2023 New Mexico Statutes › Chapter 38 - Trials › Article 6 - Witnesses and Their Competency › Section 38-6-6 - Privileged communications.

A. No husband shall be compelled to disclose any communication made by his wife during the marriage, and no wife shall be compelled to disclose any communication made to her by her husband during the marriage.
B. An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of professional employment; nor can an attorney's secretary, stenographer or clerk be examined, without the consent of his employer, concerning any fact the knowledge of which has been acquired in such capacity.
C. In the courts of the state, no certified public accountant or public accountant shall be permitted to disclose information obtained in the conduct of any examination, audit or other investigation made in a professional capacity, or which may have been disclosed to said accountant by a client, without the consent in writing of such client or his, her or its successors or legal representatives.
D. If a person offers himself as a witness and voluntarily testifies with reference to the communications specified in this section, that is a consent to the examination of the person to whom the communications were made as above provided.
History:
Laws 1880, ch. 12, § 7; C.L. 1884, § 2081; C.L. 1897, § 3020; Code 1915, § 2174; C.S. 1929, § 45-512; Laws 1933, ch. 33, § 1; 1939, ch. 235, § 1; 1941 Comp., § 20-112; 1953 Comp., § 20-1-12; Laws 1973, ch. 223, § 1.
ANNOTATIONS
Compiler's notes.
— It has been stated in Ammerman v. Hubbard Broadcasting, Inc., 89 N.M. 307, 312, 551 P.2d 1354, 1359 (1976), that "no person has a privilege, except as provided by constitution or rule of . . . court . . .."
Cross references.
— For privileges generally,
see
Rule 11-501 NMRA.
Spousal privilege.
— This statute extends a spousal testimonial privilege to any communication. Rule 11-505 NMRA, however, provides that one spouse may prevent another from disclosing a confidential communication made during the marriage. Thus, the statute is far more comprehensive and seeks to grant a greater privilege than does the rule. The New Mexico supreme court has held that any conflict between the rules of evidence and statutes attempting to create evidentiary privileges must be resolved in favor of the rules. Section 38-6-6A NMSA 1978, which mirrors the older common law rule that neither spouse could be compelled to disclose a communication made during the marriage, does not govern the court's decision.
State v. Teel
, 1985-NMCA-115, 103 N.M. 684, 712 P.2d 792.
In suit for alienation of affections, letters written to plaintiff by her husband,
showing a deep affection for her, were competent to rebut claim of defendant that no affection existed and there was none to be lost.
Murray v. Murray
, 1925-NMSC-029, 30 N.M. 557, 240 P. 303.
Attorney-client privilege should only be applied to protect communications - not facts.
State ex rel. State Hwy. Comm'n v. Steinkraus
, 1966-NMSC-134, 76 N.M. 617, 417 P.2d 431.
Allowance of accountant's testimony held not error.
— The privilege in this section is available only to the client and where this privilege was not asserted by objection or otherwise, allowance of the testimony of defendant's accountant was not error.
Ash v. H.G. Reiter Co., Inc.
, 1967-NMSC-149, 78 N.M. 194, 429 P.2d 653.
Law reviews.
— For article, "New Mexico's Accountant-Client Privilege," see 37 N.M.L. Rev. 387 (2007).
For note, "Protecting Privileged Information-A New Procedure for Resolving Claims of the Physician-Patient Privilege in New Mexico-Pina v. Expinoza," see 32 N.M.L. Rev. 453 (2002).
Am. Jur. 2d, A.L.R. and C.J.S. references. —
81 Am. Jur. 2d Witnesses §§ 285, 286, 290.
Privilege of communication to attorney as affected by termination of employment, 5 A.L.R. 728.
Privilege of communication to attorney by client in attempt to establish false claim, 5 A.L.R. 977, 9 A.L.R. 1081.
Admissibility of statements by attorney out of court as to probability of verdict or decision adverse to client, 8 A.L.R. 1334.
Waiver by beneficiary or personal representative, in actions on insurance policy of privilege of communications to physician, 15 A.L.R. 1544.
Competency of hospital physician or attendant to testify as to condition of patient, 22 A.L.R. 1217.
Privilege as to family matters or affairs incidentally learned by physicians while professionally attending patient, 24 A.L.R. 1202.
Applicability and effect in suit for alienation of affections of rule excluding confidential communications between husband and wife, 36 A.L.R. 1068, 82 A.L.R. 825.
Privilege as to facts learned on autopsy or post-mortem examination, 58 A.L.R. 1134.
Instruction which either affirms or denies jury's right to draw unfavorable inference against party invoking privilege against testimony of physician, 131 A.L.R. 696.
Public health record as subject of privilege, 136 A.L.R. 856.
Public officers or employees, constitutionality, construction and effect of statute or regulation relating specifically to divulgence of information acquired by, 165 A.L.R. 1302.
Conversations between husband and wife relating to property or business as within rule excluding private communications between them, 4 A.L.R.2d 835.
Observed matters: "communications" within testimonial privilege of confidential communications between husband and wife as including knowledge derived from observation by one spouse of acts of other spouse, 10 A.L.R.2d 1389.
Construction and effect of statute removing or modifying, in personal injury actions, patient's privilege against disclosure by physician, 25 A.L.R.2d 1429.
Admissibility of evidence of unperformed compromise agreement, 26 A.L.R.2d 858.
Deadman's Statute as applicable to spouse of party disqualified from testifying, 27 A.L.R.2d 538.
Divorce: effect of divorce or annulment on competency of one former spouse as witness against other in criminal prosecution, 38 A.L.R.2d 570.
Wills: proof of due execution of lost will as affected by privilege attaching to attorney-client communications, 41 A.L.R.2d 401.
Nurse or attendant, privilege of communications by or to, 47 A.L.R.2d 742.
Waiver by party of privilege as to communications with counsel by taking stand and testifying, 51 A.L.R.2d 521.
Hypothetical question, right of physician, notwithstanding physician-patient privilege, to give expert testimony based on, 64 A.L.R.2d 1056.
Privilege as to communications to attorney in connection with drawing of will, 66 A.L.R.2d 1302, 75 A.L.R.4th 1144.
Executors: waiver of attorney-client privilege by personal representative or heir of deceased client or by guardian of incompetent, 67 A.L.R.2d 1268.
Calling or offering accused's spouse as witness for prosecution as prejudicial misconduct, 76 A.L.R.2d 920.
Spouse as competent witness for or against co-offender with other spouse, 90 A.L.R.2d 648.
Federal courts as following law of forum state with respect to privileged communications, 95 A.L.R.2d 320.
Persons other than client or attorney affected by, or included within, attorney-client privilege, 96 A.L.R.2d 125, 31 A.L.R.4th 1226.
Who may waive privilege of confidential communications to physician by person since deceased, 97 A.L.R.2d 393.
Corporation's right to assert attorney-client privilege, 98 A.L.R.2d 241, 26 A.L.R.5th 628, 27 A.L.R.5th 76.
Mental condition: testimony as to communications or observations as to mental condition of patient treated for other condition, 100 A.L.R.2d 648.
Tort: applicability of attorney-client privilege to communications with respect to contemplated tortious acts, 2 A.L.R.3d 861.
Waiver of privilege as regards one physician as a waiver as to other physicians, 5 A.L.R.3d 1244.
Applicability in criminal proceedings of privilege as to communications between physician and patient, 7 A.L.R.3d 1458.
Attorney-client privilege as affected by communications between several attorneys, 9 A.L.R.3d 1420.
Crime: attorney-client privilege as affected by its assertion as to communications, or transmission of evidence, relating to crime already committed, 16 A.L.R.3d 1029.
Disclosure of name, identity, address, occupation, or business of client as violation of attorney-client privilege, 16 A.L.R.3d 1047.
Commencing action involving physical condition of plaintiff or decedent as waiving physician-patient privilege as to discovery proceedings, 21 A.L.R.3d 912.
Pretrial testimony or disclosure on discovery by party to personal injury action as to nature of injuries or treatment as waiver of physician-patient privilege, 25 A.L.R.3d 1401.
Bankruptcy trustee: power of trustee in bankruptcy to waive privilege of communications available to bankrupt, 31 A.L.R.3d 557.
Admissibility of statements to physician by person since deceased, 37 A.L.R.3d 778.
Who is "clergyman" or the like entitled to assert privilege attaching to communications to clergymen or spiritual advisers, 49 A.L.R.3d 1205.
Matters to which the privilege covering communications to clergyman or spiritual adviser extends, 71 A.L.R.3d 794.
Competency of one spouse to testify against other in prosecution for offense against child of both or either, 93 A.L.R.3d 1018.
Effect, on competency to testify against spouse or on marital communication privilege, of separation or other marital instability short of absolute divorce, 98 A.L.R.3d 1285.
Admissibility of evidence discovered in search of defendant's property or residence authorized by defendant's spouse (resident or nonresident) - state case, 1 A.L.R.4th 673.
Spouse's betrayal or connivance as extending marital communications privilege to testimony of third person, 3 A.L.R.4th 1104.
Communication between unmarried couple living together as privileged, 4 A.L.R.4th 422.
Testimony before or communications to private professional society's judicial commission, ethics committee or the like, as privileged, 9 A.L.R.4th 807.
Existence of spousal privilege where marriage was entered into for purpose of barring testimony, 13 A.L.R.4th 1305.
Applicability of attorney-client privilege to communications made in presence of or solely to or by third person, 14 A.L.R.4th 594.
Attorney-client privilege as extending to communications relating to contemplated civil fraud, 31 A.L.R.4th 458.
Privilege as to communications between lay representative in judicial or administrative proceedings and client, 31 A.L.R.4th 1226.
Privileged communications between accountant and client, 33 A.L.R.4th 539.
Attorney as witness for client in civil proceedings - modern state cases, 35 A.L.R.4th 810.
Physician's tort liability for unauthorized disclosure of confidential information about patient, 48 A.L.R.4th 668.
Discovery: right to ex parte interview with injured party's treating physician, 50 A.L.R.4th 714.
Communications between spouses as to joint participation in crime as within privilege of interspousal communications, 62 A.L.R.4th 1134.
Compelling testimony of opponent's expert in state court, 66 A.L.R.4th 213.
Who is "representative of the client" within state statute or rule privileging communications between an attorney and the representative of the client, 66 A.L.R.4th 1227.
Invasion of privacy by a clergyman, church, or religious group, 67 A.L.R.4th 1086.
Crimes against spouse within exception permitting testimony by one spouse against other in criminal prosecution - modern state cases, 74 A.L.R.4th 223.
Competency of one spouse to testify against other in prosecution for offense against third party as affected by fact that offense against spouse was involved in same transaction, 74 A.L.R.4th 277.
Involuntary disclosure or surrender of will prior to testator's death, 75 A.L.R.4th 1144.
Adverse presumption or inference based on party's failure to produce or examine spouse - modern cases, 79 A.L.R.4th 694.
Determination of whether a communication is from a corporate client for purposes of the attorney-client privilege - modern cases, 26 A.L.R.5th 628.
What corporate communications are entitled to attorney-client privilege - modern cases, 27 A.L.R.5th 76.
Waiver of evidentiary privilege by inadvertent disclosure-state law, 51 A.L.R.5th 603.
Testimonial privilege for confidential communications between relatives other than husband and wife - state cases, 62 A.L.R.5th 629.
Marital privilege under Rule 501 of Federal Rules of Evidence, 46 A.L.R. Fed. 735.
Immunity's sufficiency to meet federal grand jury witness' claim of privilege against adverse spousal testimony, 82 A.L.R. Fed. 600.
Waiver of evidentiary privilege by inadvertent disclosure - federal law, 159 A.L.R. Fed. 153.
Views of United States Supreme Court as to attorney-client privilege, 159 A.L.R. Fed. 243.
97 C.J.S. Witnesses §§ 252 to 314.