905.06 Communications to members of the clergy.
905.065 Honesty testing devices.
905.09 Law enforcement records.
905.10 Identity of informer.
905.11 Waiver of privilege by voluntary disclosure.
905.12 Privileged matter disclosed under compulsion or without opportunity to claim privilege.
905.13 Comment upon or inference from claim of privilege; instruction.
905.14 Privilege in crime victim compensation proceedings.
905.15 Privilege in use of federal tax return information.
Ch. 905 Note
NOTE: Extensive comments by the Judicial Council Committee and the Federal Advisory Committee are printed with chs. 901 to 911 in 59 Wis. 2d. The court did not adopt the comments but ordered them printed with the rules for information purposes.
905.01
905.01
Privileges recognized only as provided. Except as provided by or inherent or implicit in statute or in rules adopted by the supreme court or required by the constitution of the United States or Wisconsin, no person has a privilege to:
905.01(2)
(2) Refuse to disclose any matter; or
905.01(3)
(3) Refuse to produce any object or writing; or
905.01(4)
(4) Prevent another from being a witness or disclosing any matter or producing any object or writing.
905.01 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R101 (1973).
905.01 Annotation
This section precludes courts from recognizing common law privileges not contained in the statutes, or the U.S. or Wisconsin constitutions. Privileges and confidentialities granted by statute are strictly interpreted. Davison v. St. Paul Fire & Marine Insurance Co.
75 Wis. 2d 190,
248 N.W.2d 433 (1977).
905.01 Annotation
A defendant did not have standing to complain that a physician's testimony violated the witness's physician-patient privilege under s. 905.04; the defendant was not authorized to claim the privilege on the patient's behalf. State v. Echols,
152 Wis. 2d 725,
449 N.W.2d 320 (Ct. App. 1989).
905.01 Annotation
As s. 907.06 (1) prevents a court from compelling an expert to testify, it logically follows that a litigant should not be able to so compel an expert and a privilege to refuse to testify is implied. Burnett. v. Alt,
224 Wis. 2d 72,
589 N.W.2d 21 (1999),
96-3356.
905.01 Annotation
Under Alt, a person asserting the privilege not to offer expert opinion testimony can be required to give that testimony only if: 1) there are compelling circumstances present; 2) there is a plan for reasonable compensation of the expert; and 3) the expert will not be required to do additional preparation for the testimony. An exact question requiring expert opinion testimony and a clear assertion of the privilege are required for a court to decide whether compelling circumstances exist. Alt does not apply to observations made by a person's treating physician relating to the care or treatment provided to the patient. Glenn v. Plante, 2004 WI 24,
269 Wis. 2d 575,
676 N.W.2d 413,
02-1426.
905.01 Annotation
The "inherent or implicit" language in this section is quite narrow in scope and was included by the supreme court to preserve a particular work product privilege already recognized at the time this language was added to the statute, while leaving other privileges to be provided for more expressly in other statutory provisions. Sands v. The Whitnall School District, 2008 WI 89, ___ Wis. 2d ___,
754 N.W.2d 439,
05-1026.
905.015
905.015
Interpreters for persons with language difficulties, limited English proficiency, or hearing or speaking impairments. If an interpreter for a person with a language difficulty, limited English proficiency, as defined in
s. 885.38 (1) (b), or a hearing or speaking impairment interprets as an aid to a communication which is privileged by statute, rules adopted by the supreme court, or the U.S. or state constitution, the interpreter may be prevented from disclosing the communication by any person who has a right to claim the privilege. The interpreter may claim the privilege but only on behalf of the person who has the right. The authority of the interpreter to do so is presumed in the absence of evidence to the contrary.
905.02
905.02
Required reports privileged by statute. A person, corporation, association, or other organization or entity, either public or private, making a return or report required by law to be made has a privilege to refuse to disclose and to prevent any other person from disclosing the return or report, if provided by law. A public officer or agency to whom a return or report is required by law to be made has a privilege to refuse to disclose the return or report if provided by law. No privilege exists under this section in actions involving false swearing, fraudulent writing, fraud in the return or report, or other failure to comply with the law in question.
905.02 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R109 (1973).
905.02 Annotation
This section applies only to privileges specifically and unequivocally provided by law against the disclosure of specific materials. Davison v. St. Paul Fire & Marine Insurance Co.
75 Wis. 2d 190,
248 N.W.2d 433 (1977).
905.03
905.03
Lawyer-client privilege. 905.03(1)
(1)
Definitions. As used in this section:
905.03(1)(a)
(a) A "client" is a person, public officer, or corporation, association, or other organization or entity, either public or private, who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from the lawyer.
905.03(1)(b)
(b) A "lawyer" is a person authorized, or reasonably believed by the client to be authorized, to practice law in any state or nation.
905.03(1)(c)
(c) A "representative of the lawyer" is one employed to assist the lawyer in the rendition of professional legal services.
905.03(1)(d)
(d) A communication is "confidential" if not intended to be disclosed to 3rd persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.
905.03(2)
(2) General rule of privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client: between the client or the client's representative and the client's lawyer or the lawyer's representative; or between the client's lawyer and the lawyer's representative; or by the client or the client's lawyer to a lawyer representing another in a matter of common interest; or between representatives of the client or between the client and a representative of the client; or between lawyers representing the client.
905.03(3)
(3) 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 lawyer at the time of the communication may claim the privilege but only on behalf of the client. The lawyer's authority to do so is presumed in the absence of evidence to the contrary.
905.03(4)
(4) Exceptions. There is no privilege under this rule:
905.03(4)(a)
(a)
Furtherance of crime or fraud. If the services of the lawyer 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; or
905.03(4)(b)
(b)
Claimants through 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; or
905.03(4)(c)
(c)
Breach of duty by lawyer or client. As to a communication relevant to an issue of breach of duty by the lawyer to the lawyer's client or by the client to the client's lawyer; or
905.03(4)(d)
(d)
Document attested by lawyer. As to a communication relevant to an issue concerning an attested document to which the lawyer is an attesting witness; or
905.03(4)(e)
(e)
Joint clients. As to a communication relevant to a matter of common interest between 2 or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between any of the clients.
905.03 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R111 (1973);
1991 a. 32.
905.03 Annotation
That there was a communication from a client to an attorney is insufficient to find the communication is privileged. Jax v. Jax,
73 Wis. 2d 572,
243 N.W.2d 831 (1975).
905.03 Annotation
There is not a general exception to the lawyer-client privilege in legal malpractice cases. The extent of the privilege is discussed. Dyson v. Hempe,
140 Wis. 2d 792,
413 N.W.2d 379 (Ct. App. 1987).
905.03 Annotation
When a defendant alleges ineffective assistance of counsel, the lawyer-client privilege is waived to the extent that counsel must answer questions relevant to the allegation. State v. Flores,
170 Wis. 2d 272,
488 N.W.2d 116 (Ct. App. 1992).
905.03 Annotation
A litigant's request to see his or her file that is in the possession of current or former counsel does not waive the attorney-client and work-product privileges and does not allow other parties to the litigation discovery of those files. Borgwardt v. Redlin,
196 Wis. 2d 342,
538 N.W.2d 581 (Ct. App. 1995),
94-2701.
905.03 Annotation
Waiver of attorney-client privilege is not limited to direct attacks on attorney performance. An attempt to withdraw a plea on the grounds that it was not knowingly made raised the issue of attorney performance and resulted in a waiver of the attorney-client privilege. State v. Simpson,
200 Wis. 2d 798,
548 N.W.2d 105 (Ct. App. 1996),
95-1129.
905.03 Annotation
Attorney-client privilege is not waived by a broadly worded insurance policy cooperation clause in a coverage dispute. There is not a common interest exception to the privilege when the attorney was not consulted in common by two clients. State v. Hydrite Chemical Co.
220 Wis. 2d 51,
582 N.W.2d 411 (Ct. App. 1998),
96-1780.
905.03 Annotation
The attorney-client privilege is waived when the privilege holder attempts to prove a claim or defense by disclosing or describing an attorney-client communication. State v. Hydrite Chemical Co.
220 Wis. 2d 51,
582 N.W.2d 411 (Ct. App. 1998),
96-1780.
905.03 Annotation
A videotaped interview of a crime victim conducted by the alleged perpetrator's spouse was not privileged as attorney communication because it was made in the presence of a 3rd-party, the victim, and was not confidential. Estrada v. State, is. 2d 459,
596 N.W.2d 496 (Ct. App. 1999),
98-3055.
905.03 Annotation
A former director cannot act on behalf of the client corporation and waive the lawyer-client privilege. Even though documents were created during the former director's tenure as a director, a former director is not entitled to documents in the corporate lawyer's files. Lane v. Sharp Packaging Systems, 2002 WI 28,
251 Wis. 2d 68,
640 N.W.2d 788,
00-1797.
905.03 Annotation
Billing records are communications from the attorney to the client, and producing those communications violates the lawyer-client privilege if production of the documents reveals the substance of lawyer-client communications. Lane v. Sharp Packaging Systems, 2002 WI 28,
251 Wis. 2d 68,
640 N.W.2d 788,
00-1797.
905.03 Annotation
The test for invoking the crime-fraud exception under sub. (4) (a) is whether there is reasonable cause to believe that the attorney's services were utilized in furtherance of the ongoing unlawful scheme. If a prima facie case is established, an in camera review of the requested documents is required to determine if the exception applies. Lane v. Sharp Packaging Systems, 2002 WI 28,
251 Wis. 2d 68,
640 N.W.2d 788,
00-1797.
905.03 Annotation
Counsel's testimony on opinions, perceptions, and impressions of a former client's competency violated the attorney-client privilege and should not have been revealed without the consent of the former client. State v. Meeks, 2003 WI 104,
263 Wis. 2d 794,
666 N.W.2d 859,
01-0263.
905.03 Annotation
A lawyer's voluntary production of documents in response to opposing counsel's discovery request does not constitute a waiver of the attorney-client privilege under this section when the lawyer does not recognize that the documents are subject to the attorney-client privilege and the documents are produced without the consent or knowledge of the client. The agency doctrine does not apply to waiver of attorney-client privilege as it relates to privileged documents. Harold Sampson Trust v. Linda Gale Sampson Trust, 2004 WI 57,
271 Wis. 2d 610,
679 N.W.2d 794,
02-1515.
905.03 Annotation
Attorney-client privilege in Wisconsin. Stover and Koesterer. 59 MLR 227.
905.03 Annotation
Attorney-client privilege: Wisconsin's approach to exceptions. 72 MLR 582 (1989).
905.04
905.04
Physician-patient, registered nurse-patient, chiropractor-patient, psychologist-patient, social worker-patient, marriage and family therapist-patient and professional counselor-patient privilege. 905.04(1)(a)
(a) "Chiropractor" means a person licensed under
s. 446.02, or a person reasonably believed by the patient to be a chiropractor.
905.04(1)(b)
(b) A communication or information is "confidential" if not intended to be disclosed to 3rd 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 information or persons who are participating in the diagnosis and treatment under the direction of the physician, registered nurse, chiropractor, psychologist, social worker, marriage and family therapist or professional counselor, including the members of the patient's family.
905.04(1)(bm)
(bm) "Marriage and family therapist" means an individual who is licensed as a marriage and family therapist under
ch. 457 or an individual reasonably believed by the patient to be a marriage and family therapist.
905.04(1)(c)
(c) "Patient" means an individual, couple, family or group of individuals who consults with or is examined or interviewed by a physician, registered nurse, chiropractor, psychologist, social worker, marriage and family therapist or professional counselor.
905.04(1)(d)
(d) "Physician" means a person as defined in
s. 990.01 (28), or reasonably believed by the patient so to be.
905.04(1)(dm)
(dm) "Professional counselor" means an individual who is licensed as a professional counselor under
ch. 457 or an individual reasonably believed by the patient to be a professional counselor.
905.04(1)(e)
(e) "Psychologist" means a licensed psychologist, as that term is defined in
s. 455.01 (4), or a person reasonably believed by the patient to be a psychologist.
905.04(1)(f)
(f) "Registered nurse" means a nurse who is licensed under
s. 441.06 or licensed as a registered nurse in a party state, as defined in
s. 441.50 (2) (j), or a person reasonably believed by the patient to be a registered nurse.
905.04(1)(g)
(g) "Social worker" means an individual who is certified or licensed as a social worker, advanced practice social worker, independent social worker, or clinical social worker under
ch. 457 or an individual reasonably believed by the patient to be a social worker, advanced practice social worker, independent social worker, or clinical social worker.
905.04(2)
(2) General rule of privilege. A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made or information obtained or disseminated for purposes of diagnosis or treatment of the patient's physical, mental or emotional condition, among the patient, the patient's physician, the patient's registered nurse, the patient's chiropractor, the patient's psychologist, the patient's social worker, the patient's marriage and family therapist, the patient's professional counselor or persons, including members of the patient's family, who are participating in the diagnosis or treatment under the direction of the physician, registered nurse, chiropractor, psychologist, social worker, marriage and family therapist or professional counselor.
905.04(3)
(3) Who may claim the privilege. The privilege may be claimed by the patient, by the patient's guardian or conservator, or by the personal representative of a deceased patient. The person who was the physician, registered nurse, chiropractor, psychologist, social worker, marriage and family therapist or professional counselor may claim the privilege but only on behalf of the patient. The authority so to do is presumed in the absence of evidence to the contrary.
905.04(4)(a)(a)
Proceedings for hospitalization, guardianship, protective services, or protective placement or for control, care, or treatment of a sexually violent person. There is no privilege under this rule as to communications and information relevant to an issue in proceedings to hospitalize the patient for mental illness, to appoint a guardian in this state, for court-ordered protective services or protective placement, for review of guardianship, protective services, or protective placement orders, or for control, care, or treatment of a sexually violent person under
ch. 980, if the physician, registered nurse, chiropractor, psychologist, social worker, marriage and family therapist, or professional counselor in the course of diagnosis or treatment has determined that the patient is in need of hospitalization, guardianship, protective services, or protective placement or control, care, and treatment as a sexually violent person.
905.04(4)(am)
(am)
Proceedings for guardianship. There is no privilege under this rule as to information contained in a statement concerning the mental condition of the patient furnished to the court by a physician or psychologist under s.
54.36 (1) or s.
880.33 (1), 2003 stats.
905.04(4)(b)
(b)
Examination by order of judge. If the judge orders an examination of the physical, mental or emotional condition of the patient, or evaluation of the patient for purposes of guardianship, protective services or protective placement, communications made and treatment records reviewed in the course thereof are not privileged under this section with respect to the particular purpose for which the examination is ordered unless the judge orders otherwise.
905.04(4)(c)
(c)
Condition an element of claim or defense. There is no privilege under this section as to communications relevant to or within the scope of discovery examination of an issue of the physical, mental or emotional condition of a patient in any proceedings in which the patient relies upon the condition as an element of the patient's claim or defense, or, after the patient's death, in any proceeding in which any party relies upon the condition as an element of the party's claim or defense.
905.04(4)(d)
(d)
Homicide trials. There is no privilege in trials for homicide when the disclosure relates directly to the facts or immediate circumstances of the homicide.
905.04(4)(e)
(e)
Abused or neglected child or abused unborn child. 905.04(4)(e)2m.2m. There is no privilege for information contained in a report of child abuse or neglect that is provided under
s. 48.981 (3).
905.04(4)(e)3.
3. There is no privilege in situations where the examination of the expectant mother of an abused unborn child creates a reasonable ground for an opinion of the physician, registered nurse, chiropractor, psychologist, social worker, marriage and family therapist or professional counselor that the physical injury inflicted on the unborn child was caused by the habitual lack of self-control of the expectant mother of the unborn child in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree.
905.04(4)(f)
(f)
Tests for intoxication. There is no privilege concerning the results of or circumstances surrounding any chemical tests for intoxication or alcohol concentration, as defined in
s. 340.01 (1v).
905.04(4)(g)
(g)
Paternity proceedings. There is no privilege concerning testimony about the medical circumstances of a pregnancy or the condition and characteristics of a child in a proceeding to determine the paternity of that child under
subch. IX of ch. 767.
905.04(4)(h)
(h)
Reporting wounds and burn injuries. There is no privilege regarding information contained in a report under
s. 255.40 pertaining to a patient's name and type of wound or burn injury.
905.04(4)(i)
(i)
Providing services to court in juvenile matters. There is no privilege regarding information obtained by an intake worker or dispositional staff in the provision of services under
s. 48.067,
48.069,
938.067 or
938.069. An intake worker or dispositional staff member may disclose information obtained while providing services under
s. 48.067 or
48.069 only as provided in
s. 48.78 and may disclose information obtained while providing services under
s. 938.067 or
938.069 only as provided in
s. 938.78.
905.04 History
History: Sup. Ct. Order, 59 Wis. 2d R121;
1975 c. 393;
1977 c. 61,
418;
1979 c. 32 s.
92 (1);
1979 c. 221,
352;
1983 a. 400,
535;
1987 a. 233,
264; Sup. Ct. Order, 151 Wis. 2d xxi (1989);
1991 a. 32,
39,
160;
1993 a. 98;
1995 a. 77,
275,
436;
1997 a. 292;
1999 a. 22;
2001 a. 80;
2005 a. 387,
434;
2005 a. 443 s.
265;
2007 a. 53,
97,
130.
905.04 Annotation
Sub. (4) (a) applies to proceedings to extend a commitment under the sex crimes act. State v. Hungerford,
84 Wis. 2d 236,
267 N.W.2d 258 (1978).
905.04 Annotation
By entering a plea of not guilty by reason of mental disease or defect, the defendant lost the physician-patient privilege by virtue of s. 905.04 (4) (c) and the confidentiality of treatment records under s. 51.30 (4) (b) 4. State v. Taylor,
142 Wis. 2d 36,
417 N.W.2d 192 (Ct. App. 1987).
905.04 Annotation
A psychotherapist's duty to 3rd parties for dangerous patients' intentional behavior is discussed. Schuster v. Altenberg,
144 Wis. 2d 223,
424 N.W.2d 159 (1988).
