679 (Fla.1977); State v. Robbins, 35 Wash. 2d 389, 213 P.2d 310 (1950); Menefee v. Commonwealth, 189 Va. 900, 55 S.E.2d 9 (1949). Other jurisdictions have limited the interpretation of “communication” to include only expressions – i.e., statements and acts that are communicative in nature. See, e.g., Pereira v. United States, 347 U.S. 1 (1954); People v. Krankel, 131 Ill.App.3d 887, 87 Ill. Dec. 75, 476 N.E.2d 777 (1985); State v. Smith, 384 A.2d 687 (Me.1978).

It is not required that the parties be married at the time the communication is offered as evidence. Rather, they must have been married at the time the communication occurred. See Long v. State, 86 Ala. 36, 5 So. 443 (1889).

Section (c). Who may claim the privilege. The inter-spousal privilege is recognized as belonging to both spouses rather than solely to the communicating spouse. While preexisting Alabama law on this point is not a model of clarity, there is preexisting case law suggesting that both the speaking and the receiving spouse may assert the privilege. See Cooper v. Mann, 273 Ala. 620, 143 So.2d 637 (1962) (both husband and wife, parties in the action, were permitted to raise the communication privilege as against discovery even though the wife received the requested information from her husband). Nothing in Rule 504 requires that the spouse asserting the privilege be a party to the proceedings in question. Compare Swoope v. State, 115 Ala. 40, 22 So. 479 (1897) (wife called by the prosecution, and state’s privilege objection sustained when accused husband asked about wife’s statements to the husband).

The privilege may be asserted in a spouse’s behalf by that spouse’s lawyer, guardian, or conservator, or by a deceased spouse’s personal representative. While there exists no preexisting Alabama authority on this point, it is consistent with at least one criminal appellate decision in which the prosecution was allowed to lodge a privilege objection in behalf of the state’s spouse-witness when she was asked about privileged matters by the husband’s defense counsel on cross-examination. See Swoope v. State, 115 Ala. 40, 22 So. 479 (1897).

A spouse may assert the privilege to prevent any person’s divulging the confidential communication. A third-party is thus precluded from relating a husband-wife communication that has been overheard by accident or by eavesdropping. This principle is inconsistent with historic Alabama practice, at least as evidenced by decisions from appellate courts other than the Alabama Supreme Court. See Howton v. State, 391 So.2d 147 (Ala.Crim.App.1980); Phillips v. State, 11 Ala.App. 168, 65 So. 673 (1914).

Section (d). Exceptions.

(1)   Parties to a civil action. If the spouses are adverse parties in a civil proceeding, it would appear unnecessary to protect their marital relationship from the disclosure of confidential communications between them. See E. Cleary, McCormick on Evidence § 84 (3d ed. 1984). An analogous exception is recognized within the attorney-client privilege for instances where clients jointly consult with the same attorney and then initiate legal action among themselves. See Ala.R.Evid. 502(d)(5). A similar exception is likewise common among the forms of the husband-wife privilege as adopted by the various states. Compare Alaska R.Evid. 505(a)(2)(A), Fla. Stat. Ann. § 90-504(3)(a), Idaho R.Evid. 504(d)(4), Me.R.Evid. 504(d)(4), Neb. Rev. Stat. § 27-505(3)(c) (limiting the exception to civil actions relating to divorce, annulment, or support), Nev. Rev. Stat. § 49.295(2)(a), N.M.R.Evid. 505(d)(3), Or.R.Evid. 505(4)(c), Wis. Stat. Ann. § 905.05(3)(a).

A similar but more limited exception is recognized, albeit almost by implication, under preexisting Alabama law. In divorce actions, one spouse historically has been permitted to relate statements of the other spouse, particularly when those statements go to prove adultery. See Lyall v. Lyall, 250 Ala. 635, 35 So.2d 550 (1948). Compare Hubbard v. Hubbard, 55 Ala.App. 521, 317 So.2d 489, cert. denied, 294 Ala. 759, 317 So.2d 492 (1975) (confessions of adultery from one spouse to the other admitted).

(2)   Furtherance of crime. Any inter-spousal communication falls outside the privilege if it is made in furtherance of a crime in which both spouses are engaged. As under the attorney-client privilege, communications in furtherance of criminal activity are not immune from disclosure. Compare Ala.R.Evid. 502(d)(1).

This rule is consistent with preexisting case law adopting an exception to the husband-wife privilege for communications between spouses relating to crimes in which they are jointly participating when the communications occur. State v. Browder, 486 So.2d 504 (Ala. Crim. App. 1986). This exception applies only to communications that are in furtherance of, or pertain to, the crime charged. The communications are nonprivileged, even if the testifying spouse’s only involvement in the crime charged is as an accessory after the fact. See United States v. Mendoza, 574 F.2d 1373 (5th Cir.), cert. denied, 439 U.S. 988 (1978).

(3)   Criminal action. Commentators have long suggested that grave injustice is avoided by precluding an assertion of the marital incompetency privilege – which may keep a witness spouse off the stand completely – in cases where the charged offense is committed against the witness spouse. 8 J. Wigmore, Wigmore on Evidence § 2239 (McNaughton rev. 1961). This position has been embraced by the Supreme Court of the United States. Wyatt v. United States, 362 U.S. 525 (1960) (denying accused’s motion to exclude wife’s testimony in Mann Act prosecution where she was the woman who was transported for immoral purposes). Such an exception to the marital incompetency or disqualification privilege was recognized in early Alabama decisions holding that the spouse’s testimony was compellable by the state in a case where the crime was committed against the spouse. See, e.g., State v. Neill, 6 Ala. 685 (1844); Clarke v. State, 117 Ala. 1, 23 So. 671 (1898). It would be reasonable to conclude that such compellability of the victim spouse would hold today in Alabama even after enactment of the competency statute, which provides that the privilege of testifying or not is solely that of the witness spouse (contrasted with the ability to divulge a confidential communication). See McCoy v. State, 221 Ala. 466, 129 So. 21 (1930).

Based upon this exception to the spousal incompetency rule, subsection (d)(3) accomplishes two things. First, it establishes the same exception in the area of husband-wife confidential communications – meaning that an accused spouse may not object to the witness spouse’s divulging confidential inter-spousal communications when they are offered in a criminal prosecution in which the witness spouse is the victim. Second, it expands the exception beyond crimes committed against the spouse, to include those committed against a minor child of either spouse and crimes committed against certain others. This exception is identical to an exception found in most jurisdictions that have conducted modern codification of their evidence rules. See Ark.R.Evid. 504(d), N.D.R.Evid. 504(d), Fla. Stat. Ann. § 90.504(3)(b), Haw. R. Evid. 505(c)(1), Idaho R. Evid. 504(d)(2), Miss.R.Evid. 504(d), Okla. Stat. tit. 12, § 2504(D), S.D. Codified Laws Ann. § 19-13-15, Vt.R.Evid. 504(d). See also Unif.R.Evid. 504(c). The term “child,” as used in subsection (d)(3), is not limited to a natural child. See Daniels v. State, 681 P.2d 341 (Alaska App.1984).

The committee envisions that this exception set out in subsection (d)(3) will continue to apply, as provided under the preexisting statute, in criminal desertion and nonsupport proceedings. See Ala. Code 1975, § 30-4-57.

Rule 505. Communications to clergymen.

(a)   Definitions. As used in this rule:

(1)   A “clergyman” is any duly ordained, licensed, or commissioned minister, pastor, priest, rabbi, or practitioner of any bona fide established church or religious organization; the term “clergyman” includes, and is limited to, any person who regularly, as a vocation, devotes a substantial portion of his or her time and abilities to the service of his or her church or religious organization.

(2)   A communication is “confidential” if it is made privately and is not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.

(b)   General rule of privilege. If any person shall communicate with a clergyman in the clergyman’s professional capacity and in a confidential manner, then that person or the clergyman shall have a privilege to refuse to disclose, and to prevent another from disclosing, that confidential communication.

(c)   Who may claim the privilege. The privilege may be claimed by the communicating person, by that person’s guardian or conservator, or by that person’s personal representative if that person has died, or by the clergyman.

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Rule 505 tracks, but supersedes, a preexisting statute creating a clergyman privilege in Alabama. Ala. Code 1975, § 12-21-166. See C. Gamble, McElroy’s Alabama Evidence § 419.01 (4th ed. 1991). Additionally, some provisions are taken from Unif.R.Evid. 505 and Fed.R.Evid. 506 (not enacted). The development of a clergyman privilege, prior to the broad adoption of evidence rules, had occurred in about two-thirds of the states and the privilege had been adopted in those states by both statute and case law. See 8 J. Wigmore, Wigmore on Evidence § 2395 (McNaughton rev. 1961).

Sub (a)(1). Definition of “clergyman.” This definition of “clergyman” is necessarily a broad one. It is not sufficiently broad, however, to include “all self-denominated “ministers.” Fed.R.Evid. 506 (not enacted) advisory committee’s note. The terms “ordained,” “licensed,” and “commissioned” focus upon the rules of the particular church or religious organization that govern entrance into the ministry. A good explanation of the term “bona fide established church or religious organization” can be found in the following passage taken from the advisory notes to the proposed, but rejected, Federal Rule of Evidence 506:

“A fair construction of the language requires that the person to whom the status is sought to be attached be regularly engaged in activities conforming at least in a general way with those of a Catholic priest, Jewish rabbi, or minister of an established Protestant denomination, though not necessarily on a full-time basis.”

Like the statutory privilege it supersedes, the Rule 505 privilege does not attach when the person consulted is not in fact a clergyman, even if the person consulting reasonably believes that person to be a clergyman. This principle is consistent with the corresponding principle found in the psychologist-patient privilege. See Ala.R.Evid. 503(a)(2)(B).

Subsection (a)(2). Definition of “confidential.” The definition of this term is consistent with its use in the attorney-client privilege. See Ala.R.Evid. 502(a)(5). Whether a communication is “confidential” is largely determined by deciding whether the communicating person intended to create a confidential communication, i.e., one not to be communicated to unnecessary third parties. The communication must have been made with the express or implied understanding that it should not be revealed to another. Lucy v. State, 443 So.2d 1335 (Ala.Crim.App.1983). The presence of third parties whose presence is not necessary to the making of the communication indicates a lack of intent to communicate confidentially. The presence of a third party, however, does not destroy confidentiality if that third person is present to further the communication. No comparable provision exists in the preexisting statute creating Alabama’s clergyman privilege. Ala. Code 1975, § 12-21-166(b).

Section (b). General rule of privilege. The privilege arises only when the person communicates with a clergyman in the latter’s professional capacity. A similar limitation is placed upon the attorney-client privilege when the client consults a lawyer for some purpose other than to secure legal advice. See Ala.R.Evid. 502(a)(1) advisory committee’s notes. Communications to the clergyman in furtherance of a crime or a fraud would not qualify as seeking spiritual advice and therefore would not fall within the protection of the privilege. Compare Fed.R.Evid. 506(b) (not enacted) advisory committee’s note.

The statutory language providing Alabama’s preexisting clergyman privilege appears to limit the privilege to consultations with a clergyman that are either confessional or marital in nature. The committee thinks the role of the clergyman in modern society is much broader. Consequently, the committee proposed the language of Rule 505, in lieu of that found in the preexisting statute, so as to render the privilege applicable to all conferences where the clergyman is consulted in the professional capacity of spiritual advisor in the broadest sense.

The preexisting statute, upon which Rule 505 is based, protected “anything said by either party during such communication.” The phrase “confidential communication” is adopted in lieu of this language, but with the same broad coverage. Additionally, it is intended that the principle of Alabama’s preexisting case law will continue insofar as it takes an expansive view of “communication,” so that it may include statements made, acts that are synonymous with statements, and, in some instances, noncommunicative acts. See Ala.R.Evid. 504(b); Arnold v. State, 353 So.2d 524 (Ala.1977).

As with the corresponding rule in the attorney-client privilege, any person privy to the communication may be prevented from relating what was said, so long as the communication otherwise qualifies as a confidential, clergyman communication. Compare Ala.R.Evid. 502(b). This necessarily abrogates the common law “eavesdropper rule,” under which one who overheard an otherwise confidential communication – whether by eavesdropping or by accident – could relate what was overheard even if it was an otherwise fully privileged communication. Howton v. State, 391 So.2d 147 (Ala.Crim.App.1980). It should be noted that this abrogation of the eavesdropper rule goes beyond the preexisting, but now superseded, statutory privilege. The statute provided that the penitent or priest was privileged to preclude only “the other from disclosing.” Ala. Code 1975, § 12-21-166(b).

Section (c). Who may claim the privilege. As under the preexisting statute, the privilege belongs to, and may be asserted by, both the communicant and the clergyman. See Ala. Code 1975, § 12-21-166(b). In the majority of jurisdictions, in contrast, the clergyman may not assert the privilege in his or her own right. De’udy v. De’udy, 130 Misc. 168, 495 N.Y.S.2d 616 (N.Y.Sup.Ct.1985) (refusing to allow clergyman to assert the privilege, after waiver by communicant, but recognizing that some state statutes grant an independent privilege to the clergyman). Cf. E. Cleary, McCormick on Evidence § 73.1 (3d ed. 1984) (commenting that, in regard to privileges generally, persons other than the communicant may bring the existence of the privilege to the court’s attention but that normally this is regarded as having been done in behalf of the communicant or holder of the privilege).

The committee envisions that under Rule 505, as under the preexisting statute, the assertion of this privilege will be recognized broadly in a variety of trials, hearings, and proceedings of both a legal and a quasi-legal nature, including proceedings before an administrative agency of the state or a political subdivision thereof. See Ala. Code 1975, § 12-21-166(a)(2). The committee deemed it unnecessary to include an express provision to that effect in Rule 505, because all privileges are applicable in all proceedings. Ala.R.Evid. 1101(c).

Rule 506. Political vote.

(a)   General rule of privilege. Every person has a privilege to refuse to disclose the tenor of such person’s vote at a political election conducted by secret ballot.

(b)   Exceptions. This privilege does not apply if the vote was cast illegally or if disclosure is compellable pursuant to election laws.

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Section (a). General rule of privilege. Alabama has long recognized that the tenor of one’s vote, lawfully cast, is privileged from disclosure. Rule 506 is intended to continue that privilege unchanged. See Black v. Pate, 130 Ala. 514, 30 So. 434 (1901); C. Gamble, McElroy’s Alabama Evidence § 361.03 (4th ed. 1991); J. Colquitt, Alabama Law of Evidence § 5.8 (1990). The rule is based upon Unif.R.Evid. 506. The privilege applies only to votes cast in governmental elections.

Section (b). Exceptions. There are two exceptions to the privilege protecting the tenor of a secret ballot. (1) In all elections, the privacy of the vote may be invaded if it is shown that the vote was cast illegally. This principle is recognized under preexisting Alabama practice, by both statutory law and case law. See Ala. Code 1975, § 17-15-3 (a statute illustrating this principle as applied in general elections); Black v. Pate, 130 Ala. 514, 30 So. 434 (1901). Compare Ex parte Bullen, 236 Ala. 56, 181 So. 498 (1938). (2) Even without a showing of illegality, however, the disclosure of one’s vote may be rendered compellable by election laws. As of the date the committee proposed this rule for adoption, the only Alabama election law that compelled disclosure was the statute regarding the compellability of disclosure regarding a vote in a primary election when the vote is inquired about in the contest of a nomination. Ala. Code 1975, § 17-16-75.

Rule 507. Trade secrets.

A person has a privilege, which may be claimed by the person or the person’s agent or employee, to refuse to disclose and to prevent other persons from disclosing a trade secret owned by the person, if the allowance of the privilege will not tend to conceal fraud or otherwise work injustice. If disclosure is directed, the court shall take such protective measures as the interest of the holder of the privilege and of the parties and the interests of justice require.

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This rule is taken almost verbatim from Rule 507, Unif.R.Evid.507. Compare Fed.R.Evid. 508 (not enacted). A right to the protection given by this rule, albeit qualified, finds historic recognition nationally. See 8 J. Wigmore, Wigmore on Evidence § 2212(3) (McNaughton rev. 1961). The privilege belongs to the owner of the trade secret and may be claimed by the owner or the owner’s agent or employee.

While no trade secret privilege, assertable at trial, has been recognized under preexisting Alabama law, such a privilege is consistent with the policy found in other, related principles. See C. Gamble, McElroy’s Alabama Evidence § 361.02 (4th ed. 1991). First, it furthers the spirit of Alabama’s Trade Secrets Act, which calls for “injunctive and other equitable relief as may be appropriate with respect to any actual or threatened misappropriation of a trade secret.” Ala. Code 1975, § 8-27-4(1)(a). Additionally, it fosters the policy underlying the pretrial concept contained in Ala.R.Civ.P. 26(c). Under Rule 26(c), whenever knowledge of matters is sought by deposition, production, or inspection, the court may enter any order that will protect a party from:

“[A]nnoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: ... (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way....”

The purpose of Rule 507 is to extend the underlying policy of Ala.R.Civ.P. 26(c)(7) to the trial stage of litigation. Rule 507 does not affect or alter in any way the scope or procedure of discovery.

Discretion is vested in the court to disallow the privilege if nondisclosure of the trade secret would “tend to conceal fraud or otherwise work injustice.” Factors to be considered in deciding whether to require disclosure are “the dangers of abuse, good faith, adequacy of protective measures, and the availability of other means of proof.” Fed.R.Evid. 508 (not enacted) advisory committee’s note.

As with other privileges, the party asserting the trade secrets privilege has the burden of demonstrating that a bona fide trade secret exists and that the need to prevent disclosure outweighs the benefit of disclosing relevant evidence.

Even when disclosure is required, however, the court is charged to take such precautionary measures to protect the trade secret as are suggested by balancing the interests of the privilege holder, the parties, and justice. While the rule does not undertake to limit judicial ingenuity in fashioning protective measures, the drafters of the proposed, but never enacted, Federal Rule of Evidence 508 furnished a comprehensive summary of case law examples:

“Perhaps the most common is simply to take testimony in camera. Annot., 62 A.L.R.2d 509. Other possibilities include making disclosure to opposing counsel but not to his client, E. I. du Pont de Nemours Powder Co. v. Masland, 244 U.S. 100, 37 S.Ct. 575, 61 L.Ed. 1016 (1917); making disclosure only to the judge (hearing examiner), Segal Lock & Hardware Co. v. FTC, 143 F.2d 935 (2d Cir.1944); and placing those present under oath not to make disclosure, Paul v. Sinnott, 217 F.Supp. 84 (W.D.Pa.1963).” Fed.R.Evid. 508 (not enacted) advisory committee’s note.

Rule 508. Secrets of state and other official information: Governmental privileges.

(a)   Claim of privilege under federal law. If the United States creates a governmental privilege that the courts of this State must recognize under the Constitution of the United States, the privilege may be claimed as provided by the law of the United States.

(b)   Privileges recognized under state law. No other governmental privilege is recognized except as created by the Constitution or statutes of this State or rules promulgated by the Supreme Court of Alabama.

(c)   Effect of sustaining claim. If a claim of governmental privilege is sustained and it appears that a party is thereby deprived of material evidence, the court shall make any further orders the interests of justice require, such as striking the testimony of a witness, declaring a mistrial, making a finding upon an issue as to which the evidence is relevant, or dismissing the action.

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This rule is based upon the language found in the corresponding Uniform Rule of Evidence. See Unif.R.Evid. 508. Rather than undertaking to create a governmental privilege, this rule merely embraces those privileges that, under the law of the United States or the law of Alabama, already exist or may be created in the future.

Section (a). Claim of privilege under federal law. This section provides that a governmental privilege arising from federal case law or statute, and which as a matter of federal constitutional law must be enforced by the courts of Alabama, may be claimed in the state courts in the manner provided by federal law.

A number of governmental privileges have evolved at common law, either by case law alone or in conjunction with statutes. Sometimes these privileges are said to possess constitutional underpinnings, particularly as they relate to the separation of powers. No effort is made here to list or exhaustively catalog these federal privileges. Chief among them, however, is that applied for the protection of military or diplomatic secrets of state. United States v. Reynolds, 345 U.S. 1 (1953). See 8 J. Wigmore, Wigmore on Evidence § 2370 (McNaughton rev. 1961). While this particular privilege is an absolute one, others are qualified and may give way upon a showing of need for the information. The most celebrated, albeit the least frequently arising, of the qualified privileges is that commonly referred to as the “presidential privilege,” which establishes a cloak of protection for confidential communications between the President of the United States and the President’s immediate advisors. United States v. Nixon, 418 U.S. 683 (1974). See E. Cleary, McCormick on Evidence § 108 (3d ed. 1984). Additionally, an official information privilege has evolved to protect communications within and among governmental agencies. Pacific Molasses Co. v. NLRB, 577 F.2d 1172 (5th Cir.1978). See 5 U.S.C. § 552(b)(5) (1994) (section of Freedom of Information Act that exempts such communications from its coverage). Law enforcement investigation files likewise have been treated as carrying a qualified privilege. Black v. Sheraton Corp. of Am., 564 F.2d 531 (D.C.Cir.1977). See 5 U.S.C. § 552(b)(7) (1994) (exempting such files from the Freedom of Information Act). Compare 18 U.S.C. § 3500 (1988) (Jencks Act provision insulating prior statements or reports of Government witness in criminal case against subpoena, discovery, or inspection until the witness has testified on direct examination at the trial, but then entitling the defense to their production).

Section (b). Privileges recognized under state law. The only available governmental privileges, other than those existing under federal law, arise under the Alabama constitution, Alabama statutes, or rules promulgated by the Supreme Court of Alabama. Compare Ala.R.Evid. 501. While the Alabama constitution contains no express provision granting an executive privilege, it would be within the power of the courts to imply such a privilege from the separation of powers principle. See United States v. Nixon, 418 U.S. 683 (1974); N.D.R.Evid. 508(b) explanatory note. Alabama statutes create privileges that may be categorized as governmental. These statutes are not affected by adoption of Rule 508. See, e.g., Ala. Code 1975, § 22-11A-15 (calling for the exclusion from evidence, because of confidentiality, of physician reports to the state board of health concerning persons with sexually transmitted diseases); Ala. Code 1975, § 32-10-11 (giving privilege status to reports required to be filed concerning automobile accidents); Ala. Code 1975, § 40-18-52 (income tax returns as privileged).

Section (c). Effect of sustaining claim. Whenever a claim of governmental privilege is sustained, so that a litigant is deprived of what would otherwise constitute admissible evidence, the court may order such relief for that litigant as is required by the interests of justice. Devices the court may use for this purpose include striking a witness’s testimony, declaring a mistrial, making a determination, as a matter of law, as to the issue upon which the evidence is relevant, or dismissing the action altogether. This list of available devices is not exhaustive, but merely illustrative. These measures will most often be taken in those cases where a governmental entity that holds and asserts the privilege is a party to the litigation. As expressed in the following passage taken from the advisory committee’s note to the rejected Federal Rule of Evidence 509, the particular order issued by the court depends upon the nature of the case and the prejudice to a party that may be caused by the exclusion of the evidence:

“Reference to other types of cases serves to illustrate the variety of situations which may arise and the impossibility of evolving a single formula to be applied automatically to all of them. The privileged materials may be the statement of ]a[ government witness, as under the Jencks statute, which provides that, if the government elects not to produce the statement, the judge is to strike the testimony of the witness, or that he may declare a mistrial if the interests of justice so require. 18 U.S.C. § 3500(d). Or the privileged materials may disclose a possible basis for applying pressure upon witnesses. United States v. Beekman, 155 F.2d 580 (2d Cir.1946). Or they may bear directly upon a substantive element of a criminal case, requiring dismissal in the event of a successful claim of privilege. United States v. Andolschek, 142 F.2d 503 (2d Cir.1944); and see United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953). Or they may relate to an element of a plaintiff’s claim against the government, with the decisions indicating unwillingness to allow the government’s claim of privilege for secrets of state to be used as an offensive weapon against it. United States v. Reynolds, supra; Republic of China v. National Union Fire Ins. Co., 142 F.Supp. 551 (D.Md.1956).”

Rule 509. Identity of informer.

(a)   Rule of privilege. The United States or a state or subdivision thereof has a privilege to refuse to disclose the identity of a person who has furnished to a law enforcement officer information relating to or assisting in an investigation of a possible violation of a law.

(b)   Who may claim. The privilege may be claimed by an appropriate representative of the public entity to which the information was furnished or the public entity bringing the prosecution.

(c)   Exceptions.

(1)   VOLUNTARY DISCLOSURE;INFORMER AS A WITNESS. No privilege exists under this rule if the identity of the informer or the informer’s interest in the subject matter of the communication has been disclosed, by a holder of the privilege or by the informer’s own action, to those who would have cause to resent the communication or if the informer appears as a witness for the prosecution.

(2)   TESTIMONY ON RELEVANT ISSUE. If it appears in the case that an informer may be able to give testimony relevant to any issue in a criminal case or to a fair determination of a material issue on the merits in a civil case, and the privilege has been invoked, the court shall give the public entity an opportunity to show in camera facts relevant to determining whether the informer can, in fact, supply that testimony. The showing will ordinarily be in the form of affidavits, but the court may direct that testimony be taken if it finds that the matter cannot be resolved satisfactorily upon affidavit. If the court finds there is a reasonable probability that the informer can give the testimony, and the public entity elects not to disclose the informer’s identity, in criminal cases the court on motion of the defendant, or on its own motion shall grant appropriate relief, which may include one or more of the following: requiring the prosecuting attorney to comply with an order to disclose the informer’s identity, granting the defendant additional time or a continuance, relieving the defendant from making disclosures otherwise required, prohibiting the prosecuting attorney from introducing specified evidence, or dismissing charges. In fashioning appropriate relief in civil cases, the court may make any order the interests of justice require. Evidence submitted to the court shall be sealed and preserved, to be made available to the appellate court in the event of an appeal, and the contents shall not otherwise be revealed without consent of the public entity asserting the privilege. During any in camera showing, for the purpose of determining the applicability of the present privilege, no party should be present but, in its discretion, the court may allow counsel for any party and counsel for the public entity to be present.

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Section (a). Rule of privilege. The language of this rule is substantially the same as that found in Unif.R.Evid. 509. It continues that historic governmental privilege protecting the identity of one who furnishes to the government information that is related to or that assists in investigations regarding violations of law. See E. Cleary, McCormick on Evidence § 111 (3d ed. 1984). Such a privilege has long existed under preexisting Alabama law. Pugh v. State, 493 So.2d 388 (Ala.Crim.App. 1985), aff’d, 493 So.2d 393 (Ala.1986); C. Gamble, McElroy’s Alabama Evidence § 408.01 (4th ed. 1991). While customarily asserted in the context of a criminal proceeding, the Rule 509 privilege is not limited to criminal cases. It may be asserted in civil cases. This application of the privilege in civil cases goes beyond preexisting Alabama authority. Compare White v. State, 368 So.2d 332 (Ala.Crim.App.1979). Consistent with historic precedent, this privilege applies only to the identity of the informer. The communication does not fall within the privilege unless its disclosure would have the incidental effect of identifying the informer. See Pugh v. State, 493 So.2d 388 (Ala.Crim.App.1985), aff’d, 495 So.2d 393 (Ala.1986); 8 J. Wigmore, Wigmore on Evidence § 2374 (McNaughton rev. 1961).

The drafters thought it unnecessary to extend this privilege to legislative investigations; thus, in that regard this rule is different from Unif.R.Evid. 509.

Section (b). Who may claim. While this privilege is often referred to as the “informer’s privilege,” the holder of this privilege is either the governmental entity to which the informer furnished the information or the public entity bringing the prosecution. An appropriate representative of such an entity may claim the privilege in its behalf. Normally, the appropriate representative is counsel for the entity. See Fed.R.Evid. 501 (original proposal, not enacted) advisory committee’s note. Others, however, may be deemed appropriate to assert the privilege, particularly in proceedings to which the governmental entity is not a party. See Bocchicchio v. Curtis Publishing Co., 203 F.Supp. 403 (E.D.Pa.1962) (civil libel action in which the police officer, not represented by counsel, successfully claimed the privilege).

Section (c). Exceptions.

(1)   Voluntary disclosure; informer as a witness. The informer’s privilege falls where the informer’s identity has been disclosed. Disclosure may be direct or may arise indirectly when the informer’s interest in the subject matter of the information furnished to the law enforcement officer becomes known. See Westinghouse Elec. Corp. v. City of Burlington, 351 F.2d 762 (D.C.Cir.1965), on remand, 246 F.Supp. 839 (D.D.C.1965) (informer’s privilege held inapplicable, with regard to complaints of criminal antitrust violations made to the attorney general, after plaintiff/informer filed civil antitrust action).

The informer’s privilege falls, however, only if disclosure is made to “those who would have cause to resent the communication.” The idea underlying this principle is that, if the informer’s identity has already been disclosed to those who would resent the informer’s action, there is no need for the privilege. The language “resent the communication” is taken from Roviaro v. United States, 353 U.S. 53 (1957), and has been quoted approvingly by the Supreme Court of Alabama. Pugh v. State, 493 So.2d 388 (Ala.Crim.App.1985), aff’d, 493 So.2d 393, 395 (Ala.1986). Those as to whom a disclosure will abrogate the privilege may include the defense or persons in the community. See United States v. Long, 533 F.2d 505 (9th Cir.), cert. denied, 429 U.S. 829 (1976). Disclosure by one law enforcement agency to another does not abrogate the privilege. See E. Cleary, McCormick on Evidence § 111 (3d ed. 1984).

The privilege may be waived when the holder of it discloses the informer’s identity, i.e., when an agent of the governmental entity holding the privilege discloses the informer’s identity. Additionally, however, this rule recognizes a waiver when the informer discloses his or her own identity. Compare Fed.R.Evid. 510 (not enacted).

When the government calls the informer as a witness, the cross-examining party’s right to show the informer’s status, as indicating bias, outweighs the interest promoted by assertion of the privilege. See Harris v. United States, 371 F.2d 365 (9th Cir. 1967).

(2)   Testimony on relevant issue. The Rule 509 privilege aims at promoting the free flow of information to governmental law enforcement officers. This policy, however, may be held to give way, under the present exception, to an overriding policy of fundamental fairness in allowing litigants to prove their cases via access to material and relevant information.

The privilege falls where the identity of the informer, or what was communicated by the informer, is relevant and helpful to the defense of the criminally accused. Roviaro v. United States, 353 U.S. 53 (1957). In this circumstance, the governmental interest in the free flow of information is deemed to be outweighed by the accused’s right to prove innocence. This exception has received historic recognition in Alabama. Pugh v. State, 493 So.2d 388 (Ala.Crim.App.1985), aff’d, 493 So.2d 393 (Ala.1986). Rule 509 extends this balancing process to civil cases and directs the court’s focus to whether there exists a reasonable probability that the informer may be able to give testimony necessary to a fair determination of a material issue on the merits in a civil case. In determining whether that probability exists, the court is to investigate the facts in camera. Should the privilege continue to be asserted, in face of the court’s finding that the informer is able to give necessary testimony, the court is to afford appropriate relief. Subsection (c)(2) provides a list of possible measures, satisfying the requirement of “appropriate relief,” for application in criminal cases. Possible relief in civil litigation is of such breadth that no specification is attempted.

Rule 510. Waiver of privilege by voluntary disclosure.

(a)   Generally. A person upon whom these rules confer a privilege against disclosure waives the privilege if the person or the person’s predecessor while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the privileged matter. This rule does not apply if the disclosure itself is privileged.

(b)   Attorney-Client Privilege and Work Product; Limitations on Waiver. Notwithstanding section (a) of this rule, the following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the attorney-client privilege or work-product protection.

(1)   DISCLOSURE MADE IN AN ALABAMA PROCEEDING; SCOPE OF WAIVER. When the disclosure is made in an Alabama proceeding and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in an Alabama proceeding only if:

(A)   the waiver is intentional;

(B)   the disclosed and undisclosed communications or information concern the same subject matter; and

(C)   the disclosed and undisclosed communications or information should, in fairness, be considered together.

(2)   INADVERTENT DISCLOSURE. When made in an Alabama proceeding, the disclosure does not operate as a waiver in an Alabama proceeding if:

(A)   the disclosure is inadvertent;

(B)   the holder of the privilege or protection took reasonable steps to prevent disclosure; and

(C)   the holder promptly took reasonable steps to rectify the error, including (if applicable) following the procedure set out in Alabama Rule of Civil Procedure 26(b)(6)(B).

(3)   DISCLOSURE MADE IN A PROCEEDING IN FEDERAL COURT OR IN ANOTHER STATE. When the disclosure is made in a proceeding in federal court or in another state and is not the subject of a court order concerning waiver, the disclosure does not operate as a waiver in an Alabama proceeding if the disclosure:

(A)   would not be a waiver under this rule if it had been made in an Alabama proceeding; or

(B)   is not a waiver under the law governing the federal or state proceeding in which the disclosure occurred.

(4)   CONTROLLING EFFECT OF A COURT ORDER. An Alabama court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court—in which event the disclosure is also not a waiver in any other Alabama proceeding.

(5)   CONTROLLING EFFECT OF A PARTY AGREEMENT. An agreement on the effect of disclosure in an Alabama proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order.

(6)   DEFINITIONS. In this rule:

(A)   “Attorney-client privilege” means the protection that applicable law provides for confidential attorney-client communications; and

(B)   “Work-product protection” means the protection that applicable law provides for tangible material (or its intangible equivalent) prepared in anticipation of litigation or for trial.

[Amended 8-15-2013, eff. 10-1-2013.]

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This rule, stated substantially in the language of the corresponding Uniform Rule of Evidence, sets forth in express terms what is to be implied from the statement of all privileges – i.e., the privilege falls when that which is protected by the privilege is voluntarily disclosed by the holder. See Unif.R.Evid. 510. Such a waiver may occur, for example, when the holder allows an unnecessary third party to be privy to an otherwise privileged communication. Additionally, it may arise when the holder tells a third party about the privileged matter. See, e.g., Perry v. State, 280 Ark. 36, 655 S.W.2d 380 (1983) (clergyman privilege waived by disclosure of inculpatory statements to others); State v. Jackson, 97 N.M. 467, 641 P.2d 498 (1982). This waiver doctrine is consistent with preexisting Alabama law. See Ex parte Great Am. Surplus Lines Ins. Co., 540 So.2d 1357 (Ala.1989) (attorney-client privilege); Swoope v. State, 115 Ala. 40, 22 So. 479 (1897) (husband-wife privilege); C. Gamble, McElroy’s Alabama Evidence §§ 394.01 (waiver of attorney-client privilege), and 103.01(4) (husband-wife privilege) (4th ed. 1991).

The waiver doctrine has two significant limitations. First, waiver arises only when the holder has disclosed, or allowed disclosure of, the “privileged matter.” The client does not waive the attorney-client privilege, for example, by disclosing the subject discussed without revealing the substance of the discussion itself. See Fed.R.Evid. 511 (not enacted) advisory committee’s note; E. Cleary, McCormick on Evidence § 93 (3d ed. 1984). Even if the holder discloses a portion of the privileged matter, however, the second limitation is that the disclosure must be of a “significant part” of it. Disclosure of an insignificant part of the privileged matter does not waive the privilege. Whether a significant part of the privileged matter has been disclosed is a common sense question for the judge. See N.D.R.Evid. 510 explanatory note. It should be observed, of course, that the holder need not disclose every detail of the privileged matter in order to waive the privilege. See Or.R.Evid. 511 legislative commentary. No waiver occurs if the disclosure, even of a significant part of the privileged matter, is made in the course of another privileged communication. Perry v. State, 280 Ark. 36, 655 S.W.2d 380 (1983).

The concept of fairness underlies the waiver doctrine. It has been held unfair to permit offensive assertion of a privilege. When a party, for example, offers a portion of the privileged matter in proof of his or her case, fairness dictates that the opponent be allowed to offer or discover the remainder. Ginsberg v. Fifth Court of Appeals, 686 S.W.2d 105 (Tex. 1985). This is consistent with preexisting Alabama law under which the attorney-client privilege falls when a plaintiff client puts the attorney-client communications at issue or charges the attorney with misconduct. Ex parte Malone Freight Lines, Inc., 492 So.2d 1301 (Ala.1986); Dewberry v. Bank of Standing Rock, 227 Ala. 484, 150 So. 463 (1933).

Advisory Committee’s Notes to Amendment to Rule 510 Effective October 1, 2013

Rule 510 has been amended to establish a standard for determining whether inadvertent disclosure in an Alabama proceeding of matter otherwise protected by the attorney-client privilege or the work-product doctrine results in waiver of the privilege or protection. This amendment is to be read consistent with revisions made to the Alabama Rules of Civil Procedure in 2010 to accommodate the discovery of electronically stored information (ESI).

The amendment is also intended to align Alabama law with Federal Rule of Evidence 502 and to provide predictable, uniform standards whereby parties can protect against waiver of the privilege or protection in an Alabama proceeding. All substantive changes to Rule 510 are found in a new section (b), which is modeled on Federal Rule 502.

Section (a). Generally. No changes have been made to the original paragraph of Rule 510, which is now designated as Rule 510(a). Rule 510(a) governs the consequences of voluntary disclosure of privileged matter generally, in circumstances not covered by Rule 510(b).

Section (b). Attorney-Client Privilege and Work Product; Limitations on Waiver. Rule 510(b) addresses only the effect of disclosure, in an Alabama proceeding, of information otherwise protected by the attorney-client privilege or the work-product doctrine and whether the disclosure itself operates as a waiver of the privilege or protection for purposes of admissibility. The failure to address in Rule 510(b) other waiver issues or other privileges or protections is not intended to affect the law regarding those other waiver issues, privileges, or protections. The amendment does not alter existing Alabama law for determining whether a communication or information qualifies for protection under the attorney-client privilege or the work-product doctrine in the first instance.

Subsection (b)(1). Disclosure Made in an Alabama Proceeding; Scope of Waiver. Rule 510(b)(1) adopts the standard set forth in Federal Rule 502(a). The advisory committee’s notes accompanying Federal Rule 502(a) provide a clear description of this standard.

”[A] subject matter waiver (of either privilege or work product) is reserved for those unusual situations in which fairness requires a further disclosure of related, protected information, in order to prevent a selective and misleading presentation of evidence to the disadvantage of the adversary. See, e.g., In re United Mine Workers of America Employee Benefit Plans Litig., 159 F.R.D. 307, 312 (D.D.C. 1994) (waiver of work product limited to materials actually disclosed, because the party did not deliberately disclose documents in an attempt to gain a tactical advantage). Thus, subject matter waiver is limited to situations in which a party intentionally puts protected information into the litigation in a selective, misleading and unfair manner. It follows that an inadvertent disclosure of protected information can never result in a subject matter waiver.”

Fed. R. Evid. 502(a) (Advisory Committee’s Notes).

Subsection (b)(2). Inadvertent Disclosure. Subsection (b)(2) fills a gap in Alabama law regarding the proper standard for determining whether an inadvertent disclosure of matter protected by the attorney-client privilege or work-product doctrine during discovery results in waiver of the privilege or protection. See Koch Foods of Alabama LLC v. Gen. Elec. Capital Corp., 531 F. Supp. 2d 1318, 1320-21 (M.D. Ala. 2008) (observing that courts have used three standards for determining whether an inadvertent waiver has occurred but that ”Alabama law does not fall neatly into any of these categories”). See also Ala. R. Civ. P. 26(b)(6)(B) (Committee Comments to 2010 Amendment) (2010 amendment ”provides a procedure to assert a claim of attorney-client privilege or work-product protection after production [that is] applicable to both non-ESI and ESI data, but [the change] is procedural and does not address substantive waiver law”).

The substantive standard set forth in this subsection is intended to apply in the absence of a court order or a party agreement regarding the effect of disclosure. In determining whether waiver has occurred, court orders and party agreements should ordinarily control. Cf. Ala. R. Civ. P. 16(b)(6) (Committee Comments to 2010 Amendment) (”subdivision (b)(6) allows the parties to agree (and the court to adopt their agreement as its order) concerning nonwaiver of any claim of privilege or work-product protection in the event such materials are inadvertently produced”).

Alabama Rule 510(b)(2) adopts verbatim the three-part standard set out in Federal Rule 502(b). Under this standard, disclosure does not operate as a waiver if: (1) the disclosure was inadvertent, (2) the holder took reasonable steps to prevent disclosure, and (3) the holder took prompt and reasonable steps to rectify the error including (if applicable) providing the notice and following the other steps set forth in Rule 26(b)(6)(B) of the Alabama Rules of Civil Procedure.

The standard adopted is intended to be flexible. Accordingly, no attempt is made to define “reasonable steps” or to list factors that must be considered in every case. Guidance for applying this standard can be found in the advisory committee’s notes accompanying Federal Rule 502(b), which provide:

”Cases such as Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 104 F.R.D. 103, 105 (S.D.N.Y. 1985) and Hartford Fire Ins. Co. v. Garvey, 109 F.R.D. 323, 332 (N.D. Cal. 1985), set out a multifactor test for determining whether inadvertent disclosure is a waiver. The stated factors (none of which is dispositive) are the reasonableness of precautions taken, the time taken to rectify the error, the scope of discovery, the extent of disclosure and the overriding issue of fairness. The rule does not explicitly codify that test, because it is really a set of non-determinative guidelines that vary from case to case. The rule is flexible enough to accommodate any of those listed factors. Other considerations bearing on the reasonableness of a producing party’s efforts include the number of documents to be reviewed and the time constraints for production. Depending on the circumstances, a party that uses advanced analytical software applications and linguistic tools in screening for privilege and work product may be found to have taken ’reasonable steps’ to prevent inadvertent disclosure. The implementation of an efficient system of records management before litigation may also be relevant.

”The rule does not require the producing party to engage in a post-production review to determine whether any protected communication or information has been produced by mistake. But the rule does require the producing party to follow up on any obvious indications that a protected communication or information has been produced inadvertently.”

Fed. R. Evid. 502(b) (Advisory Committee’s Notes).

Subsection (b)(3). Disclosure Made in a Proceeding in Federal Court or in Another State. Alabama Rule 510(b)(3) corresponds to Federal Rule 502(c) and addresses the situation where the initial disclosure occurred in a proceeding in federal court or in another state’s court and the disclosed matter is subsequently offered in an Alabama proceeding. Rule 510(b)(3) provides that, in the absence of a court order, the disclosure will not operate as a waiver in an Alabama proceeding if: (1) the disclosure would not have resulted in a waiver in an Alabama proceeding by application of Ala. R. Evid. 510(b), or (2) if the disclosure would not have resulted in waiver under the law applicable to the federal or state proceeding in which it occurred. Stated differently, the law that is the most protective of privilege and work-product should be applied.

Subsection (b)(4). Controlling Effect of a Court Order. Alabama Rule 510(b)(4) corresponds to Federal Rule 502(d). Under Rule 510(b)(4), a confidentiality order governing the consequences of disclosure entered in an Alabama proceeding is enforceable against nonparties in a subsequent Alabama proceeding. Rule 510(b)(4), like its federal counterpart, is intended to provide predictability and reduce discovery costs. See Fed. R. Evid. 502(d) (Advisory Committee’s Notes) (”[T]he utility of a confidentiality order in reducing discovery costs is substantially diminished if it provides no protection outside the particular litigation in which the order is entered. Parties are unlikely to be able to reduce the costs of pre-production review for privilege and work product if the consequence of disclosure is that the communications or information could be used by non-parties to the litigation.”). Cf. Ala. R. Civ. P. 16(b)(6) (party agreements for asserting claims of privilege or work-product protection after production may be included in court’s scheduling order); Ala. R. Civ. P. 26(f) (party agreements for asserting claims of privilege or work-product protection after production may be included in court’s discovery-conference order).

Subsection (b)(5). Controlling Effect of a Party Agreement. Alabama Rule 510(b)(5) corresponds to Federal Rule 502(e) and recognizes that parties may enter into agreements concerning the effect of disclosure of privileged or protected materials in an Alabama proceeding. However, such an agreement is binding only on the parties unless it is incorporated into a court order as provided in Rule 510(b)(4).

Subsection (b)(6). Definitions. Alabama Rule 510(b)(6) adopts verbatim the definitions for “attorney-client privilege” and “work-product protection” contained in Federal Rule 502(g). The definitions are general. No substantive change in existing Alabama law is intended. Cf. Ala. R. Evid. 502(a) (attorney-client privilege); Ala. R. Civ. P. 26(b)(4) (trial-preparation materials).

Note from reporter of decisions: The order amending Rule 404(a), Rule 405(a), Rule 407, Rule 408, Rule 412, Rule 510, Rule 608(b), Rule 703, Rule 801(d), Rule 803(6), Rule 804(b), and Rule 1103, Ala. R. Evid., and adopting Rule 902(11) and (12), Ala. R. Evid., and the Advisory Committee’s Notes to the amendment or adoption of these rules, effective October 1, 2013, is published in that volume of Alabama Reporter that contains Alabama cases from ___ So. 3d.

Rule 511. Privileged matter disclosed under compulsion or without opportunity to claim privilege.

A claim of privilege is not defeated by a disclosure which was (a) compelled erroneously or (b) made without opportunity to claim the privilege.

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Rule 510 provides that a disclosure ordinarily waives a privilege. However, Rule 511 establishes a corollary, that not every disclosure constitutes a waiver. The language of Rule 511 is taken from Unif.R.Evid. 511.

Part (a). Erroneously compelled disclosure. A disclosure that is compelled erroneously does not prevent the holder from subsequently asserting the privilege. The remedy for an erroneously compelled disclosure is for the court to exclude from the evidence the information erroneously compelled. There is no requirement, as a condition precedent to reasserting the privilege, that the holder have exhausted all remedies with regard to the erroneously compelled disclosure. The omission of such a requirement is perhaps best expressed by the drafters of the identical, but not enacted, federal rule:

“With respect to erroneously compelled disclosure, the argument may be made that the holder should be required in the first instance to assert the privilege, stand his ground, refuse to answer, perhaps incur a judgment of contempt, and exhaust all legal recourse, in order to sustain his privilege. However, this exacts of the holder greater fortitude in the face of authority than ordinary individuals are likely to possess, and assumes unrealistically that a judicial remedy is always available.” Fed.R.Evid. 512 (not enacted) advisory committee’s note (citation omitted).

Part (b). Disclosure without opportunity to claim the privilege. A second basis for an exception to the waiver concept arises when disclosure is made under circumstances in which the holder has no opportunity to assert the privilege. Such circumstances would be present, for example, if an employee of an attorney (expressly included within the attorney-client privilege as a third party whose presence does not destroy confidentiality) discloses the privileged matter in a setting where neither the attorney nor the client is present. See Ala.R.Evid. 502(4). Such disclosure could arise when a member of a patient’s family, who participated in the consultation, divulges, out of the presence of the patient or the patient’s attorney, confidential communications between the patient and a psychotherapist. See Ala.R.Evid. 503. Additionally, circumstances justifying exclusion would exist where a question calling for privileged information is asked and is answered in such rapid succession that the holder has an inadequate opportunity to object.

Rule 512. Comment upon or inference from claim of privilege in criminal cases; instruction.

(a)   Comment or inference not permitted. In a criminal case, the claim of a privilege, whether in the present proceeding or upon a prior occasion, is not a proper subject of comment by judge or counsel. No inference may be drawn therefrom.

(b)   Claiming privilege without knowledge of jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to facilitate the making of claims of privilege without the knowledge of the jury.

(c)   Jury instruction. Upon request, any party against whom the jury might draw an adverse inference from a claim of privilege is entitled to an instruction that no inference may be drawn therefrom.

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Section (a). Comment or inference not permitted. A long held constitutional principle has been that of the accused’s right to prevent the prosecution from commenting upon the accused’s failure to take the witness stand based on the assertion of the privilege against self-incrimination. See Griffin v. California, 380 U.S. 609 (1965); Dobard v. State, 435 So.2d 1338 (Ala.Crim.App. 1982), aff’d, 435 So.2d 1351 (Ala.1983), cert. denied, 464 U.S. 1063 (1984); C. Gamble, McElroy’s Alabama Evidence § 377.01 (4th ed. 1991). Rule 512, containing language similar to that found in the corresponding Uniform Rule of Evidence, extends this no-comment principle to privileges that are not of constitutional origin. See Unif.R.Evid. 512. One should note, however, that Ala.R.Evid. 512A creates a special rule applicable to comment upon a civil party’s assertion of a privilege.

Section (b). Claiming privilege without knowledge of jury. Often, a witness is called to the stand and asked a question, a privilege is asserted, and, after an exchange, is not required to answer – all within the hearing of the jury. Rule 512 calls upon the trial judge, insofar as is practicable, to avoid such a situation and to conduct proceedings so that privileges may be claimed without the knowledge of the jury. Many privilege questions will appear in advance, and the trial judge is encouraged to foresee these questions and to facilitate the assertion of the privilege by addressing the question outside the hearing of the jury. Obviously, not all privilege questions will be anticipated; consequently, much must be left to the discretion of the trial judge.

This rule is consistent with preexisting Alabama authority, which gives the trial judge discretion to require that offers of evidence and arguments as to admissibility be made outside the hearing of the jury. See Shiflett v. State, 38 Ala.App. 662, 93 So.2d 523 (1956), cert. denied, 265 Ala. 652, 93 So.2d 526 (1957). Additionally, Alabama motion in limine practice affords the privilege holder a pretrial tactic through which to avoid being forced to claim the privilege before the jury. See C. Gamble, The Motion in Limine: A Pretrial Procedure That Has Come of Age, 33 Ala.L.Rev. 1 (1981).

Section (c). Jury instruction. As a matter of right, the holder of the privilege may have the trial court instruct the jury against drawing any negative inference from the assertion of a privilege. See Bruno v. United States, 308 U.S. 287 (1939). Neither the rule nor these comments address the effectiveness of such an instruction. That issue, and whether to ask for the instruction, are tactical questions for the privilege holder. This rule is consistent with appellate decisions in Alabama that have increasingly extolled the virtues of instructing juries as to their role arising from certain evidentiary rulings. See Cups Coal Co. v. Tennessee River Pulp & Paper Co., 519 So.2d 932 (Ala.1988).

Rule 512A. Comment upon or inference from claim of privilege in civil cases.

(a)   Comment or inference permitted. In a civil action or proceeding, a party’s claim of a privilege, whether in the present action or proceeding or upon a prior occasion, is a proper subject of comment by judge or counsel. An appropriate inference may be drawn from the claim.

(b)   Claim of privilege by nonparty witness. The claim of a privilege by a nonparty witness in a civil action or proceeding is governed by the same principles that are applicable to criminal cases by virtue of Rule 512.

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Section (a). Comment or inference permitted. This rule continues Alabama’s historic principle that a civil party’s assertion of a privilege, such as that against self-incrimination, may be commented upon by the opponent and that the trier of fact may consider the assertion of the privilege and draw from it inferences against the party asserting it. Cokely v. Cokely, 469 So.2d 635 (Ala.Civ.App.1985) (divorce action in which spouse asserts privilege against self-incrimination when asked questions aimed at disclosing acts of adultery). A comment on the assertion of the privilege likewise is permissible when a party in a civil action or proceeding fails to take the witness stand altogether. Trahan v. Cook, 288 Ala. 704, 265 So.2d 125 (1972). See also Morris v. McClellan, 154 Ala. 639, 45 So. 641 (1908) (containing basic rationale for allowing such a comment).

The committee recognizes that a number of states have adopted rules of evidence that preclude such comment. See, e.g., Ark.R.Evid. 512; Idaho R.Evid. 512; Neb. Rev. Stat. § 27-513; Vt.R.Evid. 512. At the same time, however, such comment has been held constitutional and is regularly permitted in federal courts. See, e.g., Lefkowitz v. Cunningham, 431 U.S. 801 (1977); Baxter v. Palmigiano, 425 U.S. 308 (1976). Compare Me.R.Evid. 513.

If in a civil action or proceeding comment is permissible as to the assertion of the privilege against self-incrimination, a constitutionally based privilege, then it seems reasonable to allow like comment when a party in a civil proceeding asserts any other evidentiary privilege.

Section (b). Claim of privilege by nonparty witness. If a nonparty witness takes the stand and asserts a privilege, then comment or inference against a party is not permitted. This appears consistent with preexisting Alabama authority. See Breedwell v. State, 38 Ala.App. 620, 90 So.2d 845 (1956); C. Gamble, McElroy’s Alabama Evidence § 377.04 (4th ed. 1991).