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Privilege – Counselor-Patient – Waiver: Volitional, Not Intentional

State v. Denis L.R., 2004 WI App 51, affirmed as modified2005 WI 110
For Denis L.R.: Richard Hahn; Dwight D. Darrow


¶15. This court recently analyzed whether waiver of the attorney-client privilege must be intentional under Wis. Stat. § 905.11. Sampson Children’s Trust v. Sampson 1979 Trust, 2003 WI App 141, 265 Wis. 2d 803, 667 N.W.2d 831, review granted, 2003 WI 140, 266 Wis. 2d 60, 671 N.W.2d 847 (Wis. Oct. 1, 2003) (No. 02-1515). There, the court held “as recognized by the Federal Advisory Committee note to proposed Fed. R. Evid. 511, which was adopted in Wisconsin as Wis. Stat. Rule 905.11, the formulation of waiver by Johnson v. Zerbst, 304 U.S. 458, 464 (1938), as the intentional relinquishment of a known right, does not apply to waiver of evidentiary privileges.” Sampson, 265 Wis. 2d 803, ¶11. Thus, if the “holder of the privilege” “voluntarily discloses” a communication shielded by evidentiary privilege under Wis. Stat. § 905.04, that disclosure need only be volitional.Sampson, 265 Wis. 2d 803, ¶17. “[O]nce confidentiality is destroyed through voluntary disclosure, no subsequent claim of privilege can restore it, and knowledge or lack of knowledge of the existence of the privilege appears to be irrelevant.” Id., ¶11 (citation omitted).¶16. Dawn contends that our holding in Sampson does not apply in this case because there we were discussing the attorney-client privilege. While we agree that there are nuances of Sampson that are inapposite to this case, it remains that the Sampson court held that a waiver of the attorney-client privilege under Wis. Stat. § 905.11 need only be volitional, not intentional. We see no sound reason to adopt a different rule in a counselor-patient setting. We therefore reject Dawn’s contention that the trial court erred in failing to consider her lack of intention in waiving Kirstin’s privilege by voluntary disclosure of confidential information to a third party.

The supreme court affirmed, but without reaching the issue of waiver of privilege, 2005 WI 110, ¶7. Because the supreme court didn’t actually overrule the portion of the court of appeal’s decision quoted above, it arguably retains its precedential value and thus remains posted.


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