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privilege-folderMany of those who are part of the legal profession, and many who are not, know about the most often referred to types of privilege: doctor-patient, attorney-client, priest-penitent, social worker-patient, union representative-union member. If the last one caught your eye, there may be a very good reason for that. This is a newly recognized form of privilege whose jurisprudence is not yet fully vetted in the courts, although from the limited jurisprudence that does exist on such privilege, courts seem reluctant to recognize it.

This type of privilege could become increasingly important in a post-Janus world. In Janus v. American Federation of State, County, and Municipal Employees, Council 31, No. 16-1466, 585 U.S. (2018), the Supreme Court ruled that unions charging bargaining unit members fees are unconstitutional under the First Amendment. With the substantial loss of revenue from non-union members, the union representative’s role in protecting union members from possible discipline through asserting privilege becomes increasingly important.

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