13NFL2-Attorney Client Privilege.pdf

LINCOLN-DOUGLAS | November/December 2013

Resolved: In the United States criminal justice system, truth-seeking ought to take precedence over attorney-client privilege. Victory Briefs Topic Analysis Book: Lincoln-Douglas November/December 2013 – 13NFL2-Attorney Client Privilege © 2013 Victory Briefs, LLC Victory Briefs Topic Analysis Books are published by: Victory Briefs, LLC 925 North Norman Place Los Angeles, California 90049 Publisher: Victor Jih | Managing Editor: Adam Torson | Editor: Adam Torson | Topic Analysis Writers: Ed Hendrickson, Liz Scoggin, Adam Torson | Evidence: Mike Bietz, Rebecca Kuang, Nick Smith, Adam Torson For customer support, please email [email protected] or call 310.472.6364.

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TABLE OF CONTENTS

TABLE OF CONTENTS .................................................................................................. 2

TOPIC ANALYSIS BY ED HENDRICKSON .................................................................... 7

TOPIC ANALYSIS BY LIZ SCOGGIN ........................................................................... 16

TOPIC ANALYSIS BY ADAM TORSON ........................................................................ 24

AFFIRMATIVE EVIDENCE ........................................................................................... 31

TRUTH-SEEKING .............................................................................................................................. 31

ATTORNEY-CLIENT PRIVILEGE COMES AT A COST TO TRUTH-SEEKING............................................31

THE TRADEOFF BETWEEN ACP AND TRUTH IS INEVITABLE. ................................................................32

ACP COMES AT A HUGE TRADEOFF TO FACTS ESSENTIAL TO POLICY. .............................................33

FULL DISCLOSURE OF FACTS WOULD BE BETTER FOR RULE OF LAW. .............................................34

ACP LEADS TO THE SUPPRESSION OF INFORMATION. .........................................................................35

ATTORNEY-CLIENT PRIVILEGE PERVERTS THE ROLE OF LAWYERS FROM ADVOCATES TO SECRET-KEEPERS ......................................................................................................................................36

PROFESSIONAL RESPONSIBILITY ....................................................................................................... 37

CONFIDENTIALITY FROM ATTORNEY-CLIENT PRIVILEGE UNFAIRLY ADVANTAGES LAWYERS OVER OTHER SIMILAR PROFESSIONALS ............................................................................................................37

CONFIDENTIALITY FROM ATTORNEY-CLIENT PRIVILEGE COULD ENABLE CORPORATIONS TO HARM OR EXPLOIT SOCIETY THROUGH INVOLVING THEIR ATTORNEYS IN POTENTIALLY PROBLEMATIC SITUATIONS .......................................................................................................................38

IN MOST PROFESSIONAL SETTINGS CONFIDENTIAL COMMUNICATION YIELDS TO STRONGER PUBLIC OR THIRD PARTY INTERESTS ......................................................................................................39

TECHNICALITIES ............................................................................................................................... 40

ATTORNEY-CLIENT PRIVILEGE BETTER ENABLES CLIENTS TO EXPLOIT SHORTCOMINGS IN THE LAW TO THEIR PERSONAL ADVANTAGE AND TO THE DETRIMENT OF SOCIETY ...............................40

INQUISITORIAL VERSUS ADVERSARIAL JUSTICE SYSTEMS ................................................................... 41

INQUISITORIAL AND ADVERSARIAL CRIMINAL JUSTICE SYSTEMS ARE NOT AS DISTINCT AS THEY ONCE WERE .................................................................................................................................................41

THE MAIN DIFFERENCE BETWEEN THE INQUISITORIAL AND ADVERSARIAL SYSTEM IS THAT THE LATTER IS DESIGNED TO SEEK THE TRUTH WHERE THE LATTER IS DESIGNED TO RESOLVE THE DISPUTE PRESENTED BY THE PARTIES ..................................................................................................42

THE INQUISITORIAL MODEL OF CRIMINAL JUSTICE PLACES THE FOCUS ON THE INVESTIGATION RATHER THAN THE TRIAL, AND THE PRIMARY ACTORS ARE STATE AGENTS ...................................43

THE ADVERSARIAL SYSTEM DOES NOT ENGAGE IN MEANINGFUL TRUTH-SEEKING .......................44

ALLIED LAWYER SITUATIONS ............................................................................................................ 45

ATTORNEY-CLIENT PRIVILEGE SHOULD NOT EXTEND TO ALLIED LAWYER SITUATIONS. ...............45

CHAHOON V. COMMONWEALTH PROVES THE ALLIED LAWYER SITUATION SHOULD NOT ALLOW FOR ATTORNEY-CLIENT PRIVILEGE. ........................................................................................................46

BALANCING TEST ............................................................................................................................. 47



THE SUPREME COURT HAS LEGITIMIZED A BALANCING TEST TO CHECK THE ACP.........................47

CLIENT FRAUD EXCEPTION ............................................................................................................... 48

CLIENT FRAUD SHOULD BE AN EXCEPTION TO THE ACP. ....................................................................48

FRAUD IS ALWAYS AN EXCEPTION TO PRIVILEGE. ................................................................................49

THE SARBANES-OXLEY ACT EXPANDED THE CONDITIONS UNDER WHICH A LAWYER CAN DISCLOSE CLIENT CONFIDENCES TO PREVENT A CRIME OR FRAUD .................................................50

DEATH/BODILY INJURY EXCEPTION ................................................................................................... 51

DEATH OR SUBSTANTIAL BODILY INJURY SHOULD BE AN EXCEPTION TO THE ACP. ......................51

CORPORATE EXCEPTION .................................................................................................................. 52

THE PRIVACY ARGUMENT FOR ACP DOES NOT APPLY TO CORPORATIONS. ....................................52

LAWYERS HAVE NO SPECIAL OBLIGATION TO PRIVILEGE IN A CORPORATE SETTING. ...................53

SINCE CORPORATIONS ARE NOT PEOPLE, THEY DO NOT DESERVE ATTORNEY-CLIENT PRIVILEGE. ...................................................................................................................................................54

ACP ALLOWS COMPANIES TO HIDE DATA. ..............................................................................................55

SELECTIVE WAIVER .......................................................................................................................... 56

THE SELECTIVE WAIVER HAS WEAKENED THE ACP. .............................................................................56

CONSTITUTION ................................................................................................................................. 57

THE ACP CANNOT OVERRIDE CONSTITUTIONAL OBLIGATIONS. .........................................................57

THE RIGHT TO PRIVACY DOESN’T APPLY. ...............................................................................................57

THE SELF-INCRIMINATION ARGUMENT ASSUMES ITS OWN CONCLUSION. .......................................58

LAWYER MORALITY .......................................................................................................................... 59

LAWYERS MUST OBEY THEIR OWN CONSCIENCE IN ADDITION TO THE RULES OF THE SYSTEM ..59

LUBAN ARGUES THAT LAWYERS SHOULD MAINTAIN THEIR MORAL AGENCY IN THE ATTORNEY-CLIENT RELATIONSHIP ...............................................................................................................................60

THE LAWYER MORALITY ARGUMENT IS JUST AN EXCUSE. ..................................................................61

NATIONAL SECURITY ........................................................................................................................ 62

SUSPENSION OF ACP IS NECESSARY FOR NATIONAL SECURITY. ......................................................62

WE MUST ALWAYS BE WILLING TO MAKE VALUE TRADEOFFS BETWEEN CIVIL LIBERTIES AND NATIONAL SECURITY. .................................................................................................................................63

ACP MEANS NOTHING NOW THANKS TO NSA SPYING. .........................................................................64

NO FILES ARE SAFE—ACP IS IRRELEVANT. ............................................................................................65

AT DISCLOSURE .............................................................................................................................. 66

EMPIRICAL STUDIES DISPROVE THE ARGUMENT FROM DISCLOSURE. .............................................66

ACP IS NOT THE REASON CLIENTS CONSULT THEIR LAWYERS. .........................................................67

THE IMPORTANCE OF ACP TO DISCLOSURE IS A MYTH........................................................................68

ACP DOES NOT PROTECT THE LITIGANT FROM SUPPLYING RELEVANT FACTS TO ITS OPPONENT. .......................................................................................................................................................................69

ACP DOESN’T PROTECT EMPLOYEES OF CORPORATIONS. .................................................................70

CORPORATE EMPLOYEES HAVE OTHER INCENTIVES FOR CANDOR. .................................................71

DISCLOSURE WOULDN’T BETRAY A LOYALTY OR DUTY TO A CLIENT IF THE EXPECTATION OF THE CLIENT TO CONFIDENTIALITY WERE TO NO LONGER EXIST ........................................................72



AT INCREASES COMPLIANCE ............................................................................................................ 73

ATTORNEY-CLIENT PRIVILEGE DOES NOT INCREASE OR ENCOURAGE GENUINE COMPLIANCE WITH THE LAW .............................................................................................................................................73

EVEN IF ERRODING ATTORNEY-CLIENT PRIVILEGE DOES LIMIT THE ABILITY TO ENCOURAGE COMPLIANCE, INSTANCES WHERE COMPLIANCE CAN BE ENCOURAGED WOULD BE MORE MEANINGFUL ...............................................................................................................................................74

ATTORNEY-CLIENT PRIVILEGE IS NOT NECESSARY TO ENCOURAGE COMPLIANCE WITH THE LAWS AS THERE ARE WAYS TO CIRCUMVENT DISCLOSURE ...............................................................75

NEGATIVE EVIDENCE ................................................................................................. 76

DEFINITIONS .................................................................................................................................... 76

MODERN DEFINITION OF ATTORNEY-CLIENT PRIVILEGE ......................................................................76

DEFINITION ...................................................................................................................................................77

THE MODERN RATIONALE FOR ATTORNEY-CLIENT PRIVILEGE IS UTILITARIAN. ...............................78

ATTORNEY-CLIENT PRIVILEGE INVOLVES A CONFIDENTIALITY REQUIREMENT ...............................79

THE ATTORNEY-CLIENT PRIVILEGE HAS MANY CONDITIONS. .............................................................80

THE ATTORNEY-CLIENT PRIVILEGE IS NARROWLY CONSTRUED TO PREVENT IMPEDING DISCOVERY OF THE TRUTH. ......................................................................................................................81

WORK-PRODUCT IMMUNITY IS DIFFERENT FROM ATTORNEY-CLIENT PRIVILEGE ...........................82

ACP AND CONFIDENTIALITY ARE NOT THE SAME THING ......................................................................83

ATTORNEY-CLIENT PRIVILEGE SHOULD BE DYNAMIC TO ACCOUNT FOR CHANGING SOCIAL NORMS..........................................................................................................................................................84

SCOPE AND REASONABLENESS OF ACP ........................................................................................... 85

PROSECUTORIAL SUBPOENAS DIRECTED AT LAWYERS DO NOT CHANGE THE SCOPE OF THE ATTORNEY-CLIENT PRIVILEGE ..................................................................................................................85

MODERN COURTS HAVE ACTUALLY STRENGTHENED THE ACP IN SEVERAL WAYS ........................86

THE BALANCING TEST FOR ACCIDENTAL DISCLOSURES IS MORE PROTECTIVE OF PRIVILEGE THAN THE AUTOMATIC WAIVER DOCTRINE ............................................................................................87

THE CRIME/FRAUD EXCEPTION CHECKS BACK UNREASONABLE USES OF ACP ..............................88

RULES FOR WAIVER OF ACP SERVE AS A CHECK AGAINST ABUSE OF THE PRIVILEGE ..................89

BARRING SELECTIVE WAIVER IS A CHECK ON ACP ...............................................................................90

EXCEPTIONS .................................................................................................................................... 91

THERE ARE MULTIPLE EXCEPTIONS AND CONDITIONS TO THE ACP..................................................91

WAIVER ........................................................................................................................................... 92

SELECTIVE WAIVER IS NO BETTER ..........................................................................................................92

IF CLIENT COMMUNICATES INFO TO A 3RD

PARTY, PRIVILEGE IS EFFECTIVELY WAIVED ................93

DISCLOSURE AND EFFECTIVE REPRESENTATION ............................................................................... 94

THE ATTORNEY-CLIENT PRIVILEGE ENCOURAGES CLIENTS TO MAKE DISCLOSURE TO THEIR ATTORNEYS .................................................................................................................................................94

CONFIDENTIALITY BETWEEN ATTORNEYS AND CLIENTS IS THE CORNERSTONE OF LEGAL PRACTICE. ....................................................................................................................................................95

ACP ALLOWS CLIENTS TO SPEAK FREELY ABOUT THEIR LEGAL PROBLEMS. ..................................96

ACP ALLOWS FOR THE MOST EFFECTIVE LEGAL REPRESENTATION. ................................................97



THE ACP PROMOTES BROADER SOCIETAL GOALS. ..............................................................................98

WITHOUT THE ACP, LAWYERS BECOME NOTHING MORE THAN MESSENGERS. ...............................99

GIVEN THE IMPORTANCE OF BEING ABLE TO PROPERLY NAVIGATING THE LEGAL SYSTEM, ATTORNEY-CLIENT PRIVILEGE IS THE MOST IMPORTANT PRIVELEGE AFFORDED TO CLIENTS ..100

INCREASE COMPLIANCE WITH THE LAW ........................................................................................... 101

ATTORNEY-CLIENT PRIVILEGE COULD FACILITIE FURTHER COMPLIANCE WITH THE LAW ...........101

ADVERSARIAL VERSUS INQUISITORIAL MODEL OF JUSTICE ............................................................... 102

THE ADVERSARIAL MODEL OF CRIMINAL JUSTICE TREATS BOTH PARTIES AS EQUALS AND SEEKS TRUTH THROUGH BOTH SIDES PLEADING THEIR RESPECTIVE CASES TO A NEUTRAL TRIER OF FACT. .........................................................................................................................................102

IN CONTRAST THE INQUISITORIAL SYSTEM, THE ADVERSARIAL SYSTEM FOCUSES ON PROCEDURAL FAIRNESS .........................................................................................................................103

THE INQUISITORIAL SYSTEM EMPHASIZES THE VALUE OF A CONVICTION TO THE COMMUNITY WHERE THE ADVERSARIAL SYSTEM EMPHASIZES THE RIGHTS AND DIGNITY OF THE ACCUSED .....................................................................................................................................................................104

CORPORATE ACP .......................................................................................................................... 105

HOW CORPORATIONS CLAIM PRIVILEGE DIFFERS ..............................................................................105

CORPORATE ATTORNEY-CLIENT PRIVILEGE DEFAULTS TO COMMON LAW ....................................106

ATTORNEY-CLIENT PRIVILEGE IS KEY FOR BUSINESSES TO MAKE GOOD DECISIONS .................107

DOJ CANNOT COERCE EMPLOYEES TO GET AROUND ACP DURING EVIDENCE DISCOVERY .......108

THE DOJ HAS INCREASED IT'S INVESTIGATORY POWER TO TRY TO OVERRIDE ACP ....................109

TO AVOID FUTURE INVESTIGATION BY THE DOJ, MANY CORPORATE ATTORNEY'S ARE ENTERING SELECTIVE WAIVERS ................................................................................................................................111

SARBANES-OXLEY WILL EXPOSE ATTORNEY’S TO LITIGATION FOR FAILURE TO DISCLOSE AND UNDERMINE ACP .......................................................................................................................................112

JOINT-CLIENT SITUATIONS ............................................................................................................. 113

ATTORNEY-CLIENT PRIVILEGE SHOULD EXTEND TO JOINT CLIENT SITUATIONS. ..........................113

NARROW INTERPRETATION ............................................................................................................. 114

ACP IS NARROWLY INTERPRETED WITH MULTIPLE EXCEPTIONS. ....................................................114

OLD JUSTIFICATION ........................................................................................................................ 115

THE ORIGINAL JUSTIFICATION FOR ACP WAS BASED ON PROTECTION AGAINST PERJURY. .......115

UTILITARIAN ARGUMENT ................................................................................................................. 116

THE UTILITARIAN JUSTIFICATION FOR ACP HAS GONE VIRTUALLY UNCHALLENGED. ...................116

RESILIENT ..................................................................................................................................... 117

THE ACP HAS BEEN A RESILIENT CORNERSTONE OF AMERICAN LEGAL JURISPRUDENCE. ........117

SIXTH AMENDMENT RIGHTS ............................................................................................................ 118

SIXTH AMENDMENT PROTECTIONS JUSTIFY ATTORNEY-CLIENT PRIVILEGE. .................................118

GRAND JURY INVESTIGATIONS ........................................................................................................ 119

IF ACP IS WRONGLY BREACHED IN A GRAND JURY HEARING, THERE IS NO APPROPRIATE REMEDY UNDER THE FEDERAL RULES OF EVIDENCE ........................................................................119

AT CRIME FRAUD .......................................................................................................................... 120

THE ACP HAS AN EXCEPTION FOR CRIME FRAUD. ..............................................................................120



AT ELECTRONIC DISCLOSURE ........................................................................................................ 121

THE CLAW-BACK CLAUSE PREVENTS INADVERTENT WAIVING OF THE ACP. ..................................121

DISCOVERY HEARINGS PREVENT INADVERTENT WAIVING OF THE ACP. ........................................122

THIRD-PARTY PROTECTIVE ORDERS PREVENT INADVERTENT WAIVING OF THE ACP. .................123

REMOVING METADATA PREVENTS INADVERTENT WAIVING OF THE ACP. .......................................124

ATTORNEY REVIEW PREVENTS INADVERTENT DISCLOSURE. ...........................................................125

AT TERRORISM .............................................................................................................................. 126

ATTORNEY-CLIENT PRIVILEGE IS ESPECIALLY IMPORTANT IN THE CONTEXT OF THE WAR ON TERROR. .....................................................................................................................................................126

EXISTING MECHANISMS ALLOW FOR MONITORING THE ACP. ...........................................................127

WE HAVE MECHANISMS TO OVERSEE SURVEILLANCE WHEN IT AFFECTS NATIONAL SECURITY. .....................................................................................................................................................................128

THERE ARE MULTIPLE PROBLEMS WITH POST-9/11 RESTRICTIONS ON ACP. .................................129

POST-9/11 MEASURES VIOLATE OUR RIGHT TO PRIVACY. .................................................................131

AT ABOLITION OF ACP .................................................................................................................. 132

ABOLISHING ATTORNEY-CLIENT PRIVILEGE WOULDN’T BENEFIT TRUTH-SEEKING AS THERE ARE WAYS TO CIRCUMVENT ATTORNEYS BEING REQUIRED TO DISCLOSE ............................................132



Topic Analysis by Ed Hendrickson

Attorney-client privilege, a quick Wikipedia search will inform you, is a legal concept wherein

communications between a lawyer and their client are kept confidential. However, a few more

subtle nuances can be exposed that make the resolution somewhat more interesting and

complex. Darnell, Raymond, and Richard, in their creatively titled article “Attorney-Client

Privilege”, contextualize our Wiki definition as follows:

The attorney client privilege is the older of the common law privileges, and is an exception to the

general duty to disclose discoverable evidentiary information. Like all evidentiary privileges, the

underlying theory of the attorney-client privilege is the protection of “interests and relationships

which, rightly or wrongly, are regarded as of sufficient social importance to justify some incidental

sacrifice of sources of facts needed in the administration of justice.”1

Essentially, attorney-client privilege means that attorneys do not need to testify against their own

client in the interest of protecting certain sources of facts. From this definition, we can derive that

the essential argument in favor of this tradition is something like as follows: attorney-client

privilege protects the relationship between an attorney and a client, for whatever reason, at the

expense of “sources of facts needed in the administration of justice.” In other words, attorney-

client privilege is only an issue when it comes into conflict with the desire of the court to find out

confidential information; attorney-client privilege is only really talked about in the literature when it

is already in conflict with truth-seeking paradigms of justice.

However, attorney-client privilege should be defined in a larger scope of what’s known as the

“adversarial system” (in contrast with the “inquisitorial system”). The belief of an adversarial court

is that the best way to resolve disputes is to have to parties represent their perspectives on an

issue, debate it out, and attempt to persuade an impartial judge or jury of their case. Justice is

served when one party, either the prosecution or the defense, has persuaded the judge or jury of

their case. By contrast, an inquisitorial system often places a higher priority on the uncovering of

the truth, and consequently grants the court the power to investigate the facts of the case. Used

predominantly in places where civil law is used, these courts seek out the truth, instead of acting

as arbiters in a debate between two sides. The principles of these two legal systems seem starkly

in contrast: while one forwards an effort to preserve the privacy of the two parties (perhaps out of

respect for the client’s privacy, perhaps so that attorney’s can construct strategies for the court

with some element of surprise), the other attempts to pull the truth out of the parties. Attorney-

1 Darnell, Robert, Raymond Kramer, and Richard J. Rabin. "Attorney-Client Privilege." Am. Crim.

L. Rev. 29 (1991): 623.



client privilege acts as a crossroads issue between these two, since adversarial systems place a

greater emphasis on the preservation of procedural rights, while inquisitorial systems admonish

such efforts as obstructions of the truth.

It’s important to note that the resolution is not claiming attorney-client privilege should be

abolished. Quite the opposite, the resolution seems to acknowledge the aforementioned

controversy and engage in a prioritization of one legal system above another. Indeed, “[i]n

present-day law, the issue concerning the attorney-client privilege is not whether it should exist,

but precisely what its terms should be. There is no responsible opinion suggesting that the

privilege be completely abolished. Total abolition would mean that an accused in a criminal case

could not explain his version of the matter to his lawyer without its being transmitted to the

prosecution. Defense counsel would become a medium of confession.”2 As Hazard rightly points

out, binding the affirmative to total abolition puts her in an impossible position, and certainly not

one that is defended in the literature.

But if not total abolition, what? Already, exemptions exist to attorney-client privilege. For instance,

lawyers can disclose information that was never confidential or that has come into the public

domain. One notable exemption here that I’ll mention before delving into some of the more dicey

aspects of attorney-client privilege is the case of fraud or tort. A lawyer is not required to keep

confidential information that may enable a client to commit future crimes or fraud. In other words,

one cannot go to the lawyer seeking tips on how to commit a crime. The reason I note these

exemptions is because they are largely accepted within the literature; James Gardner writes that

“[n]ot even the heartiest proponents of the privilege have opposed the crime or tort exception, and

it is now a well-established part of our law of attorney-client privilege.”3

So the affirmative advocacy has to be something that isn’t abolition and that doesn’t force onto

the negative standards that no one reasonable within the field recognizes. Below, I will discuss

several interesting issues within attorney-client privilege that hopefully will spark some questions

about who (or what) a client is and what the privilege should protect.

Who is the client?

2 Hazard, Geoffrey C. "An Historical Perspective on the Attorney-Client Privilege." California Law

Review 66.5 (1978): 1061-1091. 3 Gardner, James A. "Crime or Fraud Exception to the Attorney-Client Privilege, The." ABAJ 47

(1961): 708.



It is easy to become mislead about who a client might be. Media representations of the law take

place almost exclusively with a single person with a single attorney, fighting it out in a court,

maybe once or twice, before at last a decision is reached. The arguments in favor of individuals

are simple: attorney-client privilege encourages attorneys to pay thorough attention to their

clients, it cements the relationship between attorneys and their clients, and it fosters goodwill

between the attorney and the client such that the client is willing to disclose information relating to

the crime. However, this is not always the case.

One of the most important debates in the literature deals with a legal situation involving totally

different entities: corporations. In the status quo, corporations are protected by attorney-client

privilege. Do the same arguments in favor of attorney-client privilege for individuals apply to

corporations? Several problems arise which would seem to suggest that in corporate disputes it is

better to seek out the truth instead of protecting a particular client. For one, it is unclear exactly to

whom the privilege is extended, and whose interests the attorney is protecting, considering that a

corporation is composed of different individuals. Moreover, attorney-client privilege relies upon

the exchange of legal advice, not business advice; the line between these two is often blurred,

and attorneys can be compelled to disclose information that may have been said with the

expectation of confidence. Let’s say an employee confides in the company’s lawyer that she’s

worried the product might be defective. She told her boss, but because of budget cuts, cheaper

plastic had to be substituted for the original material; they now could break more easily,

potentially endangering clients. The attorney in this situation is in a tricky spot should a lawsuit

come about because of the defective product. Not only is her obligation to the corporation, and

not individual employees, but her ability to withhold information is substantially diminished. If

asked “did employees know the products were defective?” the attorney would have to answer,

since this information is not technically protected by the attorney-client privilege. The implication

of the corporation’s complexity is that attorney-client privilege seems to diminish the arguments in

favor of a strong attorney-client privilege; after all, confidentiality cannot be protected and the

relationship between clients and their attorneys rests upon uncertain ground. Therefore, it seems

unlikely that attorney-client privilege would increase trust between the attorneys and their clients.4

The impact is pretty useful, especially if you come from a kritik orientation like I do. The

arguments outlined above seem to delegitimize the utility of attorney-client privilege for

corporations, but why does that mean we prefer a truth-seeking paradigm? Well, the linking of

cooperation with waiving attorney-client privilege that became normal after the 2002 Sarbanes-

4 Thornburg, Elizabeth. "Sanctifying Secrecy: The Mythology of the Corporate Attorney-Client

Privilege." Notre Dame Law Review 69 (2007): 158.



Oxley Act is used as a mechanism for examining the guts of a corporation for accounting

scandals; a government investigation of a corporation goes more smoothly for the company if

they waive their attorney-client privilege. The Sarbanes-Oxley Act arose in response to several

major corporate accounting scandals (like Enron), and it imposes penalties on corporations that

don’t cooperate. Aside from limiting the reach of corporations in an anti-capitalist, kritiky way, it

also has very tangible utilitarian benefits—corporate scandals decrease trust in the economy and

cause erratic behavior in capital markets.5

Another interesting potential client to consider is somewhat less obvious: the dead. Most courts

have agreed that attorney-client privilege does extend past death, such that a lawyer may not

reveal information about their client even after they have died. The only exception, it seems, is

when there is some ambiguity in the execution of a will; in this instance, the lawyer may disclose

privileged information so as to clarify the intent of the will. Swidler & Berlin vs. United States

tackled the issue, and the Supreme Court resolved that, in the interest of encouraging frank

communication between the attorney and the client, attorney-client privilege survives the client.

There is an interesting scholarly debate, however, about the merits of this decision, and it’s

certainly something to look into in the interest of getting a really good grasp on how far attorney-

client privilege can extend.

Another, final question of who is the client lies in the government. What is the scope of attorney-

client privilege when the client is a government worker speaking to a government lawyer? The

argument goes that, absent attorney-client privilege, people would be unwilling to take positions

in the government, since there would be no guarantee that legal help they needed would be

confidential. However, attorney-client privilege is useless unless the protections are clear. A

government lawyer by no means has clear obligations: they could extend privilege to individual

workers, offices, branches, or the whole of the government—where exactly are the lines drawn in

such a situation where the client is not clearly defined? Attorney-client privilege where the

government is the client seems problematic since it allows the government to withhold

information, essentially, from the government’s own criminal justice process. There seems to be a

consensus that treating the government like an individual is the wrong approach (there’s some

discussion about treating them as an agency, though this literature doesn’t seem particularly

fecund).

These arguments, I can assure you, all have equally interesting negatives. Many authors argue

5 For a good negative response, see McLucas, William R., Howard M. Shapiro, and Julie J. Song.

"The decline of the attorney-client privilege in the corporate setting." The Journal of Criminal Law and Criminology (1973-) 96.2 (2006): 621-642.



that because the exact nature of the obligation is unclear, the law should strengthen attorney-

client privilege, since weak attorney-client privilege is worthless, while full disclosure to a lawyer

enables the best representation possible—this applies to governments, corporations, and even

the soon-to-be-deceased. As far as converting them into negatives, the argument would be

simple enough to set up as a PIC run against a stock affirmative.

What should attorney-client privilege protect?

Now that we’ve sort of got our heads around who is being represented, what exactly does this

privilege protect? Here, a lot of border cases yield interesting inconsistencies, suggesting that the

bright line on what is worthy of protection has yet to be drawn.

Take, for instance, the case of terrorism (this is another kritik-fecund subject). The controversial

Patriot Act outlines that, in the interest of surveillance in response to terrorism, investigations may

harvest information through less-than Constitutional means, e.g. wiretapping. Consequently,

attorney-client privilege is dampened or broken altogether since investigators can simply listen in

on private conversations. Now this sort of truth-seeking could be seen as very valuable; gathering

information on terrorist activities is especially useful for the little utilitarian in us, who’s been

wondering how to get a nuke war impact from attorney-client privilege. To the savvy, perhaps K-

happy debater, however, one can contextualize this truth-seeking within a broader narrative of

U.S. imperialism. It’s not hard to see how nosy searching without procedural checks is the same

mentality that led to U.S. incursions into Iraq, a broader discourse of downplaying the significance

of civil rights in exchange for the hope of protection. What’s scary about this may not even be the

K impact story—there’s probably a justice-based framework argument to make that simply states

that the indefinite detention of suspected terrorists, the violation of their access to an attorney,

and ultimately the abuse of attorney-client privilege in order to collect information on terrorism—

these things are unjust.6

Another interesting angle, this one a bit more affirmative friendly, might be to consider the role

that ongoing crimes play, particularly that of child abuse. Acknowledging that child abuse is a

heinous crime, the legal tradition has shown a push towards more and more severe laws in

response. Efforts are directed at maximizing reporting of the crime. Consequently, legislation is

directed at recruiting lawyers as reporters of child abuse, such that if a client were to confide that

her husband abused her children, the lawyer would have to abrogate the privilege. Certainly,

there could be compelling reasons to argue for this extension, as well as reasons why that would

6 An interesting article in this vein: Cohn, Marjorie. "Evisceration of the Attorney-Client Privilege in

the Wake of September 11, 2001, The." Fordham L. Rev. 71 (2002): 1233.



damage the trust clients place in their lawyers.7

There are some interesting feminist implications if we extend that same duty-to-report argument

to domestic violence as well. There is some debate in the literature about the tension between

attorney-client privilege and the potential harm that may come to the client without intervention. In

the case of domestic violence, victims are often pressured to remain silent by the abuser, who

controls their spouse financially, physically, or mentally. The cyclic nature of domestic violence

also makes lawyers ill equipped to claim that their clients are in immanent danger. However, if

attorney-client privilege could be violated so that the attorney could get protection for their client,

a significant reduction in domestic violence might be seen (I say might because there’s also some

controversy in the literature about whether harsh anti-domestic violence legislation works, and

whether it damages victims as well as their abusers).8

Any reduction in domestic violence would be a supremely good thing, simply because reporting

might have significantly improved the quality of the client’s life. However, the implications, from a

debate perspective, might be much more far reaching. Domestic violence has some deeply

thoughtful feminist literature. One could argue that turning the law towards a feminist

jurisprudence would be a major blow towards patriarchy, and therefore a reduction in attorney-

client privilege signals a decline in oppression everywhere. A debater might even go further,

suggesting that the very idea of attorney-client privilege is part of the public/private dichotomy that

has kept domestic violence tucked out of public opinion. Truth-seeking might be a much more

attractive option if we view the law in this way, since it breaks down that belief that some

information is too private to be disclosed.

A comment on strategy and fiat:

I’ve been speaking very generally about potential affirmative and negative arguments, but there

are a few things I should point out about the resolution that affect strategy and case construction.

While the aforementioned issues are largely problems and holes in existing legal thought at the

outskirts of the literature, it’s important to go over the basics.

First, how might one construct an aff? I’d argue that one can interpret the resolution as saying

7 Article in this vein: Mosteller, Robert P. "Child Abuse Reporting Laws and Attorney-Client

Confidences: The Reality and the Specter of Lawyer as Informant." Duke Law Journal 42.2 (1992): 203-278. 8 Drew, Margaret B., and Sarah Buel. "Do Ask and Do Tell: Rethinking the Lawyer's Duty to Warn

in Domestic Violence Cases." University of Cincinnati Law Review 75.2 (2006): 447-496.



that the affirmative must show that truth-seeking is a more important concern that attorney-client

privilege; therefore, narrowing the case down to a single instance wherein it would be better to

override attorney-client privilege seems like a sufficient way to prove that. But the affirmative

doesn’t have to specify a particular instance. A general, non-fiat oriented affirmative is possible:

one need only say that the principles of truth-seeking are more important for the U.S. criminal

justice system than those backing attorney-client privilege.

Complications with fiat might arise from a lack of a clear actor. We can just assert that the U.S.

government does something, but that seems like a superficial response to what is a very

challenging question. One might consider fiating with the courts, although the dramatic

restructuring necessary to shift the United States criminal justice system to an inquisitorial system

instead of an adversarial one seems insurmountable; likewise, fiating legislation that weakens 6th

amendment protections to provide a less-than-dependable attorney seems to be more polemical

than one might desire. I think that the easiest way to avoid these problems is to write plans that

are narrower—instead of attempting to restructure the whole of the criminal justice system, a

debater might consider weakening attorney-client privilege to include certain, tangible benefit

(e.g. child abuse reporting, not in the case of corporations), while avoiding nebulous

generalizations that are just as ambiguous as existing attorney-client relationships. Specificity is

actually far better in this case, particularly for the negative. An affirmative which attempts to give

too much leeway on what they fiat opens itself up to the criticism that attorney-client privilege was

just as ambiguous before the plan as after.

So the negative is likely to face one of two things: a very specific fiating affirmative or a very

broad affirmative without fiat. The strategic value of reading a plan on this topic is tempered

somewhat by the fact that negative arguments (with the exception of some of the kritikal

arguments mentioned above) are fairly uniform: attorney-client privilege is essential to ensuring

that clients get the best representation they can, which is a key component to the adversarial

system of justice. This argument is a sort of one-size-fits-all negative. However, I would not

disparage the idea of writing several PICs on this topic, assuming that the aff doesn’t fiat

something very specific. This gives the negative turn ground that she would not normally have

considering the simplicity of the two sides.

The final thing that I think negatives should be ready to do is debate topicality. The meat of this

topic is not in attorney-client privilege is general—most authors, as mentioned above, seem to

accept that some privilege is acceptable so long as it’s not really in the way of justice. But the

resolution says that “truth-seeking ought to take precedence over attorney-client privilege,” the

suggestion being that the two coexist. Like the Jan-Feb topic of 2013, this resolution is a question



of prioritization. The prioritization of rehabilitation above retribution, however, dealt with concepts

that were always in conflict; no law would be structured the same way in a retributive system as in

a rehabilitative one. This is not the case for attorney-client privilege and truth-seeking. In fact,

many authors argue that the best way to reach the truth in a criminal case is to have vigorous

debate on the subject. A modified reading of the resolution should then come about as “when in

conflict, we should give greater weight to arguments that favor the truth behind a crime as

opposed to arguments which protect attorney-client privilege first.” Under this reading, it seems

that specifying issues is inevitable and beneficial. The affirmative could, conceivably, defend

every instance where the two are in conflict, but no overhaul to an inquisitorial system is topical.

A comment on framework

The last issue I want to address in this topic analysis is a framework-oriented approach to the

resolution, since I’ve invested most of my time here speaking to plan-type affirmatives and

negatives.

The adversarial system’s tradition of attorney-client privilege boils down to the central belief that

representation is best when a client is assured of the confidentiality of what they disclose to their

lawyer. Philosophically, this argument is characterized in the literature by an emphasis on dignity

and privacy, as well as the additional benefit of ensuring the highest quality representation (it

would be a mistake to assume attorney-client privilege is grounded only in the latter). Many

scholars also find reason for attorney-client privilege in the 6th Amendment, so negatives will most

likely be taking a non-consequentialist approach. I say most because it’s certainly possible to

make some of the K type arguments mentioned above as utilitarian arguments, but by and large,

the literature is based in the belief that adversarial procedures are more just than truth-seeking

procedures.

By contrast, inquisitorial systems place a greater emphasis on truth as a means to justice, as well

as the utilitarian benefits of overriding attorney-client privilege. A utilitarian framework is easy,

certainly, since a debater would only need to prove that attorney-client privilege blocks some kind

of crime-preventing action—e.g. child abuse, domestic violence. The downside of this argument

is that it does little to surprise negatives who are likely to defend adversarial systems. Because

the resolution is a comparison between two systems, with the affirmative fiating a deviation from

the status quo and the negative defending the status quo (I don’t see counter-plans being read on

this topic, since the scope of affirmative fiat is so small already, negatives would be hard pressed

to justify enormous sweeping revisions), it might be more strategic to in some way attempt to

couch answers within the affirmative. A framework that argued, for instance, for a justice system



structured around truth would not only affirm, but it would also contain an embedded response to

the negative argument that attorney-client privilege ensures good representation.

I think that really this topic is a lot more diverse than it would appear on the surface. To conclude,

I’d like to note that there are really a ton of ways you can run with this topic, especially if you’re

willing to broaden your understanding of what a client can be, what constitutes truth-seeking, and

what crimes should be protected.



Topic Analysis by Liz Scoggin

I. Definitions

As always, I think many rounds will come down to how debaters are able to grab ground with their

definitions. In this case, we have three big concepts: (1) the United States criminal justice system,

(2) truth-seeking and (3) attorney-client privilege. All three of these are absurdly broad ideas. The

criminal justice system is not merely trials, but includes evidentiary hearings, probable cause

hearings, probation violation hearings, plea hearings, and a whole panoply of other pre-trial

options. There are also post-trial options, like post-conviction appeals and sentencing

modifications. And what on earth does “truth-seeking” mean? Attorney-client privilege is thankfully

more concrete, and takes on a specific meaning in the American legal context. I will analyze each

of the above-mentioned terms below.

A. “The United States criminal justice system”

Black’s Law Dictionary, generally considered the legal field’s preeminent source of definitions,

defines the criminal justice system as “[t]he collective institutions through which an accused

offender passes until the accusations have been disposed of or the assessed punishment

concluded. The system typically has three components: law enforcement (police, sheriffs,

marshals), the judicial process (judges, prosecutors, defense lawyers), and corrections (prison

officials, probation officers, and parole officers).”9 This definition obviously encompasses far more

than just the trial setting.

And debaters should be looking at more than the trial; less than 5 percent of criminal cases go to

trial, the vast majority resolve in plea bargains.10

If debaters are looking for where a policy shift

towards truth-seeking and away from attorney-client privilege might impact the life of an average

defendant, the answer is not during a trial. The answer is during the informal wrangling between

attorneys that takes place before a trial ever occurs.

Additionally, the criminal justice system includes an enormous web of mental health and chemical

dependency treatment programs. Many of these services are ordered as a condition of probation,

or are provided while defendants in custody await their hearing dates. In Minnesota, where I am

licensed, the largest provider of mental health services is the Hennepin County jail. This is also

9 “Criminal Justice System”, Black's Law Dictionary (9th ed. 2009).

10 Robert Burns, “The Death of the American Trial” (2009).



true in other states, like Texas, where the largest mental health facility in the state is the Harris

County jail.11

Although I don’t have a nationwide survey in front of me, it would not surprise me

one bit to learn that jails in most major cities (and even statewide) are responsible for the vast

majority of mental health services.

Debaters should consider what attorney-client privilege means in each of these very different

contexts. For example, the impact that attorney-client privilege has on a wealthy embezzlement

suspect, versus a severely mentally ill defendant is likely very different. Many clients already do

not trust their court-appointed attorneys (kindly referred to by some as “public pretenders”) and a

relaxing of the privilege in the interest of truth-seeking may drive an even deeper wedge between

a troubled, distrustful defendant and his or her attorney. It could even drive more defendants to

represent themselves, which will be discussed later on in the case positions section.

In sum, debaters should be careful to isolate which piece of the criminal justice system they are

discussing, and explain why those impacts are substantial. I would argue, if it isn’t already

obvious from the analysis above, that the largest consequences for most Americans will be in the

pre-trial setting. However, I am sure there is a way to limit the round to only discuss trials, if

someone is inclined to do so.

B. “Truth-seeking”

To me, intuitively, this means finding more information about whether the defendant, in actuality,

committed the charged offenses. Additionally, it might mean whether any mitigating factors for

sentencing, like a difficult family background, exist. In the practice of criminal law, this is certainly

what the term means. I am sure those who are more philosophically-inclined will have interesting

things to say about the relativity of truth, what it means to seek one objective truth, etc. I am,

unfortunately, not one of them.

I think there will be a tension here between what practitioners call “truth-seeking” and what

philosophers call “truth-seeking.” There are not (m)any practicing criminal lawyers who show up

to court and cite Wittgenstein. Be prepared to defend your definition on a theoretical level,

otherwise the round could get messy, fast. I think the literature discussing truth-seeking in

isolation will tend to use more theoretical definitions of truth, but the vast, vast majority of the

literature that talks about truth-seeking in the context of attorney-client privilege will use the more

commonly understood (and admittedly uncritical) definition of truth-seeking.

11

Patricia Kilday Hart, “Mental health facility? The county jail.” Houston Chronicle. Nov. 15, 2011. http://www.chron.com/news/kilday-hart/article/Mental-health-facility-The-county-jail-2271150.php



Please note that the term is “truth-seeking,” not “truth.” Negatives do not get to claim that they

“get more truth,” necessarily. They need to first prove that attorney-client privilege is preventing

true facts from seeing the light of day, and then explain how removing the privilege would actually

get those facts into the courtroom (if that is the advantage they want to claim).

C. “Attorney-client privilege”

Unfortunately for us, attorney-client privilege is not as simple as “not telling people bad stuff your

client does.” Courts traditionally define the elements of attorney client privilege as:

(1) When legal advice of any kind is sought

(2) From a professional legal advisor in his or her capacity as such

(3) The communications relating to that purpose

(4) Made in confidence

(5) By the client

(6) Are, at the client’s request, permanently protected from disclosure by the client or by

the legal advisor, unless the protection is waived12

The attorney-client privilege is narrowly tailored to apply in judicial and other proceedings in which

a lawyer “may be called as a witness or otherwise required to produce evidence concerning a

client.”13

Attorney-client privilege does not require the attorney to keep communications

confidential outside of the judicial arena.

i. Privilege vs. other rules of confidentiality

For those of you who know lawyers, have been involved in the legal system, or watch legal

shows, you are probably thinking that an attorney can’t disclose information about his or her

clients in a much broader range of situations. You are correct! However, this is not the result of

attorney-client privilege. Instead, this is the rule of confidentiality established by legal ethics rules

12

See, e.g. In re Richard Roe, Inc., 68 F.3d 38, 39 (2d Cir. 1995). 13

American Bar Association (ABA) Model Rule 1.6, Comment 3.



in each jurisdiction and the American Bar Association (ABA)’s model rules. ABA Model Rule 1.6,

Comment 2 notes that “[a] fundamental principle in the client-lawyer relationship is that, in the

absence of the client’s informed consent, the lawyer must not reveal information relating to the

representation […]”

In short, the attorney-client privilege only protects “the essence of the communications actually

had by the client and lawyer, and only extends to information given for the purpose of obtaining

legal information.”14

The ethical duty of confidentiality, however, applies not only to matters

communicated in confidence by the client to the attorney, but also to all information relating to the

representation regardless of whether it came from the client herself, or from another source.15

The other rule that prevents opposing counsel from discovering all potential information about

their client’s case (or, as some affirmatives might put it, seeking the truth) is called the work-

product doctrine. The work-product doctrine “shelters the mental processes of the attorney,

providing a privileged area within which he can analyze and prepare his client’s case.”16

Without

delving into the nitty-gritty of what constitutes “work product,” the gist of it is that most documents

prepared in anticipation of litigation (civil or criminal) are protected. Otherwise, lawyers wouldn’t

be able to adequately represent their clients.

This means that even if attorney-client privilege does not cover a particular issue, the ethical duty

of confidentiality or the work-product doctrine might. Debaters should be very aware of what each

rule covers, so that they don’t fall into the unfortunate situation of claiming lots of harms from the

loss of attorney-client privilege, only to discover that those communications are also protected by

the ethical rule of confidentiality. This would be a very easy round for the negative to win.

ii. Exceptions to attorney-client privilege

Before I talk about the very, very limited exceptions to attorney-client privilege, let me first talk

about the exceptions to the work-product doctrine and the ethical rule of confidentiality. There are

lots of exceptions to both of them. For example, if the court finds that the work-product is

substantially needed, or that not compelling the document would cause “undue hardship”, the

court can make the attorney produce the document.17

14

Sue Michmerhuizen, Confidentiality, Privilege: A Basic Value in Two Different Applications. Center for Professional Responsibility. May 2007. 15

Id. 16

U.S. v. Nobles, 422 U.S. 225, 238 (1975). 17

Federal Rules of Evidence 26(b)(3).



The exceptions to the confidentiality rule vary from jurisdiction to jurisdiction, but they mostly boil

down to public policy reasons. For example, a lawyer can generally reveal confidential

information that is not covered by the attorney-client privilege to comply with a court order. This is

because the confidentiality rule is an ethical rule, one that is governed from state to state by

ethics boards. The amount of importance the particular state places on truth-seeking vs.

protecting the client-attorney relationship directly impacts their ethics rules.

The attorney-client privilege, on the other hand, is an evidentiary rule. It determines what is and is

not admissible at trial. While the ethical duty of confidentiality is not a basis to resist a court order

(because it is not a rule of evidence, rather it is an ethical rule that lawyers generally should

adhere to), the attorney-client privilege provides a legal basis to resist a court order. If the court

determines that what the lawyer is protecting is not in fact privileged, the lawyer can be held in

contempt. The lawyer can then appeal the decision to a higher court. Because attorney-client

privilege is evidentiary in nature, it provides a much stronger protection for the information it is

trying to protect.

Although the attorney-client privilege is difficult to overcome, it can still be trumped. The easiest

way to obviate the privilege is by having the client waive his or her right to the privilege. This

rarely ever happens, and it seems unlikely that the topic is trying to address a scenario where the

privilege is waived.

The second way it can be overcome is called the “crime-fraud” exception. This can be a

complicated rule (depending on which circuit court decisions you are reading!) but the heart of the

rule is that attorney-client privilege is waived when the client uses his attorney’s services to

perpetrate a fraud.18

The attorney does not need to know about the client’s fraud for the exception

to apply. Debates should not center around the idea that a smart lawyer and an evil client can get

together and plan big awful crimes together. This is not protected by the privilege, and should not

be part of your debate analysis.

II. Case positions

A. The chilling effect

The most common argument for negatives in the literature and I’m assuming in debate rounds,

will be that attorney-client privilege is the only way to guarantee that clients will actually talk to

18

United States v. Zolin, 491 U.S. 554, 562 (1989) (noting that attorney-client privilege should protect advice with regards to prior wrongdoing, but not future wrongdoing.).



their lawyers. Otherwise, people will keep facts from their attorneys, or worse, decide to represent

themselves.

The first decision, to keep facts to one’s self, doesn’t seem intuitively like a huge problem.

Unfortunately, especially at the state trial court level where the vast majority of defendants

interact with the court system, this can be a tremendous problem. Things that are important to

lawyers are not necessarily obviously important to clients. For example, clients often do not want

to share embarrassing or traumatic events in their history. They especially do not want to share

that information if there is a risk that it will be said in open court, on the record. The most classic

example is drug use or a history of abuse in the family. Both of these factors, which can be

considered when departing downwards from a presumptive guideline sentence19

, could reduce

the amount of time someone might spend in jail. If clients don’t feel like they can share that

information with their attorney in the first place, their attorney won’t be able to inform them fully

about their potential value to the court.

There are a whole host of examples that I could list here, but the short of it is that people have no

idea what the courts find important and what they don’t. Lawyers do. They know not only the law,

but also (if they’re good) the judges and the opposing counsel. They know how to get the best

results for their clients, and the only way to do that is by having all of the facts in front of them.

The problem for most debate rounds is going to be to try to quantify how much of a chilling effect

affirming might have. It would be hard to compare the United States to other countries that do not

place nearly the same value on attorney client privilege (for example, the Russian courts do not

tend to protect the lawyer-client privilege like the American courts do) and allege that any

difference in attorney-client communication was the result of a difference in privilege, given the

number of other differences between the two systems. Debaters will have to find a creative way

to make it clear to the judge just how substantial the chilling effect will be.

The second decision, the decision to represent yourself in a criminal proceeding (known as

proceeding pro se) because you do not trust your attorney, is a much more quantifiable problem.

The chilling effect here is not that a defendant will not share with their client, but that the

defendant will refuse to hire or be appointed an attorney at all. One of the primary reasons for pro

19

Judges can either dispositionally depart (aka, sentence a crime as a gross misdemeanor instead of a felony) or durationally depart (give someone fewer months on their sentence than the state-provided guidelines give them). These kinds of departures are common in the state courts, and are very important for clients. Getting a misdemeanor instead of a felony, and spending fewer months in jail are (hopefully obviously) big deals.



se litigation (unless the case involves small amounts of money or is not particularly complicated)

is the client’s fear that their lawyers will not represent them well.20

Pro se litigants pose a unique challenge for the justice system. Because they are unfamiliar with

legal processes, they can take substantially more judicial time and resources to resolve a

problem. The problem has gotten so severe in some courts, like the New York Housing Court,

that some people are suggesting eliminating the specialty court altogether.21

Debaters can easily argue that relaxing the privilege will lead to more pro se litigants, which in

turn will lead to court clogging. There are plenty of backfiles out there about the impact of court

clogging, so I will leave you all to review them from topics past!

B. Protecting the innocent

The flip side of the chilling effect argument, and the other most common argument that I think we

will see on this topic, of course, is that attorney-client privilege does prevent “the truth” from

coming out. Innocent people can, and have sat in jail for long periods of time because of attorney-

client privilege. The question for negatives is how to weigh protecting the innocent against the

public policy value of promoting attorney-client communication.

The first way could be to undermine the idea that attorney-client privilege really protects that

much information. As I noted earlier, it is going to be difficult to quantify what type and how much

information is really protected by the privilege. If the affirmative can frame the round as a small

20

Jona Goldschmidt, The Pro Se Litigant’s Struggle for Access to Justice: Meeting the Challenge of Bench and Bar Resistance, 40 FAM.CT.REV. 36 (2002) 21

Drew Swank, The Pro Se Phenomenon, Vol. 9 BYU J. of Pub. L. 384 (2000) (“Not having representation can negatively affect both the litigant and others. Pro se litigants are regularly perceived in a negative manner; they are “most often attacked for the judicial inefficiencies many judges, attorneys, and observers believe they create. Pro se litigants are more likely to neglect time limits, miss court deadlines, and have problems understanding and applying the procedural and substantive law pertaining to their claim.” Routinely they are described as ‘“pests,’ nuts,’ ‘an increasing problem,’ [and they are blamed for] ‘clogging our judicial system.’” They are thought of as being underprivileged, uneducated, and almost certainly “lack[ing] . . . both the skill and knowledge adequately needed to prepare their defense.” They are believed to be unduly burdensome on judges, clerks, and court processes; many pro se litigants require additional time at the clerk’s office and in the courtroom because they do not understand the procedures or the limitations of the court. Pro se litigants may clutter up cases with rambling, illogical pleadings, motions, and briefs. Lawyers and judges even express concerns that pro se litigants are using their status to gain an unfair advantage over represented parties, who are required to “play by the rules.”)



chilling effect vs. freeing innocent people, they should, under any type of framework, have an

easy time winning the round.

I think negatives that adopt strict utilitarian frameworks will have a difficult time winning, because

there just aren’t that many cases of attorney-client privilege being used to keep people in jail for

extended periods of time (at least that we know of). I think debaters on this side of the argument

will have more success if they privilege innocent lives, or due process rights, above all else.

A final note on attorney-client privilege that is very relevant to folks who are arguing from this

positional standpoint: the privilege lasts even after the lawyer-client relationship has

terminated. It lasts after the client dies. Two lawyers in a very famous case, that I would

imagine serves as inspiration for this topic, knew that a man was in jail for life for a crime their

client committed. Their client had given them authorization to inform the court, after he died, that

he was in fact guilty of the murder. The attorneys kept an affidavit from their client, confessing to

the murder, until their client died. After 26 years in jail, the innocent man was freed. Had their

client not given consent, the attorneys could have lost their licenses for violating the attorney-

client privilege. This is the type of scenario at the heart of the topic.

Best of luck!



Topic Analysis by Adam Torson

I was quite surprised to see this topic selected, and I’ll be interested to see how it turns out. The

literature is pretty dense and the conflict scenarios are not obvious, but when you dig in you’re

sure to find some interesting issues. Hopefully the following will help to smooth the road a bit.

Interpretation

A. United States Criminal Justice System

1. Civil versus Criminal

In the United States legal matters are classified as either civil or criminal. Generally civil law

matters concern transactions between private individuals, for example one person or business

suing another, constructing and disputing legally binding contracts, family laws, wills and trusts,

etc. Most legal matters fall into this category.

Criminal law is concerned with actions that are considered sufficiently harmful that the

government prosecutes and punishes individuals. Even where there is a readily identifiable victim

to a crime, the court proceeding is still the defendant versus the state. The rules for these

proceedings is different than in civil cases in a number of ways, but as a general rule there are

more stringent restrictions placed on the government in order to prevent them from unjustly

persecuting individuals accused of crimes. For instance, in a criminal case a defendant’s guilt has

to be proved beyond a reasonable doubt in order to convict her of the crime, where the standard

is rarely that high in civil law cases.

This distinction is important because the resolution specifies the U.S. criminal justice system.

There is a great deal of literature discussing the contours of the attorney-client privilege in the

context of civil law matters. Advocacies that are broad enough to claim advantages based on civil

law doctrines or cases are likely extra-topical. For example, I expect to see debaters arguing that

certain regulatory monitoring of business practices is strengthened by weakening the attorney-

client privilege; because these are likely civil regulations, the position is unlikely to fall within the

scope of the topic.

2. State versus Federal



In the United States there are two legal systems that operate side by side: the federal criminal

justice system and the justice systems of each of the 50 states. The attorney-client privilege

applies to both, but you will need to be mindful of the distinction in determining the advocacy of

your AC. Probable variations will include debaters advocating that the Federal government

change the rules that apply in federal court proceedings, changes to the state codes of a

particular state or all fifty states, or courts interpreting Constitutional provisions or federal laws in

ways that strengthen or weaken the privilege.

When talking about the particularities of a relationship between an attorney and her clients these

distinctions might not be overly important because the privilege doesn’t vary all that much

between these settings, but those wanting to claim higher magnitude utilitarian impacts will need

to be particularly mindful about how exactly they are implementing their advocacies.

B. Attorney-Client Privilege

1. Definition and Exceptions

The attorney-client privilege is a very simple idea on the surface, but it quickly gets very

complicated. In general, it means that an attorney is not allowed to disclose private information

relating to her clients. There are a few important exceptions to this rule.

First, communications in furtherance of a future crime or fraud are not protected by the privilege.

If Client says to Attorney, “Tomorrow I’m going to kill Jack Johnson,” the attorney may reveal that

information to police to stop the crime. In fact, in many cases disclosing such information is

mandatory. An important implication of this rule is that an attorney may not give advice about how

his client may successfully break the law in the future – such communications are not a protected

part of the attorney-client relationship. In such cases, the attorney is essentially a co-conspirator

to a criminal or fraudulent act.

Second, a communication is not privileged if it is disclosed to a third party not protected by the

privilege. For example, if I tell my attorney information I wish to keep private, but do so on a

crowded elevator, that information is not protected by the attorney-client privilege. The basic idea

behind this exception is that it doesn’t make sense for attorneys to hide what is more or less

public anyway. The client apparently did not care that the information should remain secret

because she disclosed it to other individuals or the public at large.

2. Purpose and Applications



The attorney-client privilege is designed to ensure that individuals have meaningful access to

good legal advice. The law is complicated, and those who cannot be honest with their attorneys

are likely to withhold information they consider irrelevant or incriminating, which in turn means

that they do not get the best legal advice. The 6th amendment guarantees that everyone has the

right to an attorney to advocate on her behalf in the legal system, and the attorney-client privilege

is an important part of effectuating that Constitutional value.

The attorney-client privilege has several important applications.

First, it is a rule of professional responsibility. In order to acquire and maintain a license to

practice law, ever state requires that attorneys adhere to certain ethical guidelines. One of the

most important is maintaining trust with clients by not disclosing confidential information.

Attorneys are often in a position to hurt their clients’ interests or simply embarrass them. If they

did that regularly, confidence in the legal system would be undermined and people would not

seek out competent legal advice. So, every state and federal bar association requires maintaining

the attorney-client privilege as a rule of professional responsibility.

Second, the attorney-client privilege is an important rule of discovery. Discovery is the phase of a

trial where both parties gather as much information about the case as they can, using various

tools like subpoenas and requests for documents. As a general rule, courts allow the parties to a

case to “discover” lots of different kinds of information, but they do not allow discovery of

privileged communications between a client and her attorney. Again, if attorneys could be forced

to tell the other side what their clients have told them, then people would not be honest with their

attorneys.

Third, the attorney-client privilege is a rule of evidence. All courts have rules about the types of

information that can be presented to the judge or jury and considered in making a final decision.

Some of the rules exclude evidence that is likely inaccurate, like dubious scientific testimony.

Some of the rules are simply for public policy reasons. For example, suppose I hit my head on a

low hanging chandelier in a fancy restaurant and suffer a concussion. I might sue the restaurant

for negligently hanging the chandelier too low. When we go to court, I would not be allowed to

submit as evidence the fact that the restaurant subsequently hanged the chandelier higher to

avoid similar incidents. If that could be admitted as evidence, the restaurant would have an

incentive not to fix the problem and more people could get hurt. So, as a matter of public policy,

courts say that this type of evidence is not admissible.



All of these applications are potentially relevant to the topic. Keep in mind what you mean when

you advocate changing the attorney-client privilege. Do you mean changing the rule of

professional responsibility, the rule of discovery, the rule of evidence, or all three?

C. Legislature versus Courts

There are two major ways to effect a change in the rules about attorney-client privilege: have

state or federal legislatures do it, or have courts do it. For legislatures to change the attorney-

client privilege rules is pretty straight-forward; just make sure not to run afoul of Constitutional

rules without considering the implications of that for your position. If, on the other hand, you want

to change a court precedent on attorney-client privilege, there are a few things you should

consider.

1. Test Case Fiat

When you advocate that a court should rule a certain way on a given issue (or may overturn a

previous decision), you have to imagine that the court is presented with a case that raises that

issue. Test cases on obscure issues like attorney-client privilege don’t come up that often, so the

assumption that one will happen is a bit of a sticky wicket. You are presented with two less than

ideal alternatives.

On option is to fiat that the case will happen right now. That is a bit implausible and probably

requires some form of more or less problematic fiat abuse – e.g. fiating the actions of a private

actor, of multiple actors, etc. Alternatively, you can exercise future fiat – the court will rule a

certain way whenever it happens to be presented with a case. Future fiat is probably even more

abusive – negatives can’t generate meaningful arguments about the implications of something

that might happen far in the future (then again neither can you). I think the former is the better

option for these cases.

2. Grounds Fiat

Whether a court makes a good decision is often determined by the basis for that decision. In

deference to democratic processes, Courts are only supposed to interpret the law rather than

make up their own. For that reason it is often (though not always) inappropriate for a court to



consider the practical consequences of their holdings. If the legislature passed an unwise law, it

is their job to fix it, not the Court’s.22

When we fiat legislative action, we generally don’t fiat the reasoning behind the action. If you

could fiat what mindset legislators could adopt, why not simply fiat that they no longer hold racist

or sexist views, for example. But when you fiat a court case, it seems to make more sense to fiat

the justification for the decision. This will be the basis for substantive disadvantages.

Nevertheless, be prepared for a theory debate over this issue.

Affirmative Positions

I admit to having some difficulty formulating affirmative positions on this topic, so I hope you will

forgive that the following suggestions are unusually exploratory and tentative.

A. Retributive Justice

I think one of the foundational instincts behind skepticism of the attorney-client privilege is the

idea that people should not get away with crimes because of a technicality. If an attorney, who is

an officer of the court, knows that you’re guilty, then you should suffer punishment for your crime.

I’m not sure that you’ll find a lot of contemporary authors who argue that our system is

insufficiently punitive or that too many people get less than what they deserve. Nevertheless, high

profile cases of apparently guilty people going free because of some procedural error in police

investigations or something like that do strike us as unjust.

I’m not sure that attorney-client privilege can be painted as part of this instinct, but I have no

doubt that people will try. The accused should not get to hide behind their attorneys, and not

benefit from legal advice aimed at circumventing the just punishment they deserve.

B. Collateral Damage

There are a number of cases arising from the idea that client confidences might prevent attorneys

from saving third-parties from harm. For example, Attorney defends Client A and convinces a jury

to acquit him even through Attorney knows he is guilty. Client B does not have so skilled a lawyer

and is wrongfully convicted of the same crime. Attorney is now in a position to intervene to

22

There are notable exceptions to this general principle. For example, in Brown v. The Board of Education of Topeka, KS, the Supreme Court found that the practical effect of school segregation was very detrimental to students of color and so determined that the practice violated the Equal Protection Clause of the Constitution.



prevent Client B from being wrongfully punished, but revealing that Client A committed the crime

would violate the attorney-client privilege. Some Affs will argue that the privilege should be

relaxed in cases where disclosure is necessary to protect other people.

It may be the case that the example the above is already covered by certain exceptions to the

attorney-client privilege. For example, in many versions of the privilege it is waived when

necessary to avoid serious harm coming to another. Nevertheless, some will say either that this

exception should be broadened or, if it already exists, that it should persist.

C. Status Quo Exceptions

Many in LD believe that the affirmative can defend the status quo. I don’t think that’s a particularly

good way to debate, but let’s not let that stop us. Some will argue that the exceptions to the

attorney-client privilege are sufficient to tip the balance of the status quo in favor of truth-seeking.

In other words, when we really need to get at the truth we don’t let the privilege stand in the way.

For these debaters all they need to do is argue for the continued existence of exceptions like the

crime/fraud rule and hope the negative takes the bait to defend an absolute privilege for attorney-

client communications. The latter is not indefensible, but it’s certainly counter-intuitive.

D. Victim’s Rights

Another manifestation of the anti-crime sentiment popular among a certain class of political

sensibilities is the constant appeal to the rights of victims. These arguments suppose that

because victims have suffered a significant harm as a result of crime, the state should focus its

energies on rectifying this injustice as much as possible rather than focusing its energies on

vindicating the constitutional rights of the criminal. If an attorney knows, for example, where a

murder victim’s body is buried, it is more important to reveal that information in order to comfort

the family than to withhold it simply to protect the freedom of a murderer.

Don’t be confused into thinking that victims of crimes have many formal rights in a criminal

hearing, because for the most part they do not. The parties to a criminal prosecution are the State

and the defendant; the victim’s role is mostly to give testimony on what happened. Nevertheless,

the term “victims’ rights” is shorthand for this idea that it’s important to focus on the wellbeing of

victims in deciding criminal justice policy, and this may dictate that they not receive such

steadfast devotion from their attorneys.

Negative Positions



The rights of the accused are designed primarily to prevent the government from abusing its

power by wrongfully (or even maliciously) prosecuting innocent people. Because the average

citizen cannot reasonably be expected to understand the intricate contours of the criminal justice

system, or because she may lack the necessary skills to speak effectively in her own defense, the

Constitution guarantees the right to the assistance of counsel in criminal prosecutions. Someone

with expertise and training will argue on your behalf should the government decide to investigate

or accuse you of a crime.

The attorney-client privilege is essential to maintaining this right. When clients don’t know what

information can incriminate them, they are unlikely to make full disclosures to their attorneys and

seek out sound legal advice. It would be impossible for the average citizen to assess what

information might exculpate him or mitigate his guilt, or indeed what information might be

damning. This insight has driven, for example, the requirement that states provide indigent

defendants with public defenders. If we believe that people should have the right to meaningful

assistance in the legal system, it seems as though attorney-client privilege is a must.

Moreover, the criminal process is also supposed to serve as a check on overzealous police

investigations and prosecutions. Without full disclosure of the relevant facts, criminal defense

attorneys cannot fulfill the important role of critically assessing police tactics and excluding

evidence acquired through impermissible means.

Finally, the vast majority of cases in the criminal justice system are disposed of through a plea

bargaining process. Perhaps the most important part of a defense attorney’s job is understanding

which agreements fall into the appropriate range of punishment and which do not. Again, a full

sense of the factual details is critical. If an attorney does not know the details of the crime, he

cannot recommend to the client what is a favorable plea bargain and what is not. This seems

unfair and likely to produce unacceptable variation in the severity of punishments for people

committing similar crimes.

Conclusion

Dive into the literature, it will take you a while to get a hang of the lingo. Look up stuff you don’t

understand, and you might find some interesting jumping off points!



AFFIRMATIVE EVIDENCE

TRUTH-SEEKING

ATTORNEY-CLIENT PRIVILEGE COMES AT A COST TO TRUTH-SEEKING. Grace M. Giesel, [James R. Merritt Professor and Distinguished University Teaching Professor, University of Louisville, Louis D. Brandeis School of Law.] "End the Experiment: The Attorney-Client Privilege Should Not Protect Communications in the Allied Lawyer Setting". Marquette Law Review, Vol. 95, 2011-2012. The attorney–client privilege does not create benefit without cost. The cost of the privilege is the potential that applying the privilege in a particular situation will keep relevant evidence from the truth-finder.100 As Professor Wigmore stated, “[T]he privilege remains an exception to the general duty to disclose. Its benefits are all indirect and speculative; its obstruction is plain and concrete. . . . It is worth preserving for the sake of a general policy, but it is nonetheless an obstacle to the investigation of the truth.”101 This cost is minimized by the fact that the privilege places communications between client and lawyer beyond the reach of compelled disclosure but does not protect the facts underlying the communications.102 Also, it is possible that no communication would exist without the privilege so there would be no communication kept from the truth-finder.103 The courts’ acceptance of the absolute protection of the privilege along with codification by some jurisdictions104 indicates a collective conclusion that the privilege not only creates benefits but the benefits also exceed any cost of its application.105 Yet, in applying the privilege in individual cases, courts continue to concern themselves with the damage to the truth-finding mission of the judicial system. Courts often repeat a refrain that the privilege must be “strictly confined within the narrowest possible limits consistent with the logic of its principle.”106 Any desire to apply the privilege narrowly always must be considered in light of the counterweight of the general acceptance of the privilege. The United States District Court for the District of New Jersey recently addressed this tension in Louisiana Municipal Police Employees Retirement System v. Sealed Air Corp.: 107 While it is true that the attorney–client privilege is narrowly construed because it “obstructs the truth-finding process,” the privilege is not “disfavored.” Courts should be cautious in their application of the privilege mindful that “it protects only those disclosures necessary to obtain informed legal advice which might not have been made absent the privilege.” In all instances, the facts underlying any given communication remain discoverable.108



THE TRADEOFF BETWEEN ACP AND TRUTH IS INEVITABLE.

Steven Bradford, [Assistant Professor of Law, University of Nebraska College of Law], "Conflict of Laws and the Attorney-Client Privilege: A Territorial Solution", University of Pittsburgh Law Review 52 (1990-1991). The attorney-client privilege thus represents a tradeoff between effective legal representation and full disclosure of all pertinent facts.34 The privilege limits the available relevant evidence, seriously impeding the search for truth, 5 but it does so in pursuit of what is perceived to be a higher value. "The proposition is that the detriment to justice from a power to shut off inquiry into pertinent facts in court will be outweighed by the benefits to justice . . . from a franker disclosure in the lawyer's office."36 The assumption that one outweighs the other is essentially unverifiable.37



ACP COMES AT A HUGE TRADEOFF TO FACTS ESSENTIAL TO POLICY.

Lee A. Freeman Jr., [member of the Illinois Bar and a member of the Chicago firm of Freeman, Freeman & Salzman], "The Attorney-Corporate Client Privilege: An Obstacle to the Pursuit of Truth", Litigation, Vol. 2, No. 3 (Spring 1976). The so-called attorney-corporate client privilege can present a formidable barrier to obtaining essential facts through discovery. Particularly when a corporate defen? dant invokes that privilege to block access to statements made by employees to corporate counsel contempora? neous with an event in question, the privilege can deprive the opposing party of the most credible evidence that is potentially available. Imposing such an obstacle on the discovery of essential information cannot be justified by the policy considerations that normally protect attorney-client communication from disclosure.



FULL DISCLOSURE OF FACTS WOULD BE BETTER FOR RULE OF LAW.

Lee A. Freeman Jr., [member of the Illinois Bar and a member of the Chicago firm of Freeman, Freeman & Salzman], "The Attorney-Corporate Client Privilege: An Obstacle to the Pursuit of Truth", Litigation, Vol. 2, No. 3 (Spring 1976). Champions of the privilege concede that it may be used to suppress the truth, but they argue that justice in the adversary process must be sacrificed to perpetuate an atmosphere of secrecy, reminiscent of a medieval guild, which is supposedly necessary for attorneys to persuade their corporate clients to obey the law. This contention runs counter to the entire philosophy of the increasingly more liberal pretrial discovery rules. The outcome of a case should not be changed by interposing attorneys between the injured parties and their access to the facts. Full disclosure of facts and the consequent enforce? ment of the law where violations are established would seem a better way to deter further illegal acts and thus achieve greater compliance with the law. Given events of the past few years, it cannot be seriously contended that any area of corporate behavior should be reserved for private law enforcement by attorneys.



ACP LEADS TO THE SUPPRESSION OF INFORMATION.

Elizabeth G. Thornburg, [Associate Professor of Law, Southern Methodist University], "Sanctifying Secrecy: The Mythology of the Corporate Attorney-Client Privilege", Notre Dame Law Review, Vol. 69, 1993. One common result of the corporate attorney-client privilege is the suppression of relevant information. While in theory the privilege protects onlyt he communication and not the underlying information, in practice the privilege may prevent a litigation opponent from discovering the information. This could be true for a number of reasons. First, the person seeking discovery may be unaware of the existence of the information embodied in the privileged communication and therefore may not ask for it. Second, a discovering party may fail to learn information due to evasive conduct coupled with a privilege claim. For example, when a corporation uses the attorney-client privilege to protect information in one form, and then evades attempts to discover the information in non-privileged form, the result easily may be that the information will never be discovered. Such evasive conduct is common. Sixty-one percent of the attorneys surveyed by the American Bar Foundation complained about evasive tactics. One of the attorneys surveyed admitted that "[t]he purpose of discover...is to give as little as possible so [your opponents] will have to come back and back and maybe will go away or give up." A discovering party, failing to ask exactly the right question, in exactly the right words to force a revelation of the information, may never gain access to the relevant information. The problem is much more serious when the party claiming privilege and evading discovery is a corporation. "Unlike individuals (who will find it extremely difficult to shield information from discovery by speaking to an attorney), a corporation can structure even its routine transactions so that information is not rendered in any discoverable form until it is transmitted to the corporation's attorney." The discovery difficulties stem from a combination of the diffusion of corporate knowledge and the problem of identifying "client representatives" in the corporate setting. A few examples may serve to illustrate the problem.



ATTORNEY-CLIENT PRIVILEGE PERVERTS THE ROLE OF LAWYERS FROM ADVOCATES

TO SECRET-KEEPERS

Simon, William, "The Confidentiality Fetish: The problem with attorney-client privilege", The Atlantic Monthly, (December 1, 2001) pp. 113 Lawyers, in short, have carved out a role for themselves as the privileged keepers of much information that is important to the public interest. Historically, lawyers have liked to think of themselves as defenders of individual liberty against an overbearing state, primarily through traditional advocacy—that is, persuasively asserting a client’s rights. Today, however, lawyers typical efforts to mediate between clients and the state rely less on advocacy and more on information control. This is a disturbing development; lawyers have brought to their new role as information guardians a powerful predisposition towards needless secrecy that suppresses and distorts information about many matters of public importance.



PROFESSIONAL RESPONSIBILITY

CONFIDENTIALITY FROM ATTORNEY-CLIENT PRIVILEGE UNFAIRLY ADVANTAGES

LAWYERS OVER OTHER SIMILAR PROFESSIONALS Simon, William, "The Confidentiality Fetish: The problem with attorney-client privilege", The Atlantic Monthly, (December 1, 2001) pp. 114 The bar's commitment to confidentiality is not just an ideology; it is also a marketing strategy. In the bar's competition with other professions, confidentiality is often a more important advantage than legal expertise. Many accountants can give better advice than most lawyers about what belongs on a tax return; and one needs an engineer to draft some reports that are required by environmental laws. But lawyers can give clients something that other professionals, with the exception of doctors and priests, cannot: strong confidentiality rights. Although the legal system routinely requires accountants, bankers, and business consultants to disclose ostensibly private communications with their clients, attorney-client privilege protects most communication between lawyers and their clients from involuntary revelation.



CONFIDENTIALITY FROM ATTORNEY-CLIENT PRIVILEGE COULD ENABLE

CORPORATIONS TO HARM OR EXPLOIT SOCIETY THROUGH INVOLVING THEIR

ATTORNEYS IN POTENTIALLY PROBLEMATIC SITUATIONS

Simon, William, "The Confidentiality Fetish: The problem with attorney-client privilege", The Atlantic Monthly, (December 1, 2001) pp. 114 Tobacco-company lawyers further tested the limits of confidentiality when they persuaded their clients to give them responsibility for much of the companies' research on the health effects of smoking. The lawyers reasoned that since health effects were central to many product-liability suits against the companies, the research facilitated legal advice, and hence should be privileged. If the results looked good, the studies were shifted away from the lawyers and made public. If they looked bad, the lawyers invoked privilege. Some courts rejected this strategy as an abuse of privilege, but it is hard to distinguish from the more routine practice, encouraged by Upjohn, of using lawyers to investigate allegations of wrongdoing.



IN MOST PROFESSIONAL SETTINGS CONFIDENTIAL COMMUNICATION YIELDS TO

STRONGER PUBLIC OR THIRD PARTY INTERESTS

Simon, William, "The Confidentiality Fetish: The problem with attorney-client privilege", The Atlantic Monthly, (December 1, 2001) pp. 114 Of course, most business and professional relations involve confidentiality. In most dealings, however, the law requires that confidentiality yield to stronger public or third-party interests. Yet the bar often insists that attorney-client confidentiality be preserved at the expense of even the weightiest competing interests. Suppose—to take a case studied in law-school ethics classes—that a now deceased client once confessed to his lawyer that he had committed a crime of which someone else has just been convicted. May the lawyer disclose the confession in order to save the wrongfully convicted person? The stakes for the convicted person are enormous; the stakes for the deceased client are nil. Nevertheless, the Arizona Supreme Court once held in a similar case that disclosure is prohibited. The American Bar Association recently revised its position on confidentiality to permit disclosure in situations like this; but most jurisdictions still follow the rule applied in the Arizona case.



TECHNICALITIES

ATTORNEY-CLIENT PRIVILEGE BETTER ENABLES CLIENTS TO EXPLOIT

SHORTCOMINGS IN THE LAW TO THEIR PERSONAL ADVANTAGE AND TO THE

DETRIMENT OF SOCIETY Simon, William, "The Confidentiality Fetish: The problem with attorney-client privilege", The Atlantic Monthly, (December 1, 2001) pp. 115 It seems unlikely, however, that the kind of advice clients seek only when assured of confidentiality has socially desirable effects. One problem with the claim that legal advice promotes compliance with the law is ambiguity in the meaning of "compliance." Some legal advice is designed to help clients get around a law by casting their affairs in a way that technically conforms to it but defeats its purposes. Many lawyers insist that they have a duty to exploit loopholes in the interests of their clients whenever possible. Vinson & Elkins, a firm that helped Enron craft bizarre business structures for the sole purpose of giving an unrealistically favorable appearance to the company's financial statements, has responded to criticism by saying that as long as what the client wanted could be accomplished within the law, the law firm was not responsible for any bad consequences. Society may be obliged to permit lawful though obnoxious conduct (although many people dispute that this was even lawful), but it is not obliged to encourage it with the shield of confidentiality. If limiting confidentiality reduces Enron-style "compliance," so much the better.



INQUISITORIAL VERSUS ADVERSARIAL JUSTICE SYSTEMS

INQUISITORIAL AND ADVERSARIAL CRIMINAL JUSTICE SYSTEMS ARE NOT AS

DISTINCT AS THEY ONCE WERE Geraldine Szott Moohr [Professor of Law, University of Houston Law Center], “Prosecutorial Power In An Adversarial System: Lessons From Current White Collar Cases,” Buffalo Criminal Law Review 8.1 (2004): 165-220. One necessarily proceeds with caution when embarking on such a comparison.94 Modern adversarial and inquisitorial systems are not as distinct as they once were.95 The inquisitorial system has adopted properties of the adversarial mode, notably by guaranteeing defendants’ rights that are similar to those guaranteed by the United States’ Constitution.96 A second complexity is that there is no single, uniform inquisitorial model; the approach of individual countries to similar circumstances and problems inevitably varies. A third problem is that, as with an adversarial system, actual practices within a system are likely to deviate from the formal model.97 Mindful of these problems, I measure the federal system as applied in white collar cases against the French model, which is most similar to a pure inquisitorial system.98



THE MAIN DIFFERENCE BETWEEN THE INQUISITORIAL AND ADVERSARIAL SYSTEM IS

THAT THE LATTER IS DESIGNED TO SEEK THE TRUTH WHERE THE LATTER IS

DESIGNED TO RESOLVE THE DISPUTE PRESENTED BY THE PARTIES

Felicity Nagorcka, Michael Stanton, and Michael Wilson, “STRANDED BETWEEN PARTISANSHIP AND THE TRUTH? A COMPARATIVE ANALYSIS OF LEGAL ETHICS IN THE ADVERSARIAL AND INQUISITORIAL SYSTEMS OF JUSTICE,” 29 Melb. U. L. Rev. 448 )2005) It is often observed that the inquisitorial system has differing ethical standards and even a different telos to the adversarial system. 14 J A Jolowicz identifies two ideas as central to the adversarial system: First, that it is for the parties to define the subject matter of their dispute, ie, the substance of the action. Secondly, that it is for them and for them alone to determine the information on which the judge may base his decision.' 5 Jolowicz contrasts this position with the French experience, whereby the judge decides what are the relevant facts to be proved, examines the witnesses, and organises fact-finding procedures of his or her own accord. 16 Jolowicz notes that this is conducted against the background of art 10 of the French Code Civil, whereby '[e]veryone is bound to co-operate with the administration of justice with a view to revelation of the truth'. 17 In advocating that the common law should adopt aspects of the inquisitorial system, particularly in relation to case management and the obligation to reveal the truth, Jolowicz contrasts the underlying principles of the French Code Civil with the statement of Lord Denning MR in Air Canada v Secretary of State for Trade [No 2]: 'when we speak of the due administration of justice this does not always mean ascertaining the truth of what happened." 8 Sir Anthony Mason has observed that: The principal reason why the European system has attractions for some critics of the adversarial system is that control lies more in the hands of the judges and because the European courts are said to have as their object the investigation of the truth. Within the adversarial system, despite some statements to the contrary, the function of the courts is not to pursue the truth but to decide on the cases presented by the parties.19



THE INQUISITORIAL MODEL OF CRIMINAL JUSTICE PLACES THE FOCUS ON THE

INVESTIGATION RATHER THAN THE TRIAL, AND THE PRIMARY ACTORS ARE STATE

AGENTS

Geraldine Szott Moohr [Professor of Law, University of Houston Law Center], “Prosecutorial Power In An Adversarial System: Lessons From Current White Collar Cases,” Buffalo Criminal Law Review 8.1 (2004): 165-220. In contrast, continental countries adopted an investigatory approach to criminal matters in which governments utilized the state’s power to carry out an inquiry.101 The premise of the inquisitorial system is that it is possible to reconstruct and understand a crime, a historical event, by means of thorough investigation.102 Accordingly, the inquisitorial process centered on the tasks of assembling and screening facts. As its name implies, the investigation is the centerpiece of the inquisitorial process. The ultimate issue of guilt or innocence is determined through an official inquiry that is initiated and conducted by the state. In this system, the trial is most accurately characterized as a continuation of the official investigation. The investigation, rather than the trial, is paramount. The two systems also differ in the roles played by the state. In the adversarial system, although both prosecutor and judge are officials of the state and the state provides the forum, the government role was traditionally constrained by the equality accorded the parties,103 by the jury trial, and, later, by defendant’s constitutional rights. In the inquisitorial system, state actors traditionally dominated the proceedings, conducting the investigation and managing trial and sentencing.



THE ADVERSARIAL SYSTEM DOES NOT ENGAGE IN MEANINGFUL TRUTH-SEEKING

Felicity Nagorcka, Michael Stanton, and Michael Wilson, “STRANDED BETWEEN PARTISANSHIP AND THE TRUTH? A COMPARATIVE ANALYSIS OF LEGAL ETHICS IN THE ADVERSARIAL AND INQUISITORIAL SYSTEMS OF JUSTICE,” 29 Melb. U. L. Rev. 448 )2005) A proponent of the adversarial system might suggest that it promotes the search for truth by means of the thorough testing of evidence by a partisan examiner. For example, John Wigmore argued that cross-examination is 'the greatest legal engine ever invented for the discovery of truth'. 25 However, noting the inequality of resources and the variable quality of representation in the adversarial system, Luban responds to this position by contending that:

the adversarial system bears scant resemblance to this idealised, critical- rationalist, picture of scientific inquiry. Science doesn't, or at least shouldn't try to exclude probative evidence, discredit opposing testimony known to be truthful, fight efforts at discovery, use procedural devices to delay trial in hopes that opponents will run out of money or witnesses die or disappear, exploit the incompetence of opposing counsel, shield material facts from a tribunal based on privilege, or indulge in sophistry and rhetorical manipulation. 26



ALLIED LAWYER SITUATIONS

ATTORNEY-CLIENT PRIVILEGE SHOULD NOT EXTEND TO ALLIED LAWYER SITUATIONS. Grace M. Giesel, [James R. Merritt Professor and Distinguished University Teaching Professor, University of Louisville, Louis D. Brandeis School of Law.] "End the Experiment: The Attorney-Client Privilege Should Not Protect Communications in the Allied Lawyer Setting". Marquette Law Review, Vol. 95, 2011-2012. In contrast, the disclosure-encouragement rationale does not justify applying the privilege to communications in the allied lawyer situation because any such privileged communication is not a communication between an attorney and that attorney’s client. Applying the privilege in the allied lawyer context does not encourage frank attorney–client communications that can improve legal representation, which is the heart of the privilege’s purpose.22 Other proposed justifying rationales—such as increased efficiency of representation, increased efficiency of the judicial system, or increased effectiveness of representation—cannot survive cost–benefit analysis. Any efficiency benefit to representation or to the judicial system as a whole is doubtful.23 Likewise, it is not at all clear that applying the attorney–client privilege in the allied lawyer context improves the effectiveness of the representation rendered.24 Even if applying the privilege creates a benefit, the cost of creating that benefit—by limiting the information reaching the truth-finder and, therefore, handicapping the truth-finding process of the judicial system—outweighs any benefit created.



CHAHOON V. COMMONWEALTH PROVES THE ALLIED LAWYER SITUATION SHOULD

NOT ALLOW FOR ATTORNEY-CLIENT PRIVILEGE.

Grace M. Giesel, [James R. Merritt Professor and Distinguished University Teaching Professor, University of Louisville, Louis D. Brandeis School of Law.] "End the Experiment: The Attorney-Client Privilege Should Not Protect Communications in the Allied Lawyer Setting". Marquette Law Review, Vol. 95, 2011-2012. The case credited as the first to apply the attorney–client privilege in the allied lawyer setting, the 1871 Virginia Supreme Court case of Chahoon v. Commonwealth, 25 reached its conclusion by analogizing the allied lawyer situation to the joint client situation.26 The court decided that the allied lawyer situation was basically the same as the joint client situation and should be treated the same for purposes of attorney–client privilege.27 This conclusion was in error. The joint client situation differs fundamentally from the allied lawyer situation in the nature of the relationship between the attorneys and the clients. That difference is central to the appropriateness of application of the attorney–client privilege. In a joint client representation, the privilege applies to communications within an attorney–client relationship, as the attorney– client privilege does in all other settings. In an allied lawyer situation, the communications are not within an attorney–client relationship. In an allied lawyer setting, contrary to the conclusion of the Chahoon court, a lawyer does not represent other parties who have agreed to work with the lawyer’s client simply by virtue of an agreement between the parties to work together. The lawyer does not have an attorney– client relationship with those other parties; those parties have their own separate counsel. Therefore, when a court applies the attorney–client privilege to communications in the allied lawyer setting, the privilege protects communications that are not solely between an attorney and the attorney’s client. As some courts have applied the privilege, the privileged communication may not even involve a lawyer at all.28 The fact that the communication in the allied lawyer setting is not between an attorney and his or her client is a huge and fundamental difference between applying the privilege in the joint client setting and applying the privilege in the allied lawyer setting.



BALANCING TEST

THE SUPREME COURT HAS LEGITIMIZED A BALANCING TEST TO CHECK THE ACP. Dennis M. Gonski, [Partner at Dollinger Gonski & Grossman in Fairfield and in Carle Place, NY], "The Lawyer-Client Privilege is Not Absolute", New Jersey Law Journal, August 16, 2010. In 1979, the Supreme Court, In re Kozlov, 79 N.J. at 243-44, offered a three-part test for “balancing” the competing interests of lawyer-client confidentiality, with the societal need to discover information which “but for” the privilege would be available to mete out justice. To perforate the privilege, three things must appear: (1)There must be a legitimate need to reach the evidence sought to be shielded; (2)there must be a showing of relevance and materiality of that evidence; and (3) it must be shown by a fair preponderance of the evidence, including all reasonable inferences, that the information cannot be secured from any less intrusive source. This “balancing” test is said to promote the use of the privilege as a “shield,” and not as a “sword.” This test has been applied to the disclosure of a client’s address.474747



CLIENT FRAUD EXCEPTION

CLIENT FRAUD SHOULD BE AN EXCEPTION TO THE ACP. Roger C. Cramton, [Robert S. Stevans Professor of Law, Cornell Law School], "Proposed Legislation Concerning a Lawyer's Duty of Confidentiality", Pepperdine Law Review, Volume 22, Issue 4. Prospective or Ongoing Client Fraud A lawyer, retained by a client to assist in arranging and documenting a transaction with a third person, learns that the client has used or is using the lawyer's service to perpetrate a fraud on the third person. All states except California have professional rules dealing with client fraud: (a) Prevention of criminal fraud by a client: forty-one states require or permit the lawyer to disclose; nine jurisdictions do not.' (b) Rectification of client fraud in which the lawyer's services have been used: seventeen states require or permit the lawyer to disclose." Yet, the California State Bar has opposed any professional rule that would permit or require disclosure or rectification of prospective or ongoing client fraud.' There is currently no such rule, and reliable authorities state that California law does not permit any disclosure.' This bill permits a lawyer to disclose confidential information to prevent the client from committing a fraud, or to rectify the consequences of a client's criminal or fraudulent act in the commission of which the client used the lawyer's services. This proposed bill will discourage clients from using lawyers to commit fraud.



FRAUD IS ALWAYS AN EXCEPTION TO PRIVILEGE.

Dennis M. Gonski, [Partner at Dollinger Gonski & Grossman in Fairfield and in Carle Place, NY], "The Lawyer-Client Privilege is Not Absolute", New Jersey Law Journal, August 16, 2010. Fraud always trumps the lawyer-client privilege. The privilege evaporates as soon as it becomes apparent that its enforcement will promote the commission of a crime or fraud. Evid.R. 504(2) expressly provides exceptions: “Such privilege shall not extend (a) to a communication in the course of legal service sought or obtained in aid of the commission of a crime or a fraud…” Notably, a distinction exists between “fraud” and “crime.” A “criminal” act is narrowly defined by statute. “Fraud,” however, may be either “actual” or “equitable.” New Jersey courts have given the term “fraud” an expansive meaning. Acts constituting “fraud” may be as broad and varied as the human mind can invent. As a result, the lawyer-client privilege will not prevent discovery of client information (even a confidential address) if to do so would “mock justice” or constitute a fraud upon the court. The notion that “fraud” trumps the privilege was most notably paraphrased by Justice Cardozo: “[t]here is a privilege protecting communications between attorney and client. The privilege takes flight if the relation is abused.” Clark v. United States, 289 U.S. 1 (1933). An ethics issue Protection of client information also falls within the “Rules of Professional Conduct.” Here too, a “relating to representation” test is applied to determine “confidentiality.” And, here too, there are exceptions: “(a) A lawyer shall not reveal information relating to representation of a client unless the client consents…except as stated in paragraphs (b), (c), and (d).” RPC 1.6(a) states the general rule that shields information “relating to” the representation of a client. The subparagraphs (b), (c) and (d) override the shield when the enforcement of the privilege would facilitate substantial financial harm to another or would constitute a criminal, illegal or fraudulent act upon a tribunal.



THE SARBANES-OXLEY ACT EXPANDED THE CONDITIONS UNDER WHICH A LAWYER

CAN DISCLOSE CLIENT CONFIDENCES TO PREVENT A CRIME OR FRAUD

Martin D. Carrigan and Theodore C. Alex, “The Sarbanes-Oxley Act Of 2002 And Its Impact On The Attorney-Client Privilege And Legal Ethics,” Journal of Business & Economics Research, Vol. 1, No. 12 (2011) The Sarbanes-Oxley Act was cited by the ABA as the primary reason for its August 2003 change in the ethical obligations of attorneys advising public companies.28 The ABA conference report notes that the Act will enhance communication both with in-house counsel and outside counsel. It will enhance the contribution of board members to public corporations, and The new rule permits disclosure of an attorney where information would “prevent” a client from committing a crime, or fraud, which is “reasonably certain” to result in “substantial injury to the financial or property interests” of another. The new rule, therefore, allows a lawyer to inform about potential, as well as existing and past client actions, if they have the potential to substantially harm another’s financial interest. There is no limitation on “another” or a clear definition of what injury is a “substantial” injury.



DEATH/BODILY INJURY EXCEPTION

DEATH OR SUBSTANTIAL BODILY INJURY SHOULD BE AN EXCEPTION TO THE ACP. Roger C. Cramton, [Robert S. Stevans Professor of Law, Cornell Law School], "Proposed Legislation Concerning a Lawyer's Duty of Confidentiality", Pepperdine Law Review, Volume 22, Issue 4. Threatened Death or Substantial Bodily Irury A lawyer learns from a client that the client is holding a young woman in a confined space with food and water sufficient to last only a few weeks. Or, an angry and violent client storms out of his lawyer's office, armed with a weapon, after making convincing statements that he is going to kill his spouse. Eleven states require a lawyer, when the lawyer reasonably believes that a threat is, or is likely to become, a reality, to disclose the client's intention to commit a crime likely to result in death or bodily irjury; thirty-nine other jurisdictions permit the lawyer to disclose.! Only Calit51 fornia appears to require that the lawyer remain silent' This proposed bill would permit a lawyer to disclose confidential information to prevent death or substantial bodily harm.'



CORPORATE EXCEPTION

THE PRIVACY ARGUMENT FOR ACP DOES NOT APPLY TO CORPORATIONS. Elizabeth G. Thornburg, [Associate Professor of Law, Southern Methodist University], "Sanctifying Secrecy: The Mythology of the Corporate Attorney-Client Privilege", Notre Dame Law Review, Vol. 69, 1993. The privacy argument has some validity for individuals, but it has no validity for clients that are entities rather than human beings. The human claim to confidentiality stems from "human values and human traits shared by members of every society." While corporations are in many instances treated as fictitious persons, they are not in fact persons, and the arguments made for personal confidentiality cannot simply be transferred to corporate clients. Corporations, unlike humans, have no right to individual autonomy, and "no legal or moral claims to dignity." Individual privacy cannot exist in the context of communications between various employees of the corporation. The corporation has, at most, a property right. This kind of interest is entitled to considerably less weight and can be protected by compensation, if necessary, rather than court-sanctioned secrecy.



LAWYERS HAVE NO SPECIAL OBLIGATION TO PRIVILEGE IN A CORPORATE SETTING.

Elizabeth G. Thornburg, [Associate Professor of Law, Southern Methodist University], "Sanctifying Secrecy: The Mythology of the Corporate Attorney-Client Privilege", Notre Dame Law Review, Vol. 69, 1993. The relationship arguments also fail when applied to the corporate client. While not a real person, a corporation is an entity employing real people, and those human employees might feel betrayed if the lawyer revealed their confidences. This argument, however, misrepresents the nature of the privilege in the corporate setting. As pointed out above, the privilege does not belong to those employees, it belongs to the entity. The lawyer owes her duty to the corporation, not to the employees, and she may in fact have to betray those employees if it is in the corporation's interest. Furthermore, since business rather than personal affairs will be the subject of the lawyer-client communications, the exchanges will probably be less personal than would be the case with individuals.



SINCE CORPORATIONS ARE NOT PEOPLE, THEY DO NOT DESERVE ATTORNEY-CLIENT

PRIVILEGE.

Lee A. Freeman Jr., [member of the Illinois Bar and a member of the Chicago firm of Freeman, Freeman & Salzman], "The Attorney-Corporate Client Privilege: An Obstacle to the Pursuit of Truth", Litigation, Vol. 2, No. 3 (Spring 1976). The reasons for which the Supreme Court has denied the privilege against self-incrimination to corporations, United States v. Kordel, 397 U.S. 1 (1970), militate strongly against the recognition of an attorney-corporate client privilege for employees at all levels. The doctrine of confidential communications involves the personal right of individuals to consult attorneys for legal advice. A corporation, outside of possibly management per? sonnel who are responsible for making decisions on which legal advice is sought, simply cannot be mechan? ically equated with an individual for purposes of the attorney-client privilege. The communications between the many corporate employees and counsel do not occur in the atmosphere of confidentiality which the attorney client privilege requires and was designed to foster. No reason has been adduced why documents that cor? porations are not permitted to conceal by assertion of the constitutional privilege against self-incrimination should, nonetheless, receive absolute protection under a rule having far less justification. Being a creature of the state, the corporation's right to invoke an attorney-client privilege must remain subject to the ultimate authority of the government to ensure compliance with the laws. This public interest will not permit a corporate defendant to conceal its operations behind the privilege in such a way as to mock the judicial process and to defeat justice.



ACP ALLOWS COMPANIES TO HIDE DATA.

Bruce Schneier, [fellow at the Berkman center for Internet & Society at Harvard Law School and a program fellow at the New America Foundation's Open Technology Institute], "Hiding Data Behind Attorney-Client Privilege", Schneier on Security: A blog covering security and security technology, October 21, 2007. Hiding Data Behind Attorney-Client Privilege Interesting advice: He cites a key advantage to bringing in lawyers up front: "If you hire a law firm to supervise the process, even if there are technical engineers involved, then the process will be covered by attorney-client privilege," Cunningham said. He noted that in a lawsuit following a data theft, plaintiffs usually seek a company's records of "all the [data-security] recommendations that were made [before the breach] and whether or not you followed them. And if you go and hire technical consultants only, all that information gets turned over in discovery. [But] if you have it through a law firm, it's generally not." Gregory Engel has some good comments about this: This isn't a "prevention initiative" for data security, it's a preemptive initiative for corporate irresponsibility. I'm not sure it will work, though. I don't think you can run all of your data past your attorney and then magically have it imbued with the un-subpoena-able power of "attorney-client privilege."



SELECTIVE WAIVER

THE SELECTIVE WAIVER HAS WEAKENED THE ACP. Zach Dostart, [Pepperdine University School of Law, J.D., 2006], "Selective Disclosure: The Abrogation of the Attorney-Client Privilege and the Work Product Doctrine", Pepperdine Law Review, Volume 33, Issue 3, 2006. Although the attorney-client privilege traditionally required absolute secrecy, the limited waiver repeals this notion.55 The limited waiver allows a client to disclose confidential communications to a third party and limit the scope of the waiver to that third party only.56 For example, federal prosecutors in investigatory organizations such as the SEC and the Department of Justice ("DOJ") commonly ask corporate counsel to waive the attorney-client privilege and turn over work product and attorney-client protected materials.57 Corporations undoubtedly wish they could hand over the documents for the sole purpose of assisting the SEC or other federal agency.58 However, without use of the selective or limited waiver, a third party may use the disclosed information against the corporation at some future time.59 Thus, the disclosure of this likelyincriminating evidence can be very costly to corporations. Once faced with allegations of illegal behavior, a corporation, in most cases, will conduct an internal investigation.60 This investigation is usually supervised by outside counsel, who will conduct the entire investigation by using a detailed process designed to uncover every possible area of wrongdoing.6 ' Generally, the organization conducting the internal investigation will inform the employees that their communications are not privileged, which will result in many employees becoming less cooperative with the investigation.62 This lack of cooperation leads to increased costs and decreased accuracy and thoroughness. Proponents of the special waiver argue that the efficiency of the investigation would increase if the corporation were to allow the investigating party to obtain whatever information it needed without fear of losing the privileges which traditionally protect an attorney and his or her client.63 The SEC believes that voluntary production of information that is protected by the attorney-client privilege or the work product doctrine greatly enhances the Commission's investigative efforts and, in most cases, makes the Commission's investigations operate more efficiently.64 In the past once the government had chosen which crimes to charge and had obtained a conviction, the Federal Sentencing Guidelines previously prescribed the sentence for the crime.65 Consequently, prosecutors were able to exert a great measure of control over both the charging and sentencing processes. 66 Although the Supreme Court ruled that the Federal Sentencing Guidelines are unconstitutional,67 the resulting effect of this ruling on the government's leverage has yet to be determined.



CONSTITUTION

THE ACP CANNOT OVERRIDE CONSTITUTIONAL OBLIGATIONS. Martin Garbus, [Trial lawyer, author of six books on the Supreme Court and constitutional law], "Attorney-Client Privilege vs. the Constitution", Huffington Post Politics, October 4, 2005. During the nomination process of the new Chief Justice the White House, on the grounds of attorney client privilege, withheld documents John Roberts created while working for the Solicitor General. There is every reason to believe they will do the same for the new nominee. It was unconstitutional then and equally unconstitutional with respect to Harriet Miers. But it is even more important now. At least there was some public record to see what John Roberts thought prior to his appointment -- with Ms. Miers there is none. Clause 2, Section of Article II of the Constitution states the President has the sole power to nominate, but the right to confirm is to be shared by the President and Senate. The Constitution says the President "by and with the ... consent of the Senate, shall appoint ... Judges of the Supreme Court." As Hamilton wrote in Federalist Paper no. 67 the constitutional provision concerning the appointment of Supreme Court justices and other designated federal offices means "the ordinary power of appointment is confided to the President and the Senate jointly." Hamilton refers to the Senate's power concerning appointment as a "concurrent agency with the President." James Madison and the other framers were in agreement. The Senate's constitutional right to access to information the President has is essential, and thus constitutionally mandated. The Senate cannot exercise its obligation without it. The law is clear -- there can be no meaningful consent if the consenting power has no knowledge of the facts. The attorney-client privilege cannot override obligations put into the Constitution by the framers. The high court has dealt with this issue before. Chief Justice Warren Burger, on July 24, 1974, denied former President Richard Nixon's claim that executive privilege permitted him to withhold tapes and to refuse to go before a grand jury.

THE RIGHT TO PRIVACY DOESN’T APPLY. Steven Bradford, [Assistant Professor of Law, University of Nebraska College of Law], "Conflict of Laws and the Attorney-Client Privilege: A Territorial Solution", University of Pittsburgh Law Review 52 (1990-1991). Other authors have argued that the privilege is based on a right of privacy,39 but this explanation is also inadequate.'0 The attorney-client relationship is not the intimate type of relationship that one would expect a right of privacy to protect; it is primarily a business relationship, and business relationships are not usually shielded from discovery. Other proffered rationales for the attorney-client privilege have also been repudiated. 4 " The best explanation for the attorney-client privilege is the desire to promote effective legal representation.



THE SELF-INCRIMINATION ARGUMENT ASSUMES ITS OWN CONCLUSION.

Steven Bradford, [Assistant Professor of Law, University of Nebraska College of Law], "Conflict of Laws and the Attorney-Client Privilege: A Territorial Solution", University of Pittsburgh Law Review 52 (1990-1991). Other rationales have been offered to support the attorney-client privilege, but none fits particularly well. Several authors argue that the privilege is based on the public policy against self-incrimination, 8 but this explanation is partial at best because the privilege is not limited to criminal defendants or those likely to be criminal defendants. It applies to all clients, civil and criminal, and may be used by plaintiffs as well as defendants. More importantly, the privilege against self-incrimination may be waived, and this rationale fails to explain why disclosure to the attorney is not itself a waiver. There is no waiver only if there is an expectation of privacy, and there is an expectation of privacy only because of the privilege. Thus, the self-incrimination rationale assumes its own conclusion.58



LAWYER MORALITY

LAWYERS MUST OBEY THEIR OWN CONSCIENCE IN ADDITION TO THE RULES OF THE

SYSTEM Noonan, John, “The Purposes of Advocacy and the Limits of Confidentiality”, Michigan Law Review, Vol. 64, No. 8 (June 1996), pp. 1492 A lawyer should not impose his conscience on his client; neither can he accept his client's decision and remain entirely free from all moral responsibility, subject only to the restraints of the criminal law. The framework of the adversary system provides only the first set of guidelines for a lawyer's conduct. He is also a human being and cannot submerge his humanity by playing a technician's role. Although the obligation to be candid is not so absolute that it cannot be affected by context, both the seeking and stating of truth are so necessary to the human personality and so demanded by broad social values that the systematic presentation of falsehood is both personally demeaning and socially frustrating. Moreover, the adversary system itself does not demand active suppression of truth. As a free person, cooperating with another free person-his client-to prove the client's innocence in a way which will also lead to the revelation of truth, the lawyer must act with regard for the requirements of the adversary system and with concern for his own standards as a human person, as well as with regard for the requirements of the society which the system serves.



LUBAN ARGUES THAT LAWYERS SHOULD MAINTAIN THEIR MORAL AGENCY IN THE

ATTORNEY-CLIENT RELATIONSHIP

Felicity Nagorcka, Michael Stanton, and Michael Wilson, “STRANDED BETWEEN PARTISANSHIP AND THE TRUTH? A COMPARATIVE ANALYSIS OF LEGAL ETHICS IN THE ADVERSARIAL AND INQUISITORIAL SYSTEMS OF JUSTICE,” 29 Melb. U. L. Rev. 448 )2005) Much has been written about the difficulties of ethical conduct in the adversarial system, particularly due to the perceived conflict for the legal practitioner between the duty to the court on one hand, and the duty to the client on the other. Considerations of the 'public interest' add yet another complicated dimension to these duties. David Luban states that 'non-accountable partisanship' dominates the adversarial system. This is because lawyers advocate their clients' interests with the 'maximum zeal' permitted by law, and are morally responsible neither for the ends pursued by their client nor the means of pursuing those ends, provided both are lawful. 13 Scholars such as Luban who criticise this non-accountability argue that, under an ethical framework of 'moral activism', lawyers should be made aware of, and held responsible for, both the moral agency they possess within the justice system and, accordingly, the consequences of their actions.



THE LAWYER MORALITY ARGUMENT IS JUST AN EXCUSE.

Elizabeth G. Thornburg, [Associate Professor of Law, Southern Methodist University], "Sanctifying Secrecy: The Mythology of the Corporate Attorney-Client Privilege", Notre Dame Law Review, Vol. 69, 1993. In addition, the lawyer morality argument may be an excuse rather than the real point. As far as the lawyers are concerned, the personal arguments ignore the commercial dimension of most law practices. "In substantial part, lawyers are in it for the money," and there is a direct link between advancing client interests and the financial success and professional status of the lawyer. Interestingly, when the lawyer's own financial interest is at stake, the privilege goes away. Curiously, lawyers purport to believe that disclosures to protect third persons involve a breach of loyalty, while revelations to protect the attorney's financial interests do not.



NATIONAL SECURITY

SUSPENSION OF ACP IS NECESSARY FOR NATIONAL SECURITY. Arun Rath, [Journalist, Host of All Things Considered], "The 9/11 Trial: Dispute Over Monitoring Defendants Continues", PBS Frontline, February 11, 2013. The conflict over monitoring the communication of the 9/11 defendants reveals a fundamental clash of good intentions at the military commissions here in Guantanamo: maintaining the sanctity of attorney-client privilege, while preserving national security and the personal safety of those working in and around the prison. The government contends that unfettered access and exchange of materials would be far too dangerous. On Sunday night, Gen. Martins cited a pre-9/11 incident involving Mamdouh Mahmud Salim, an associate of Osama bin Laden who was being held in federal custody for his involvement in the terrorist attacks on U.S. embassies in Kenya and Tanzania. In 2000, Salim stabbed corrections officer Louis Pepe in the eye socket with a plastic comb sharpened into a dagger, leaving the guard with permanent brain damage.



WE MUST ALWAYS BE WILLING TO MAKE VALUE TRADEOFFS BETWEEN CIVIL

LIBERTIES AND NATIONAL SECURITY.

Ralph L. Keeney, [Professor at the Marshall School of Business of the University of Southern California], "Countering Terrorism: THe Clash of Values", OR/MS Today- December 2001. Unwillingness to Make Value Tradeoffs. We have all heard people claim that a specific right is so important that we cannot or should not give up any amount, however small, of that right regardless of the other consequences. Some people claim that freedom of speech or freedom of the press are paramount to other values we all cherish. But these values do conflict with other critical values, such as life, liberty and the pursuit of happiness. Choices must be made. You cannot yell "fire" in a crowded theatre when no fire exists. This could lead to deaths and injuries in an ensuing panic. The value tradeoff made is that one's freedom of speech to yell fire is not as significant as the freedom to live of many others. Such value tradeoffs clearly are recognized and made. Is this not the same type of value issue in examining the freedom of the press to announce planned American military action, details about steps to apprehend anthrax terrorists, or specific vulnerabilities of infrastructure to terrorism? Balancing freedom of the press to release such information against the safety consequences to the public is very difficult. It must be made on a case-by-case basis. But one important point is that such a value tradeoff must be made in these situations. Given this, a second important point is that the value tradeoff should be made based on understanding the consequences and hard thinking about the values. The Justice Department recently decided to allow authorities to monitor all communication between some people in federal custody and their lawyers. The stated purpose is to prevent possible future terrorist acts to save American lives. The president of the American Bar Association reportedly said, "No privilege is more indelibly ensconced in the American legal system than the attorney-client privilege." That may be accurate, but explicit value tradeoffs should still be made to consider the relative merits of this Justice Department action. One of the detained individuals whose communication is to be monitored is Omar Abdul Rahman, who was convicted of the 1993 World Trade Center bombing. What are the appropriate value tradeoffs between the number of American lives that may be lost in the future due to terrorism, the number of individuals in custody whose communications are monitored, and any precedence set by the choices? Failure to address these value tradeoffs explicitly cannot lead to an informed choice.



ACP MEANS NOTHING NOW THANKS TO NSA SPYING.

Kurt Opsahl [Senior Staff Attorney, Electronic Frontier Foundation] and Trevor Timm, [Activist, Electronic Frontier Foundation], "In Depth Review: New NSA Documents Expose How Americans Can Be Spied on Without a Warrant", Electronic Frontier Foundation, June 21, 2013. The attorney client privilege is a long-standing feature of American law, one of the oldest and most cherished privileges through out the ages. As one court explained, it is the cornerstone of the privilege is “that one who seeks advice or aid from a lawyer should be completely free of any fear that his secrets will be uncovered.” The NSA document shows they cut through this privilege like a hot knife through butter. The NSA only has to stop looking at the communication if the person is known to be under criminal indictment in the United States and communicating with her attorney for that particular matter. This remarkably myopic view of the privilege means communications between attorneys and clients in many cases will be unduly spied on. This is exactly what the ACLU was worried about when they challenged the constitutionality of the FISA Amendments Act. They alleged that attorneys working with clients overseas had an ethical obligation not to electronically communicate with them because the NSA was likely able to read their emails. While the Supreme Court dismissed their suit for lack of standing, these documents at least in part, confirm their fears. This could also mean any attorney-client communications with someone like Julian Assange of WikiLeaks, who has never been publicly acknowledged as indicted in the U.S., would be fair game. Even where the privilege applies, the NSA does not destroy the information. The privileged nature is noted in the log, to “protect it” from use in criminal prosecutions, but the NSA is free to retain and use the information for other purposes. No limits on other uses, so long as the NSA General Counsel approves. This is a complete perversion of the attorney-client privilege. The privilege is designed to allow free communication of attorneys and those who they represent, so the client can get good counsel without hiding the truth from his attorney. It is not simply about preventing that communication from being used as evidence in a criminal case.



NO FILES ARE SAFE—ACP IS IRRELEVANT.

Paul Jacobson, [Founder and director of Web Tech Law], "NSA spying negates attorney-client privilege [tech law]", GrubStreet Media Intelligence, July 1, 2013. Another implication for the NSA/GCHQ revelations is that services which are subject to government surveillance and access are probably not satisfactory options for lawyers anymore, at least not without modification. It seems that lawyers are going to have to integrate data security practices into their day to day workflows and take steps to educate their clients about the need to do likewise. Both parties should begin encrypting (or, at least, digitally signing) their communications to prevent (or, in the case of digitally signed communications, detecting) interceptions and unauthorised data access. Ars Technica has a pretty good guide to popular email encryption options for Mac, Windows and Linux users. This is not a quick fix. It requires a pretty extensive review of how you approach email but we, the legal profession, just don’t seem to have much choice. The irony is that encrypting your data makes you a bigger target for the NSA. As the EFF points out – More appallingly, the NSA is allowed to hold onto communications solely because you use encryption. Whether the communication is domestic or foreign, the NSA will hang on to the encrypted message forever, or at least until it is decrypted. And then at least five more years. The benefit of encrypting your data is that good encryption (presumably) takes considerably more resources to crack and affords clients far better protection of their data. It also means lawyers are more capable of complying with their obligations to protect their clients’ privilege. Our digital world has been shaken to its core and as legal professionals, we have little choice but to adapt and take data security more seriously. That means rethinking how we communicate with our clients and which services we use to do that. It also means we have to begin sooner rather than later. Each email or file uploaded to a cloud services is more data exposed to scrutiny by agencies that seem to have little regard for legal professional privilege or privacy.



AT DISCLOSURE

EMPIRICAL STUDIES DISPROVE THE ARGUMENT FROM DISCLOSURE. Elizabeth G. Thornburg, [Associate Professor of Law, Southern Methodist University], "Sanctifying Secrecy: The Mythology of the Corporate Attorney-Client Privilege", Notre Dame Law Review, Vol. 69, 1993. The first important empirical study appeared in the Yale Law Journal in 1962. Its results showed widespread misinformation concerning privileges, especially the attorney-client privilege. It also showed that lawyers were much more convinced than laypeople that the privilege encourages full disclosure. It appeared that laypeople, in deciding what to disclose, were more influenced by the nature of the profession and the services to be provided, than by the existence of a privilege. For example, laypeople expressed more willingness to speak with divorce lawyers, even without the protection of a privilege, than with marriage counselors. The Yale study concluded that while survey participants preferred nondisclosure rules, a substantial majority of laypeople would continue to use lawyers even if secrecy were limited. This leaves open the possibility of a marginal increase in candor based on the privilege, but it does not support a belief that the privilege is a major factor in a client's decision to disclose information.



ACP IS NOT THE REASON CLIENTS CONSULT THEIR LAWYERS.

Elizabeth G. Thornburg, [Associate Professor of Law, Southern Methodist University], "Sanctifying Secrecy: The Mythology of the Corporate Attorney-Client Privilege", Notre Dame Law Review, Vol. 69, 1993. When clients' rather than lawyers' attitudes were studied, the New York survey found that the privilege is not the primary reason that corporate clients consult their lawyers. Business considerations and the corporate employee's relationship with the particular attorney may alone suffice to assure open communications. For example, when questioned about the effect of a privilege that was qualified, rather than absolute, 69.2 percent of the business executives interviewed stated that they would seek legal advice just as often. One of the executives noted: "The benefits outweigh the risks. You have to run a business and the attorney-client privilege is only one of many factors to worry about." Once again, then, this study not only provides some evidence for a marginal increase in communication, but also some evidence that the communications would take place anyway. It shows that lawyers have a stronger belief in the privilege than clients, and that those lawyers often seek the privilege for tactical litigation purposes, rather than to encourage client communication.



THE IMPORTANCE OF ACP TO DISCLOSURE IS A MYTH.

Elizabeth G. Thornburg, [Associate Professor of Law, Southern Methodist University], "Sanctifying Secrecy: The Mythology of the Corporate Attorney-Client Privilege", Notre Dame Law Review, Vol. 69, 1993. Most versions of the utilitarian candor myth envision attorney-client communications as existing in some sort of magically protected zone in which lawyer and client can speak freely, secure in the knowledge that those communications will be repeated only when helpful to the client and only with the client's permission. This picture is no doubt comforting to lawyers and clients alike, but it bears only the vaguest resemblance to reality. For the candor myth to be true, however, the client needs to know, at the very moment she must decide whether to be candid, that the privilege will protect her. The theory, after all, holds that it is the expectation of the privilege, and not some court ruling upholding the privilege in the future, that causes the client to be fully honest. In real life, the existence of the privilege in future litigation is sufficiently uncertain at the time a communication must be made (or not), that the corporate employee must simply decide to reveal what she thinks best and take her chances, with the possibility of privilege playing at most a marginal role.



ACP DOES NOT PROTECT THE LITIGANT FROM SUPPLYING RELEVANT FACTS TO ITS

OPPONENT.

Elizabeth G. Thornburg, [Associate Professor of Law, Southern Methodist University], "Sanctifying Secrecy: The Mythology of the Corporate Attorney-Client Privilege", Notre Dame Law Review, Vol. 69, 1993. In addition to uncertainty in the creation and maintenance of the corporate attorney-client privilege, there exists another reason to disbelieve the candor myth. Remember that the attorney-client privilege does not (at least in theory) protect the litigant from supplying relevant facts to its opponent; the privilege protects only the communication and not the underlying information. If a corporate employee discloses harmful information to the lawyer, and the corporation's opponent seeks that information by interrogatory or deposition, the information must be disclosed. Thus, the attorney-client privilege cannot provide an incentive for the employee to make complete disclosures to the attorney, because the information cannot be guaranteed protection.



ACP DOESN’T PROTECT EMPLOYEES OF CORPORATIONS.

Elizabeth G. Thornburg, [Associate Professor of Law, Southern Methodist University], "Sanctifying Secrecy: The Mythology of the Corporate Attorney-Client Privilege", Notre Dame Law Review, Vol. 69, 1993. The myth of encouraging candor faces another obstacle in the case of corporate employees: the privilege does not belong to those employees. It is very clear that in the corporate setting it is the entity- the corporation- that is the lawyer's client and not the individual employees of the corporation. Therefore, any confidentiality inherent in the employee-lawyer communication will last only as long as it is in the corporation's interest. Even without litigation, the lawyer can report the employee's communication to the employee's superiors. Based on that information, the corporation could choose to punish the employee, fire the employee, or sue the employee for damages. If the employee has confessed to violating government regulations, the corporation could choose to turn the employee over to the authorities in return for more favorable treatment for the corporation.



CORPORATE EMPLOYEES HAVE OTHER INCENTIVES FOR CANDOR.

Elizabeth G. Thornburg, [Associate Professor of Law, Southern Methodist University], "Sanctifying Secrecy: The Mythology of the Corporate Attorney-Client Privilege", Notre Dame Law Review, Vol. 69, 1993. Since the protection provided by the corporate attorney-client privilege is weak, we must look elsewhere for the corporate employee's motivation to talk to the lawyer. Life in a modern bureaucratic organization provides those motives. First, the organization has methods other than privilege claims for compelling employee cooperation. Second, the corporation has sufficient motivation to use its power of compulsion: (1) to get general legal advice in order to determine the legality and potential impact of proposed conduct; (2) to get legal advice concerning the legality and potential impact of past conduct; and (3) to help its attorney during litigation. This Article focuses on the desirability of the privilege during litigation. However, because the absence of a privilege during litigation could, in theory, affect prelitigation communications, those situations are discussed as well. A corporation does not need the attorney-client privilege to encourage employees to talk. Employees depend on the corporation for their jobs and may feel great personal loyalty to their employer. Even if they do not, they will suffer grave consequences if they refuse to cooperate in an investigation, or be honest with counsel. A corporate employee who refuses to confide in the corporation's attorney at his employer's request risks disapproval, demotion, and discharge. The corporation, in turn, has adequate incentives to cause employees to confide in the corporate lawyers. If the corporation needs legal advice (and it is only here that a privilege exists), it needs reliable legal advice. The corporation can only get that advice if the employee tells the attorney both helpful and harmful information. Any legal advice based on a partial picture of relevant facts, and especially legal advice based only on "good" facts, could be extremely unreliable. A rational corporation, then, needs to risk the candor to secure the needed advice.



DISCLOSURE WOULDN’T BETRAY A LOYALTY OR DUTY TO A CLIENT IF THE

EXPECTATION OF THE CLIENT TO CONFIDENTIALITY WERE TO NO LONGER EXIST

Frankel, Marvin, "The Search For Truth Continued: More Disclosure, Less Privilege" 54 University of Colorado Law Review (1982), pp. 57. It is said that disclosures of client confidences amount to "betrayals" that a moral profession cannot allow. But there is no betrayal unless the client has been promised that the relevant evidence will be concealed from the court. The proposed rule would entail, of course, a practice of promising clients no such thing. Clients, who probably have, in any event, a blurred sense of the attorney-client privilege,' would be told the simple truth and asked to do likewise. They would be told that whatever happens elsewhere, or before disputes are brought to the court, a basic element of court proceedings is truth-telling. They would be told that the court expects that evidence useful to the enemy will be disclosed at a seasonable point in the litigation and that the court will impose sanctions if its expectation is thwarted. Objections have been raised that warning the client of the duty to disclose either will be received by the client as an invitation to lie to the lawyer or misunderstood by the client so that it will amount effectively to a snare and a delusion.' For all the sensitivity and humane understanding of the writer I've just cited for these thoughts, his objections rest in large measure upon an undoubtedly subconscious occupational tendency among us to view the Genus Client with disrespect bordering on contempt. It is not inevitable that clients will want us to lie or conceal the truth for them. For those clients that do, it pays heed to their autonomy, and to our own, to let them decide whether they wish to hide evidence, leaving them to handle their villainy without us.



AT INCREASES COMPLIANCE

ATTORNEY-CLIENT PRIVILEGE DOES NOT INCREASE OR ENCOURAGE GENUINE

COMPLIANCE WITH THE LAW Simon, William, "The Confidentiality Fetish: The problem with attorney-client privilege", The Atlantic Monthly, (December 1, 2001) pp. 115 Let's assume, however, that "compliance" means respecting both the letter and the spirit of the law. Is strong confidentiality likely to further it? Someone who feels committed to obeying the law in any case should not need an assurance of confidentiality to disclose his plans. The bar's argument assumes that the client has some disposition to disobey it. So what does a lawyer say to induce him to comply? The lawyer can advise the client about the likelihood that wrongful behavior will be prosecuted, and explain what the penalty for getting caught might be—but there is no guarantee that this information will encourage compliance. In certain areas of practice both the likelihood of prosecution and the size of the penalties are so small relative to the prospective gains from wrongful behavior that full knowledge of the law often makes a client more inclined to violate it. For instance, low audit rates and low penalties for a number of abuses make tax evasion a rational strategy for many clients. (The Internal Revenue Service recently went to court to force several law firms, including the Dallas firm of Jenkins & Gilchrist, to disclose their tax-shelter client lists, quite understandably suspecting that the firms' legal advice increased the propensity of their clients to engage in practices the IRS considers illegal.)



EVEN IF ERRODING ATTORNEY-CLIENT PRIVILEGE DOES LIMIT THE ABILITY TO

ENCOURAGE COMPLIANCE, INSTANCES WHERE COMPLIANCE CAN BE ENCOURAGED

WOULD BE MORE MEANINGFUL

Simon, William, "The Confidentiality Fetish: The problem with attorney-client privilege", The Atlantic Monthly, (December 1, 2001) pp. 115

Cutting back confidentiality might leave lawyers with fewer opportunities for encouraging their clients to comply, but they would have more success with the opportunities they did get. If lawyers had to disclose illegal behavior through noisy withdrawal, as the SEC proposes, they would have much more leverage with those clients who did consult them. The net effect of confidentiality, therefore, is probably to reduce compliance with the law. This truth is implicit in laws such as those requiring therapists to report possible child abuse by their clients. Knowledge of this requirement may prevent some potential abusers from seeking professional help in time—but policymakers have consistently assumed that disclosure laws prevent and stop abuse much more often. Indeed, the bar's own confidentiality rules allow disclosures that would prevent criminal acts likely to cause "death or substantial bodily injury." If confidentiality really promoted compliance, then the rules protecting it would be strengthened, not relaxed, when the stakes were high.



ATTORNEY-CLIENT PRIVILEGE IS NOT NECESSARY TO ENCOURAGE COMPLIANCE

WITH THE LAWS AS THERE ARE WAYS TO CIRCUMVENT DISCLOSURE

Gardner, James, “A Re-Evaluation of the Attorney-Client Privilege (Part I)”, Villanova Law Review, Vol. 8, No. 3 (Spring 1963), pp. 318 The reluctant litigant has no choice other than to seek the aid of an attorney when his interests are seriously threatened in areas where legal action or defense is the most effective remedy. Of course, there will always be reluctant suitors, and this will be true whether or not there is a privilege. It cannot be told of course whether the parties would be any more reluctant if the privilege were lost. Probably not in today's sophisticated world, since a party can consult a lawyer without giving the complete account, and this is well understood by the rank and file of the general public, not to mention the more elite. Nevertheless, there will always be a certain amount of hesitancy by the timid and the hunted in consulting counsel, and we cannot be sure as to just how much the existence of the privilege tends to negative such natural hesitancy of people in these categories. If this alone were the problem, then we might well hesitate to insist upon the retention of the privilege, because of an inability to reason from the premises to the conclusion (of its proven value). Its degree of value here will always tend to remain largely in the area of speculation. However, when we reach the area of actual consultation of the lawyer by the client, we are on more solid ground in support of the privilege. Even here, however, it is soon apparent that the client in general has no other choice than to make full disclosure to his lawyer, for his own enlightened self-interest. Nevertheless, if he does not make full disclosure to his lawyer there is nothing which can be done about it - except that the experienced counselor can exercise patience and use his persuasive powers. In fact, it is often the case today that the client will fail to fully disclose the facts of his case to his counsel even though he is fully protected from compulsory disclosure of either himself or his lawyer through the judicial process, and is well aware of this protection.



NEGATIVE EVIDENCE

DEFINITIONS

MODERN DEFINITION OF ATTORNEY-CLIENT PRIVILEGE Grace M. Giesel, [James R. Merritt Professor and Distinguished University Teaching Professor, University of Louisville, Louis D. Brandeis School of Law.] "End the Experiment: The Attorney-Client Privilege Should Not Protect Communications in the Allied Lawyer Setting". Marquette Law Review, Vol. 95, 2011-2012. The modern attorney–client privilege is the client’s privilege; the client controls its assertion and waiver.59 The privilege prevents compelled disclosure of confidential communications that occur between an attorney and a client if the purpose of the communication is to obtain or render legal advice60 and if the communication is not in furtherance of a crime or fraud.61 The protection of the privilege ends if the client waives it.62 An often-quoted definition of the modern attorney–client privilege was stated by Judge Wyzanski in United States v. United Shoe Machinery Corp.: 63 (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.64 The party claiming the protection of the privilege has the burden of proving that it applies to the particular communication.65 Courts require the opponent to the claimant of the privilege to prove a prima facie case of waiver.66 Then, the claimant of the privilege must rebut the prima facie case to successfully claim the privilege.



DEFINITION

Andrew R Nash. IN-HOUSE BUT OUT IN THE COLD: A COMPARISON OF THE ATTORNEY−CLIENT PRIVILEGE IN THE UNITED STATES AND EUROPEAN UNION. St. Mary’s Law Journal. (2012) Moving ahead to current times, the modern formulation of the attorney−client privilege was summarily presented in United States v. United Shoe Machinery Corp. 16 The court concluded that the privilege applies only when it is asserted by a current or potential client, communicating to a member of the bar or the bar member’s subordinate who, in regard to the communication, “is acting as a lawyer.”17 Furthermore, the communication must concern an issue disclosed to the attorney by the client in privacy for the purpose of obtaining the attorney’s legal opinion on the law, legal services, or other legal assistance.18 Finally, the privilege will not attach if the client does not claim the privilege, waives the privilege, or seeks the legal services for the purpose of committing a crime or tort.19



THE MODERN RATIONALE FOR ATTORNEY-CLIENT PRIVILEGE IS UTILITARIAN.

Grace M. Giesel, [James R. Merritt Professor and Distinguished University Teaching Professor, University of Louisville, Louis D. Brandeis School of Law.] "End the Experiment: The Attorney-Client Privilege Should Not Protect Communications in the Allied Lawyer Setting". Marquette Law Review, Vol. 95, 2011-2012. In Upjohn Co. v. United States, 68 the U.S. Supreme Court discussed the purpose of the modern rationale of the attorney–client privilege: [The] purpose [of the privilege] is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and [the] administration of justice. The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer’s being fully informed by the client.69 The theory is that clients need the fully-informed advice of their attorneys so that they can determine how to proceed in accordance with the law.70 By proceeding in accordance with the law, the administration of justice, on a global measure, improves.71 As so stated, this rationale is utilitarian.72 It has several premises. One premise is that clients will not be completely forthcoming with information when consulting an attorney unless they are certain that a court cannot compel disclosure of their communications with counsel.73 Another premise of the rationale is that complete client disclosure yields superior legal advice.74 And a third premise is that superior legal advice will lead clients to observe and obey the law.75



ATTORNEY-CLIENT PRIVILEGE INVOLVES A CONFIDENTIALITY REQUIREMENT

Grace M. Giesel, [James R. Merritt Professor and Distinguished University Teaching Professor, University of Louisville, Louis D. Brandeis School of Law.] "End the Experiment: The Attorney-Client Privilege Should Not Protect Communications in the Allied Lawyer Setting". Marquette Law Review, Vol. 95, 2011-2012. Today, any definition of the modern attorney–client privilege includes a requirement that the communication be confidential at its inception.91 In addition, the communication must be kept confidential for the communication to continue to be protected by the privilege.92 The confidentiality mandate is not absolute,93 but it does require that the client reasonably and honestly believe the communication to be between the client and the attorney only.94 Courts view the presence at the time of the communication of third parties who are not agents of the attorney or the client as an indication that the client had no intention that the communication be confidential.95 Thus, the communication is not protected by the privilege. If the client later shares the communication with a third party, the courts view the sharing as an indication that confidentiality is no longer important.96 Thus, the communication is no longer protected by the privilege even though it may have been privileged before the act of sharing. This confidentiality requirement became a part of privilege law late in the nineteenth century.97 It acts not as a requirement that furthers the rationale of the attorney–client privilege but rather as a necessary limit on the privilege’s scope.98 The privilege acts to encourage a client to fully disclose information to the lawyer. The rationale of the confidentiality requirement is that if a client does not care about the confidential nature of a communication, the client will readily disclose all necessary information to the lawyer without the encouragement of the privilege.99 So, the confidentiality requirement ensures that the privilege applies only where it is needed as an encouragement.



THE ATTORNEY-CLIENT PRIVILEGE HAS MANY CONDITIONS.

Adjoa Linzy, [Duke University School of Law, J.D. 2009; University of North Carolina at Chapel HIll, B.A. Political Science and International Studies. Associate at DLA Piper's International Trade Practice Group.] "The Attorney-Client Privilege And Discovery of Electronically-Stored Information", Duke Law & Technology Review, No. 011, 2011. The attorney-client privilege is one of the oldest recognized privileges for confidential communications. 5 Most states codify the privilege in a statute or rule;6 others still rely on common law.7 Courts have articulated the elements of the privilege in different ways. The attorneyclient privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.85 The purpose of the privilege is “to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.”9 The privilege “rests on the need for the advocate and counselor to know all that relates to the client’s reasons for seeking representation if the professional mission is to be carried out.”10



THE ATTORNEY-CLIENT PRIVILEGE IS NARROWLY CONSTRUED TO PREVENT

IMPEDING DISCOVERY OF THE TRUTH.

Adjoa Linzy, [Duke University School of Law, J.D. 2009; University of North Carolina at Chapel HIll, B.A. Political Science and International Studies. Associate at DLA Piper's International Trade Practice Group.] "The Attorney-Client Privilege And Discovery of Electronically-Stored Information", Duke Law & Technology Review, No. 011, 2011. The privilege is not absolute and must be narrowly construed since it impedes full and free discovery of the truth.The Supreme Court notes that testimonial exclusionary rules and privileges contravene the fundamental principle that “‘the public . . . has a right to every man’s evidence.” As such, [the privilege] must be strictly construed and accepted “only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.”11



WORK-PRODUCT IMMUNITY IS DIFFERENT FROM ATTORNEY-CLIENT PRIVILEGE

Andrew R Nash. “In-house but Out in the Cold: A Comparison of the Attorney−Client Privilege in the United States and European Union.” St. Mary’s Law Journal (2012) Nevertheless, while the work-product immunity doctrine and attorney−client privilege are closely related, there are some significant differences.40 Most notably, the “work-product immunity applies only to documents prepared in anticipation of litigation, not to documents prepared for ordinary business purposes.”41 The role of in-house counsel as an advisor on compliance with the law throughout the ordinary course of business may exponentially complicate such distinctions.42 Ultimately, however, in-depth discussion of the nuances between the attorney-client privilege and the work-product immunity doctrine is beyond the scope of this Comment. Without a doubt, the single most influential case pertaining to attorney−client privilege in the corporate world is Upjohn Co. v. United States. 43 Upjohn, a pharmaceutical company, conducted an internal investigation regarding suspicious payments made by a subsidiary to secure government business in a foreign country.44 Gerard Thomas, the general counsel for Upjohn, prepared a set of questionnaires and sent them to the foreign general managers, as well as all area managers, with an attached letter from the chairman of the board instructing them to treat the responses to the questionnaire, and the investigation itself, as highly confidential.45 The company subsequently prepared a report with the information and made a voluntary disclosure of the suspicious payments to the Securities Exchange Commission (SEC) and Internal Revenue Service (IRS).46 An IRS investigation followed, and the special agents demanded production of the questionnaires, memoranda, and notes used in conjunction with the internal investigation.47 Upjohn asserted the attorney−client privilege and claimed such documents as work product.48 On appeal, the Sixth Circuit found “that the privilege did not apply” because it was not asserted by a “client” and remanded the case to the district court to apply the control-group test.49 Furthermore, the appellate court cautioned that broadening the attorney−client privilege would create a “zone of silence,”50 presumably referring to a questionable area of undiscoverable facts. Internal Revenue Service (IRS).46 An IRS investigation followed, and the special agents demanded production of the questionnaires, memoranda, and notes used in conjunction with the internal investigation.47 Upjohn asserted the attorney−client privilege and claimed such documents as work product.48 On appeal, the Sixth Circuit found “that the privilege did not apply” because it was not asserted by a “client” and remanded the case to the district court to apply the control-group test.49 Furthermore, the appellate court cautioned that broadening the attorney−client privilege would create a “zone of silence,”50 presumably referring to a questionable area of undiscoverable facts.



ACP AND CONFIDENTIALITY ARE NOT THE SAME THING

Fred C. Zacharias, “The Fallacy that Attorney-Client Privilege has been Eroded: Ramifications and Lessons for the Bar,” 1999 Prof. Law. Symp. Issues 39 (1999) My previous work illustrates some of the many instances In which lawyers, courts, and legislatures have confused privilege and confidentiality."' Perhaps the most significant area of confusion is in lawyers' failure to advise clients that information they receive, though confidential, may still be subject to discovery requirements once litigation commences. Once a client tells a lawyer a fact, the lawyer no longer may let the client hide the fact from discovery. Even if the communication is an otherwise protected discussion of the law, privilege exclusions"' or exceptions may make the communication discoverable." 3



ATTORNEY-CLIENT PRIVILEGE SHOULD BE DYNAMIC TO ACCOUNT FOR CHANGING

SOCIAL NORMS.

Gregory C. Sisk [Orestes A. Brownson Professor of Law, University of St. Thomas School of Law] and Pamela J. Abbate [J.D. Candidate, 2009, University of St. Thomas School of Law], "The Dynamic Attorney-Client Privilege", 16 February 2009. When a lawyer performs services for a client in the context of a legal practice, the strong presumption should be that the client genuinely seeks legal advice or assistance and that any communications with the attorney are within the attorney-client privilege.196 When a lawyer undertakes to advise or assist a client in a matter that may have legal implications, the introduction of an attorney-client relationship changes the environment in a manner that invites the protection of the privilege. When a client chooses to bring a matter to a lawyer, the lawyer then is able to bring to bear his or her legal training to provide legal advice or assistance as appropriate, or even to confirm that the law does not exact any additional obligations. In the modern world, with the expansion of the law, the occasions for seeking such legal advice and assistance have increased. Moreover, as legal directives overlap with non-legal considerations, the lawyer and client should be free to address a problem in a creative and integrated manner, with the privilege granting a unified protection to the deliberations. In each such case, the client naturally and justifiably expects that a confidential and fiduciary relationship has been created with a member of the legal profession. Moreover, if we wish to encourage lawyers to engage in moral deliberation with their clients, lawyers must be able to assure clients that this moral exchange is confidential, a protection secured by the attorney client privilege. By contrast, a crabbed construction of the privilege that excludes efforts by lawyers to elevate the discourse with clients beyond the narrow question of what is legally permissible would reduce lawyers to amoral legal technicians and leave clients unable to call upon lawyers to assist in moral aspiration. If we want lawyers to be morally- and ethically grounded, then we must assure lawyers that their introduction of social, political, business, and economic factors, as well as moral principles, into a discussion with legal clients will not have the perverse effect of removing the protection of the privilege. An attorney-client privilege that adjusts dynamically to the changing scope of the practice of law and that facilitates a robust moral dialogue between the attorney and the client best serves the public interest in obedience to the law and social justice.84



SCOPE AND REASONABLENESS OF ACP

PROSECUTORIAL SUBPOENAS DIRECTED AT LAWYERS DO NOT CHANGE THE SCOPE

OF THE ATTORNEY-CLIENT PRIVILEGE Fred C. Zacharias, “The Fallacy that Attorney-Client Privilege has been Eroded: Ramifications and Lessons for the Bar,” 1999 Prof. Law. Symp. Issues 39 (1999) The most prominent context in which the perception of an eroding privilege has surfaced is the highly publicized debate over prosecutorial subpoenas directed to lawyers.5 There is no question that the Incidence of lawyer subpoenas has risen,6 largely because prosecutors increasingly have implemented modern statutes-including fee forfeiture statutes 7-that Implicate the conduct of lawyers.' The organized bar, fearing potential Intrusion into lawyer-client relationships, has promoted changes In professional rules that would limit lawyer subpoenas.' Prosecutors have resisted the changes." Whatever the merits of the various lawyer subpoena rules, the prosecutorial subpoenas that have prompted the rules for the most part do not work any changes to attorney-client privilege doctrine. The subpoenas typically seek unprivileged information-often information excepted from privilege through the crime-fraud exclusion." Although there is an argument that subpoenas requiring lawyers to give Information behind the closed doors of a grand Jury should be forbidden because such subpoenas chill clients' trust In their lawyers,'" that argument goes well beyond any existing legal entitlement to secrecy.3



MODERN COURTS HAVE ACTUALLY STRENGTHENED THE ACP IN SEVERAL WAYS

Fred C. Zacharias, “The Fallacy that Attorney-Client Privilege has been Eroded: Ramifications and Lessons for the Bar,” 1999 Prof. Law. Symp. Issues 39 (1999) Yet in other areas, courts have been distinctly more protective of attorneyclient secrecy than in the past. For example, modern courts have been far less willing to find that a privilege holder has abandoned the privilege based on an action not Intended to have that effect. In the old days, even the failure to shred privileged documents before discarding them In the trash would have been deemed an abandonment." In modern days, that is an unlikely result.' Similarly, decisions finding waiver of the privilege through inadvertent disclosure of documents by attorneys have drifted from a tendency to find waivers absolutely upon any disclosure84 to more tempered applications of intermediate rules balancing a host of relevant factors. 5 If one reviews the modern cases, one finds a phenomenon quite inconsistent with the notion of an eroding attorney-client privilege. Litigants are quite prepared to press novel arguments for extending the privilege and courts have proven sympathetic. In United States v. Ackert, for example, a United States magistrate, acting for a federal district court, found privileged conversations between a lawyer and a third-party investment banker in which the lawyer sought investment advice for his client. The magistrate upheld the claim that attorney-client secrecy should apply whenever information received by the lawyer facilitates legal advice the lawyer plans to give to a client.' The claim of privilege sought a dramatic extension of traditional privilege protections, which are limited to communications between lawyers, clients, and (sometimes) their agents.' Although the Court of Appeals for the Second Circuit ultimately overruled the lower court" and restored privilege law to its earlier state," the proceedings in Ackert strongly suggest a willingness by courts to expand rather than contract the scope of attorney-client secrecy.



THE BALANCING TEST FOR ACCIDENTAL DISCLOSURES IS MORE PROTECTIVE OF

PRIVILEGE THAN THE AUTOMATIC WAIVER DOCTRINE

Fred C. Zacharias, “The Fallacy that Attorney-Client Privilege has been Eroded: Ramifications and Lessons for the Bar,” 1999 Prof. Law. Symp. Issues 39 (1999) Other areas of controversy include the courts' interpretation of privilege exceptions involving consent to disclosure (or abandonment of the privilege). Courts consistently have upheld the notion that even inadvertent disclosures of documents by lawyers may waive the privilege.2 ' Commentators have criticized the courts for underemphasizing the importance of client secrecy."6 The critics typically have ignored the fact that the modern courts' tendency to employ a balancing rule for assessing inadvertent disclosures 7 is more protective of attorney- client secrecy than the traditional automatic waiver doctrine.21



THE CRIME/FRAUD EXCEPTION CHECKS BACK UNREASONABLE USES OF ACP

Lance Cole [Assistant Professor of Law, The Dickinson School of Law of The Pennsylvania State University], “Revoking Our Privileges: Federal Law Enforcement's Multi-Front Assault On The Attorney-Client Privilege (And Why It Is Misguided),” 48 Vill. L. Rev. 469 (2003) The crime-fraud exception protects against the most egregious class of abuses of the privilege: instances in which a client misuses legal advice to commit a crime or perpetrate a fraud.' 43 The Supreme Court has stated that "the purpose of the crime-fraud exception to the attorney-client privilege [is] to assure that the 'seal of secrecy' . . . between lawyer and client does not extend to communications 'made for the purpose of getting advice for the commission of a fraud' or a crime."1 44 The rationale for the exception is well established and follows from the policy goals that underlie recognition of the attorney-client privilege in the first instance: the attorney-client privilege is intended to promote the administration of justice, and any use of the privilege that is inconsistent with that end should not be permitted. 145 The crime-fraud exception prevents use of the privilege to protect communications that do not further legitimate purposes and therefore do not promote the administration of justice. 146 It is important to recognize, however, that the exception applies even if the attorney is completely innocent and unaware of the client's wrongdoing; 14 7 it is the intent and actions of the client that determine whether or not the exception applies. 148 Of course, the exception also applies if the attorney acts in furtherance of criminal or fraudulent activity. 149



RULES FOR WAIVER OF ACP SERVE AS A CHECK AGAINST ABUSE OF THE PRIVILEGE

Lance Cole [Assistant Professor of Law, The Dickinson School of Law of The Pennsylvania State University], “Revoking Our Privileges: Federal Law Enforcement's Multi-Front Assault On The Attorney-Client Privilege (And Why It Is Misguided),” 48 Vill. L. Rev. 469 (2003) Several established categories of waiver serve to prevent governmental law enforcement agencies from being disadvantaged by assertions of privilege that are not entitled to confidentiality. For example, if the subject of a civil governmental enforcement proceeding or a criminal prosecution asserts reliance on advice of counsel as a defense, the privilege will be deemed to have been waived and the government will be permitted full access to the privileged communications in which the advice was conveyed. 16 9 Similarly, if the subject of an enforcement proceeding seeks to make "offensive" use of privileged communications in presenting a defense, such use will be construed as a waiver and the communications will no longer be protected. 170 The rationale for this rule is that "the attorney client privilege cannot at once be used as a shield and a sword." 171



BARRING SELECTIVE WAIVER IS A CHECK ON ACP

Lance Cole [Assistant Professor of Law, The Dickinson School of Law of The Pennsylvania State University], “Revoking Our Privileges: Federal Law Enforcement's Multi-Front Assault On The Attorney-Client Privilege (And Why It Is Misguided),” 48 Vill. L. Rev. 469 (2003) The waiver rule also applies if otherwise protected work product is voluntarily disclosed to the government in an adversarial proceeding. 172 If a party who is potentially subject to an agency civil enforcement proceeding or criminal prosecution makes a strategic decision to provide work product documents to law enforcement authorities in order to obtain an advantage in that proceeding, then work product protection for those documents likely will be found to have been waived. 173 Significantly, the waiver extends to other parties, in addition to the party who was provided the documents, such as other governmental authorities and private civil litigants, and even to other proceedings. 174 This outcome is consistent with the view of most courts that a "selective" disclosure of privileged documents in one proceeding or as to one governmental agency waives the privilege for those documents in other proceedings and before other agencies.17 5



EXCEPTIONS

THERE ARE MULTIPLE EXCEPTIONS AND CONDITIONS TO THE ACP. John W. Gergacz, [Professor at the University of Kansas School of Business], "Attorney-Client Privilege: Inadvertent Disclosure and a Proposed Construction of Federal Rule of Evidence 502", The Federal Courts law Review, Volume 5, Issue 1, 2011. However, not every attorney-client communication is privileged. An oft-cited test for identifying those that are protected appeared in United States v. United Shoe Machinery Corporation. 14That test has three principal conditions. First, the communicators must be an attorney and a client. For the privilege to apply, the attorney must both be licensed15and acting in a lawyer-like role.16 A lawyer who teaches is not functioning as an attorney. This lawyer, instead, is a professor. Similarly, a person must seek legal guidance to be deemed a client. Merely speaking with an attorney is not enough to satisfy this privilege component.17 The second United Shoe Machinery condition focuses on the purpose for the communication: to assist an attorney in providing legal advice to a client.18 Information exchanged for a different reason does not bear upon the policies of the privilege. Thus, there is no need to cloak it with a confidentiality protection. In a corporate setting, the distinction is often made between business-oriented communications, which are discoverable, and communications that seek legal advice.19 United Shoe Machinery’s third condition concerns confidentiality. This condition has two aspects. First, the attorney-client communications must occur in confidence.20 Second, the communications must remain confidential afterwards. The privilege does not bestow its protection if the attorney and client were not, at the outset, concerned about privacy. After all, the privilege is not warranted if the client did not need a confidentiality protection to encourage candor. 21 III. THE DOCTRINES OF WAIVER AND INADVERTENT DISCLOSURE The attorney-client privilege imposes an obligation to safeguard confidential communications from disclosure. Failure to do so breaks the seal that the privilege provides, and the communications, thereafter, are as discoverable as any other. The doctrines of waiver and inadvertent disclosure concern this aspect of confidentiality.



WAIVER

SELECTIVE WAIVER IS NO BETTER Gretchen Elizabeth Eoff, “Losing The Battle In The War On Attorney-Client Privilege Through Selective Waiver: Viewing The Selective Waiver Quagmire Through The Lens Of The Tenth Circuit’s Opinion In In Re Qwest Communications International.” Denver University Law Review (2008) Legal scholars and corporate attorneys believe a war is being waged against attorney-client privilege. The latest battle involves the current policies of governmental agencies which encourage selective waiver of attorney-client privilege thereby corroding the confidential attorney-client relationship between companies and their lawyers, resulting in “great harm both to companies and the investing public.”10 Lawyers play a key role in helping business entities comply with the law and to fulfill this role and “must enjoy the trust and confidence of the managers and the board, and must be provided with all relevant information necessary to properly represent a client.”11 By requiring routine selective waiver of an entity’s attorney-client and work product protections, governmental policies encouraging selective waiver “discourage entities from consulting with their lawyers, thereby impeding the lawyers’ ability to effectively counsel compliance with the law.”12 This results in harm not only to companies, but the investing public as well.13



IF CLIENT COMMUNICATES INFO TO A 3RD

PARTY, PRIVILEGE IS EFFECTIVELY WAIVED

Gretchen Elizabeth Eoff, “Losing The Battle In The War On Attorney-Client Privilege Through Selective Waiver: Viewing The Selective Waiver Quagmire Through The Lens Of The Tenth Circuit’s Opinion In In Re Qwest Communications International.” Denver University Law Review (2008) The Tenth Circuit Court of Appeals has held that the key to attorney-client privilege is confidentiality. The “privilege is lost if the client discloses the substance of an otherwise privileged communication to a third party.”20 The Court reasoned that “the confidentiality of communications covered by the privilege must be jealously guarded by the holder of the privilege lest it be waived.21 The “courts will grant no greater protection to those who assert the privilege than their own precautions warrant.”22 The Tenth Circuit has further held that “[c]ourts need not allow the claim of attorney-client privilege when the party claiming the privilege is attempting to utilize the privilege in a manner that is not consistent with the privilege.”23 Moreover, any “voluntary disclosure by the client is inconsistent with the attorney-client relationship and waives the privilege.”24



DISCLOSURE AND EFFECTIVE REPRESENTATION

THE ATTORNEY-CLIENT PRIVILEGE ENCOURAGES CLIENTS TO MAKE DISCLOSURE TO

THEIR ATTORNEYS Grace M. Giesel, [James R. Merritt Professor and Distinguished University Teaching Professor, University of Louisville, Louis D. Brandeis School of Law.] "End the Experiment: The Attorney-Client Privilege Should Not Protect Communications in the Allied Lawyer Setting". Marquette Law Review, Vol. 95, 2011-2012. The attorney–client privilege exists to encourage clients to make complete disclosure to their attorneys.17 The privilege protects communications between attorneys and clients from compelled disclosure and this protection encourages clients to make full disclosure to their counsel. Full disclosure allows lawyers to render the best and most apt legal advice. In a preventative view, clients may adapt their conduct to abide by the law in response to this superior advice. If clients, though not perfectly certain, are at least generally certain that the privilege protects their communications with counsel from disclosure in future proceedings, clients may disclose more fully.18



CONFIDENTIALITY BETWEEN ATTORNEYS AND CLIENTS IS THE CORNERSTONE OF

LEGAL PRACTICE.

Gregory C. Sisk [Orestes A. Brownson Professor of Law, University of St. Thomas School of Law] and Pamela J. Abbate [J.D. Candidate, 2009, University of St. Thomas School of Law], "The Dynamic Attorney-Client Privilege", 16 February 2009. The confidential nature of the attorney-client relationship is the foundation for everything the lawyer does.83 Because clients are guaranteed confidentiality, they are willing to share their most private thoughts and relate the most sensitive and embarrassing information, secure in the knowledge that what has been shared will be safeguarded.84 If the lawyer is to effectively and fairly represent the client—rich or poor, confident or vulnerable, well-educated or working class, sophisticated in legal affairs or unfamiliar with the legal system—the lawyer must be able to instill trust. Confidentiality is the cornerstone of that trust. If the lawyer is to persuasively counsel clients to do the right thing, legally and morally, the lawyer must have full access to information from the client and be free to introduce a wide-range of topics and ramifications. The free flow of information between lawyer and client depends on the assurance of confidentiality. The traditional ethical directive to the lawyer to maintain the client’s confidences85 is fortified by the additional security given to communications through the testimonial/evidentiary attorney-client privilege.86 By protecting this dialogue from outside intrusion or examination, the privilege serves the vital professional purposes of building a strong attorney-client relationship and ensuring that the lawyer obtains the information necessary to serve the client well. In addition, by allowing lawyers and clients to engage with difficult problems by considering the full spectrum of legal and moral dimensions, the privilege also promotes the public interest in obedience to the rule of law and advancement of the common good.87



ACP ALLOWS CLIENTS TO SPEAK FREELY ABOUT THEIR LEGAL PROBLEMS.

Gregory C. Sisk [Orestes A. Brownson Professor of Law, University of St. Thomas School of Law] and Pamela J. Abbate [J.D. Candidate, 2009, University of St. Thomas School of Law], "The Dynamic Attorney-Client Privilege", 16 February 2009. “The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law.”88 While the lawyer generally is obliged to protect all information relating to the representation and not voluntarily disclose such information,89 the lawyer nonetheless may be required to respond to a lawful subpoena or court order that seeks information outside the parameters of a legally-recognized privilege.90 But the lawyer should not be forced to divulge the substance of communications falling within a privilege and indeed must take appropriate steps to assert and competently advance a privilege in response to any request. Thus, the contents of communications between an attorney and a client constitute a specially-protected category of confidential information. The modern statement of the four basic elements of the attorney-client privilege is stated succinctly in the Restatement of the Law Governing Lawyers approved by the American Law Institute in 2000: “(1) a communication (2) made between privileged persons (3) in confidence (4) for the purpose of obtaining or providing legal assistance for the client.”91 By this understanding, attorney-client communications are preserved inviolate so clients can speak freely about their legal problems without fear that what is exchanged between the lawyer and client might subsequently be used as evidence against the client. When a person contacts a lawyer with the purpose of obtaining legal counsel, the communications that follow are privileged. It is the client’s pursuit of legal advice or assistance that triggers the privilege.92



ACP ALLOWS FOR THE MOST EFFECTIVE LEGAL REPRESENTATION.

Ursula H. Weigold, [Associate Professor of Law, University of St. Thomas School of Law], "The Attorney-Client Privilege as an Obstacle to the Professional and Ethical Development of Law Students", Pepperdine Law Review, Volume 33, Issue 3. "The attorney-client privilege may well be the pivotal element of the modem American lawyer's professional functions."' 59 The attorney-client evidentiary privilege against disclosure enforces and protects a lawyer's ethical duty of confidentiality, which is recognized as one of the most fundamental duties an attorney owes to a client.160 Both the fiduciary relationship existing between a lawyer and client and the proper functioning of the legal system require the preservation by the lawyer of confidences and secrets of the client.16 ' The promise of confidentiality engenders trust, which is critical to the proper working of the attorney-client relationship. Attorneys must have full information from the client for effective representation, 162 and clients are unlikely to reveal embarrassing or incriminating information unless they know the information will remain secret. In representing a client, the lawyer may need information that the client otherwise has a right to keep confidential. By appeasing the client's fears about revealing sensitive or unfavorable facts, the privilege makes it more likely that the lawyer will obtain the information necessary for advising the client or for advocating on the client's behalf.'63 Without the privilege, the client might not disclose secrets in the first place, and this justifies the loss of evidence that results from the privilege.' 64



THE ACP PROMOTES BROADER SOCIETAL GOALS.

Ursula H. Weigold, [Associate Professor of Law, University of St. Thomas School of Law], "The Attorney-Client Privilege as an Obstacle to the Professional and Ethical Development of Law Students", Pepperdine Law Review, Volume 33, Issue 3. The attorney-client privilege also furthers larger societal goals. Confidentiality may encourage laymen to seek early legal assistance and obtain the full advantage of the legal system. 1 65 Given the complexity of the law, the privilege is important because it encourages citizens to use lawyers' skills and expertise to protect their rights and navigate within the legal system.166 A lawyer's loyalty to a client protects the citizen, right or wrong, against an abuse of power by the government, and thus, confidentiality protects the public interest. 1 67 Although detractors of the privilege argue that it chiefly protects clients with "bad" secrets or intentions who benefit from secrecy, even then confidentiality may enable the lawyer, who is in a relationship of trust with the client, to exercise moral influence and give advice that is not only important to the client, but is also socially desirable. 168 Clients who trust their lawyers are more likely to accept the lawyer's advice to do the right thing.169 Thus, the privilege does not protect the client's secrets for the sake of privacy, but rather is intended to promote broader interests, including respect for the rule of law. 170 The privilege is directed at the proper working of the legal system and the attorney-client relationship within it. The intended beneficiary is not the individual client but the system-wide administration of justice, which depends on frank and open client-attorney communication.171



WITHOUT THE ACP, LAWYERS BECOME NOTHING MORE THAN MESSENGERS.

Zach Dostart, [Pepperdine University School of Law, J.D., 2006], "Selective Disclosure: The Abrogation of the Attorney-Client Privilege and the Work Product Doctrine", Pepperdine Law Review, Volume 33, Issue 3, 2006. The benefits of the attorney-client privilege to the public are undisputed.31 Similarly to the benefits of the work product doctrine, the attorney-client privilege permits attorneys to zealously represent their clients' interests. This safeguard fosters a public policy that seeks to assure "the right of every person to freely and fully confer and confide in one having knowledge of the law, and skilled in its practice, in order that the former may have adequate advice and a proper defense."32 If the attorney can easily be compelled to produce the privileged communications, the client will not disclose any unfavorable information.33 The attorney will then become nothing more than a messenger of the facts, rather than a strategist of the client's case. Similar to the attorney-client privilege that attaches between an individual and an attorney, the corporate attorney-client privilege is between the client-the corporation-and the attorney.34 Whether all employees within a corporation should be able to gain the benefits of the attorney-client privilege has been a subject of debate.35 The Upjohn Court further clarified that the protection applies to corporate internal investigations and the daily task of corporate counseling.3 6



GIVEN THE IMPORTANCE OF BEING ABLE TO PROPERLY NAVIGATING THE LEGAL

SYSTEM, ATTORNEY-CLIENT PRIVILEGE IS THE MOST IMPORTANT PRIVELEGE

AFFORDED TO CLIENTS

Gardner, James, “A Re-Evaluation of the Attorney-Client Privilege (Part I)”, Villanova Law Review, Vol. 8, No. 3 (Spring 1963), pp. 284-285 In our adversary system of administering justice, the lawyer occupies a central position as investigator, adviser, manager, and repository of facts and law. This makes the attorney-client privilege the most important of the personal privileges, especially from the standpoint of its involvement, actual or potential, in every lawsuit. Moreover, it is the privilege in which lawyers as a class are most directly interested and over which they have the greatest degree of control. It is the privilege which is most directly a part of the litigation process in every instance. Therefore, in any case for the examination of the place of the privileges in the law of today, this privilege would have the claim to be first evaluated.



INCREASE COMPLIANCE WITH THE LAW

ATTORNEY-CLIENT PRIVILEGE COULD FACILITIE FURTHER COMPLIANCE WITH THE

LAW Daniel, Pope, "Dirty Laundry." Defense Counsel Journal, Vol. 66 No. 1, January 1999, p 137 Despite the Duchess of Kingston's Case, the attorney-client privilege endured because, like a chameleon, new and better reasons for its existence were created. Beginning in the early 1700s-no doubt as a result of forward thinking by the Skadden, Arps and Simpson Thatchers of the day-a new rationale for the privilege began to take shape. Unlike the "oath and honor" rationale, which after all required the lawyer and not the client to stand in the dock and invoke the privilege, a messy procedure all the way around, the new theory reasoned that an attorney could provide sound legal advice only if the client could be completely candid. The client could be completely candid only if the conversation was privileged. Best of all, this new theory required the client to invoke the privilege because it was the client's fear of disclosure that was at stake. While the two theories battled it out in the 1700s, by the 1800s the latter theory was dominant. In order to promote freedom of expression and complete honesty with one's attorney, confidential communications had to be kept confidential. Public policy concerns were answered because by promoting complete freedom of expression, the privilege would foster voluntary compliance with the law and facilitate the effective administration of justice. Of course, there were no behavioral studies to support these reasons, but as Walter Cronkite used to say, "That's the way it is.



ADVERSARIAL VERSUS INQUISITORIAL MODEL OF JUSTICE

THE ADVERSARIAL MODEL OF CRIMINAL JUSTICE TREATS BOTH PARTIES AS EQUALS

AND SEEKS TRUTH THROUGH BOTH SIDES PLEADING THEIR RESPECTIVE CASES TO A

NEUTRAL TRIER OF FACT. Geraldine Szott Moohr [Professor of Law, University of Houston Law Center], “Prosecutorial Power In An Adversarial System: Lessons From Current White Collar Cases,” Buffalo Criminal Law Review 8.1 (2004): 165-220. The adversarial and inquisitorial models differ in their approaches to ascertaining the truth, largely as a result of their respective origins. The adversarial system began as common law judges resolved accusations made by one individual against another.99 Reflecting the accusatory genesis, judges treated the parties as equals, and allowed the adversaries to make their cases to independent decision makers, jurors, who decided whether the accusations were true.100 In an ideal adversarial system, the trial is the centerpiece of a broader process. Truth in the adversarial system is a by-product of a competitive process in which the parties put forward evidence and deflect the evidence of the other



IN CONTRAST THE INQUISITORIAL SYSTEM, THE ADVERSARIAL SYSTEM FOCUSES ON

PROCEDURAL FAIRNESS

Felicity Nagorcka, Michael Stanton, and Michael Wilson, “Stranded Between Partisanship and the Truth? A comparative Analysis of Legal Ethics in the Adversarial and Inquisitorial Systems of Justice,” 29 Melb. U. L. Rev. 448 (2005) Nevertheless, stark contrasts between adversarial and inquisitorial systems are apt to mislead. Mirjan Damagka states that, '[w]hen the comparatist turns his view from the Continent to the English speaking world, he encounters contrasts so striking that the great diversity existing within each legal culture pales in significance.' 27 Whilst much can be learnt from the differences between the systems, and the contrasting ethical pressures such systems place upon legal practitioners, the 'clash of systems' should not be overstated. As Mason observes, there is a degree of 'commonality and convergence' between the two systems and

[i]t is a mistake to regard the two systems as static ... Today the European system ... places more emphasis on procedural fairness ... The adversarial system, by moving to case management, begins to resemble the European one in expecting the judge to exercise more control over the litigation. Nevertheless, the defining criterion that distinguishes the two systems is the greater emphasis on procedural fairness which is characteristic of the adversarial system. However, whether we should continue to place that greater emphasis on procedural fairness is a major question.28



THE INQUISITORIAL SYSTEM EMPHASIZES THE VALUE OF A CONVICTION TO THE

COMMUNITY WHERE THE ADVERSARIAL SYSTEM EMPHASIZES THE RIGHTS AND

DIGNITY OF THE ACCUSED

Felicity Nagorcka, Michael Stanton, and Michael Wilson, “Stranded Between Partisanship and the Truth? A comparative Analysis of Legal Ethics in the Adversarial and Inquisitorial Systems of Justice,” 29 Melb. U. L. Rev. 448 (2005) It is often asserted that the inquisitorial process is dedicated to the discovery of the truth - unlike its adversarial equivalent, which is described as a 'game' in which parties deliberately obscure the truth for tactical forensic advantage. 96 We suggest, however, that at some level both criminal justice systems are designed to uncover the truth - that is, they are both designed to reach the most accurate conclusion possible about the circumstances of the alleged offence. A more meaningful distinction between the systems is perhaps that the inquisitorial process places a higher value on the discovery of truth, whereas the adversarial process is only prepared to discover truth within strict evidential and procedural boundaries. Moreover, the inquisitorial system places the search for truth in the hands of an impartial investigator, whose duty it is to objectively discover facts. The adversarial system trusts the parties to properly and honestly present their side of the argument, and expects that the truth will emerge from robust presentation of each side's case. In the case of the former system, the community gain through an accurate conviction of the guilty is paramount. However, in the case of the latter, this community interest is subservient to the insistence that such convictions must not be gained at the expense of individual liberties and dignity. Many rules of procedure which we have explored above bring into focus the inquisitorial system's favouring of truth over protection of the individual. For example, as explained above, an accused in the French system has quite limited access to a lawyer during any period of police detention, and no right to be accompanied by a lawyer whilst being interrogated during that detention. Lawyers are regarded in this context as obstacles to the discovery of the truth, and so are excluded very substantially from the investigation process - to which they only gained any access at all in 1897.97 However, it should be noted that the diminished role of defence lawyers during the investigation is not consistent throughout civil law systems. In Spain, for example, the accused has the right to have a lawyer present during a police interview.98



CORPORATE ACP

HOW CORPORATIONS CLAIM PRIVILEGE DIFFERS Andrew R Nash. “In-house but Out in the Cold: A Comparison of the Attorney−Client Privilege in the United States and European Union.” St. Mary’s Law Journal (2012) While the requirements of the attorney−client privilege are relatively straight forward,22 application of the privilege to corporate clients remains a more complex question. As early as 1915, the Supreme Court mused that the privilege would apply when the client was a corporation.23 The Court acknowledged, but did not explicitly hold, that Congress would not have implied that a corporate discovery statute applied to all communications and documents without openly declaring that intent.24 Courts accepted this general presumption25 and subsequently struggled to find an appropriate test for the applicability of the attorney−client privilege to corporations.26



CORPORATE ATTORNEY-CLIENT PRIVILEGE DEFAULTS TO COMMON LAW

Andrew R Nash. “In-house but Out in the Cold: A Comparison of the Attorney−Client Privilege in the United States and European Union.” St. Mary’s Law Journal (2012) While the result from Upjohn may not have been the anticipated panacea to all corporate attorney−client privilege woes, the holding was consistent with the traditional American views on the assertion of privileges, which, at least on a federal level, are not codified.57 The Federal Rule of Evidence governing the assertion of privileges, Rule 501, simply defaults to judicial interpretation of the common law.58 Thus, the safest way to not overstep the common law and rational interpretation bounds of Rule 501 may have been to avoid the adoption of a bright-line test. In fact, the reasoning in Upjohn fully embraces the common law tradition of Rule 501 by speaking not of a process for applying the privilege, but of a purpose for why the privilege should be asserted.59 According to the Supreme Court, the purpose of the attorney−client privilege “is to encourage full and frank communication . . . and thereby promote broader public interests in the observance of law and administration of justice.”60 This purpose strikes a balance between the availability of communications to be used as evidence and the need to promote an environment where clients may present their issues to attorneys without fear of subjecting themselves to criminal or civil liability.61 To date, Upjohn continues to be the leading United States precedent concerning the attorney−client privilege.62



ATTORNEY-CLIENT PRIVILEGE IS KEY FOR BUSINESSES TO MAKE GOOD DECISIONS

Gretchen Elizabeth Eoff, “Losing The Battle In The War On Attorney-Client Privilege Through Selective Waiver: Viewing The Selective Waiver Quagmire Through The Lens Of The Tenth Circuit’s Opinion In In Re Qwest Communications International.” Denver University Law Review (2008) The circuit court majority rejecting selective waiver of attorney-client privilege ignore the harsh reality currently facing corporations. In the course of a governmental investigation, companies accused of wrongdoing, or who engage in voluntary self-evaluation or self-reporting, are often forced to selectively waive attorney-client privilege in order to be judged as “cooperating” with federal prosecutors of government agencies under current governmental policies.8 The result is the erosion of the attorney-client privilege having a wholly negative impact: executives who would otherwise consult with corporate counsel about sensitive issues become embroiled in confusion about whether the attorney-client privilege will apply to their conversations thereby chilling communications; lawyers investigating allegations of wrongdoing become concerned about how their honest attempts to unearth and correct serious problems may be used against the company’s interests in the future; and employees who lack sophistication may be left without rights normally guaranteed to any other person whose actions are under scrutiny as a result of a government investigation.9



DOJ CANNOT COERCE EMPLOYEES TO GET AROUND ACP DURING EVIDENCE

DISCOVERY

Andrew R Nash. “In-house but Out in the Cold: A Comparison of the Attorney−Client Privilege in the United States and European Union.” St. Mary’s Law Journal (2012) That is not to say that the attorney−client privilege has not been subject to critique and attack, particularly in the corporate setting.63 Perhaps the most invasive attacks were the guidelines issued by the United States Department of Justice in a 1999 memorandum captioned “Bringing Criminal Charges Against Corporations,”64 later supplanted in 2003 by another memorandum titled “Principles of Federal Prosecution of Business Organizations.”65 These memoranda sought to encourage voluntary waivers of the attorney−client privilege by corporations in exchange for more lenient treatment by prosecutors when considering the possibility of indicting the corporation.66 This coercive ultimatum went largely unchecked until United States v. Stein. 67 In Stein, the government allegedly urged KPMG to encourage its employees to participate in pre-indictment interviews with the government or risk losing KPMG paying for their legal fees.68 The Department of Justice’s coercion techniques were judicially criticized as effectively chilling attorney−client communications within the corporate setting by forcing businesses to gamble a potentially more severe indictment on the risk of waiving the attorney−client privilege.69 On appeal, the Second Circuit held that certain statements by corporate employees had been deliberately coerced by the government, and thus the statements were stricken from evidence.70 As a result of judicial opinions and legislative action,71 the Department of Justice has tempered its tactics and guidelines.72 No longer may investigators or prosecutors request waivers of the attorney−client privilege or demand core work product.73 Instead, the focus has shifted to the disclosure of relevant facts while providing appropriate channels for corporate counsel to raise concerns about any potential abuse of investigatory power.74 Thus, despite some attacks, the attorney−client privilege remains healthy and alive in the United States, both on state and federal levels for individual and corporate clients



THE DOJ HAS INCREASED IT'S INVESTIGATORY POWER TO TRY TO OVERRIDE ACP

Gretchen Elizabeth Eoff, “Losing The Battle In The War On Attorney-Client Privilege Through Selective Waiver: Viewing The Selective Waiver Quagmire Through The Lens Of The Tenth Circuit’s Opinion In In Re Qwest Communications International.” Denver University Law Review (2008) When Attorney General Robert Jackson addressed a meeting of all United States Attorneys at the Justice Department in Washington in April 1940, he noted that “the prosecutor has more control over life, liberty, and reputation than any other person in America . . . [prosecutorial] discretion is tremendous.”40 Corporate criminal liability for illegal conduct has been black letter law since 1909 when the United States Supreme Court first held that a corporation, which profits by illegal transaction(s), can be held criminally liable for that conduct.41 The DOJ had no uniform policy on corporate prosecution until June 1999, when then-Deputy Attorney General Eric Holder issued a policy memorandum titled “Federal Prosecution of Corporations” (hereinafter “Holder Memorandum”).42 The Holder Memorandum guided federal prosecutors in determining whether to file criminal charges against a corporation (rather than potentially culpable individual employees).43 Specifically, the memorandum identified eight factors to be considered by prosecutors in making a corporate charging determination including “the corporation's timely and voluntary disclosure of wrongdoing and its willingness to cooperate in the investigation of its agents including, if necessary, the waiver of the corporate attorney-client and work product privileges.”44 The Holder Memorandum emphasized the “great benefits” that result from the “vigorous enforcement of the criminal laws against corporate wrongdoers . . . particularly in the area of white collar crime.”45 These benefits include “enabling the government to address and be a force for positive change of corporate culture, alter corporate behavior, and prevent, discover and punish white collar crime.”46 The collapse of Enron in 2001 commenced a series of high-profile corporate scandals involving Adelphia, WorldCom, and HealthSouth.47 Fraud and corruption at the highest levels of corporate america sparked a “crisis of confidence in the markets and the economy.”48 In response, President George W. Bush introduced the Corporate Fraud Initiative, which included the enactment of the Sarbanes-Oxley Act of 2002, and the creation of the President’s Corporate Fraud Task Force in July 2002.49 In the shadows of Enron, in January 2003, DOJ officials completed a review of the Holder Memorandum, and then-Deputy Attorney General Larry Thompson replaced it with a newer policy document titled “Principles of Federal Prosecution of Business Organizations”50 (hereinafter the “Thompson Memorandum”).51 The Thompson Memorandum had a profound effect on the Department of Justice’s enforcement efforts in a wide range of matters and the ways in which companies respond to government investigations of misconduct.52 It set out two primary objectives: (1) to increase the authenticity of corporate cooperation with investigations; and (2) increase the focus on corporate governance and compliance programs.53 The Holder Memorandum emphasized the “great benefits” that result from the “vigorous enforcement of the criminal laws against corporate wrongdoers . . . particularly in the area of white collar crime.”54 These purported benefits include “enabling the government to address and be a force for positive change of corporate culture, alter corporate behavior, and prevent, discover and punish white collar crime.”55 While prosecutions of corporations were once the exception rather than the rule, the pursuit of corporate convictions is now a primary goal of the DOJ.56 Federal prosecutors are no longer content to build criminal cases by relying on “powerful tools of grants of immunity and grand jury subpoenas for non-privileged evidence.”57 Instead, federal prosecutors insist that corporations turn over “privileged communications, attorney work product, and incriminating statements from corporate employees as a condition of favorable treatment in the exercise of the prosecutor’s considerable discretion.”58 The government views a corporation’s failure to immediately disclose privileged information as a “clandestine effort to hide the truth.”59 The “growing focus on



corporate culpability in our criminal justice system,” has forced corporations to waive privileges when turning over materials to the government in the hope of cooperating with government investigations.60



TO AVOID FUTURE INVESTIGATION BY THE DOJ, MANY CORPORATE ATTORNEY'S ARE

ENTERING SELECTIVE WAIVERS

Gretchen Elizabeth Eoff, “Losing The Battle In The War On Attorney-Client Privilege Through Selective Waiver: Viewing The Selective Waiver Quagmire Through The Lens Of The Tenth Circuit’s Opinion In In Re Qwest Communications International.” Denver University Law Review (2008) To accommodate the government's interest in obtaining a corporation’s cooperation and desire to maintain the confidentiality of its disclosure, some courts have applied the doctrine of limited or selective waiver.76 In an attempt to avoid problems stemming from sharing confidential materials with federal agencies, “corporations are increasingly entering into ‘selective waiver’ agreements with the government prior to any disclosure.”77 These agreements “purport to maintain attorney-client privilege and work product protection over the results of internal corporate investigations as to private third party litigants.”78 The United States Court of Appeals for the Eighth Circuit created the limited or selective waiver doctrine in Diversified Industries v. Meredith. 79 The doctrine is based on the significant public policy concern in favor of encouraging voluntary cooperation with the government.80 The growing trend of selective waiver in light of current DOJ policies was confirmed by a recent survey of over 1,200 in-house and outside corporate counsel that was completed by the Association of Corporate Counsel, the National Association of Criminal Defense Lawyers, and the American Bar Association in March 2006.81 According to the survey, almost 75% of corporate counsel respondents believe that a “culture of waiver” has evolved in which governmental agencies believe that it is reasonable and appropriate to expect a company under investigation to “broadly waive attorney-client or work product protections.”82 In addition, 52% of in-house respondents, and 59% of outside respondents, indicated a marked increase in recent years in waiver requests as a condition of investigation cooperation.83 Corporate counsel also indicate that when prosecutors give a reason for requesting privilege waiver, the Thompson/Holder/McCallum Memoranda were among the reasons most frequently cited.84 Former Solicitor General Theodore B. Olson recently pointed out the severe consequences corporations face if they fail to selectively waive attorney-client privilege and appear uncooperative in a corporate investigation.85 Corporate consequences of prosecution include: "immeasurable immediate damage to share price, and thus to the value of the stockholders’ collective investment; the company’s ability to raise capital; credit rating; reputational injury to the brand and product line; inability to transact certain business; issues of disbarment; serious injury to the officers’ reputations; pressure on Boards of Directors to change management, wholesale housecleaning before there has been any determination of guilt of those individuals under Government suspicion; immense legal fees; damage to the company’s credibility with regulators.86"



SARBANES-OXLEY WILL EXPOSE ATTORNEY’S TO LITIGATION FOR FAILURE TO

DISCLOSE AND UNDERMINE ACP

Martin D. Carrigan and Theodore C. Alex, “The Sarbanes-Oxley Act Of 2002 And Its Impact On The Attorney-Client Privilege And Legal Ethics,” Journal of Business & Economics Research, Vol. 1, No. 12 (2011) The opening of the door to lawyer disclosure and the lack of definitiveness in the rule may expose attorneys to individual liability for failure to disclose. A “substantial injury” to another‟s financial or property interest will be the basis for an individual to claim that a failure to disclose harmed them. Each case will be litigated against a lawyer for breach of her ethical obligation of prior disclosure. Each case will claim that the lawyer was “reasonably certain” of harm to another‟s interest. Each case will claim that the individual suffered a “substantial injury” based on their individual financial or property situation. This rule, passed in a vague and broad manner in an attempt to convince the public that attorneys were concerned about ethical lapses at Enron, WorldCom, and Arthur Andersen, is a first step at an erosion of the attorney-client relationship in the United States. It will expose attorneys to claims of unethical or unprofessional conduct by disgruntled investors who lost money investing in publicly traded stocks, bonds, and derivitatives.



JOINT-CLIENT SITUATIONS

ATTORNEY-CLIENT PRIVILEGE SHOULD EXTEND TO JOINT CLIENT SITUATIONS. Grace M. Giesel, [James R. Merritt Professor and Distinguished University Teaching Professor, University of Louisville, Louis D. Brandeis School of Law.] "End the Experiment: The Attorney-Client Privilege Should Not Protect Communications in the Allied Lawyer Setting". Marquette Law Review, Vol. 95, 2011-2012. This rationale justifies applying the privilege to joint client situations. A communication between an attorney and one or more of the attorney’s joint clients is a communication between attorney and client. Protecting such communications from disclosure with the attorney–client privilege, theoretically, encourages full disclosure by the client group to the attorney.19 Applying the attorney–client privilege in the joint client situation thus furthers the ultimate goal of superior legal advice. Courts have accepted application of the privilege in the joint client setting throughout the life of the modern attorney–client privilege;20 recognition of the privilege in this setting does not expand traditional doctrine. Indeed, the nature of joint representation and the ethical constraints on any attorney handling a joint representation make application of the privilege relatively straightforward.21



NARROW INTERPRETATION

ACP IS NARROWLY INTERPRETED WITH MULTIPLE EXCEPTIONS. Katherine Ruzenski, [J.D. Candidate, St. John's University, June 2005], "Balancing Fundamental Civil Liberties and the Need for Increased Homeland Security: The Attorney Client Privilege After September 11th", St. John's Journal of Legal Commentary, Vol. 19, 2005. B. Narrow Interpretation The privilege generally provides absolute protection of attorney-client communications, unless waived by the client.29 However, it is also important to note that the privilege is interpreted narrowly because it inhibits the truth seeking process.30 In certain instances, the privilege must yield to more prominent concerns. Such instances arise, for example, in criminal trials, when a criminal defendant's constitutional rights are at stake, or when the need for the probative evidence protected by the privilege outweighs the need to invoke the attorney-client privilege protection.31 The crime-fraud exception is another example which illustrates the narrow interpretation of the attorney-client privilege.32 When an attorney's services are being used to facilitate and further criminal or fraudulent activity, attorneys have permission to break the confidences of their client to prevent that activity from occurring.33 In cases such as these, a judge will determine whether the government has made a prima facie case as to whether the attorney facilitating the crime.34 If the judge finds that the client is trying to use the lawyer's services to commit a criminal or fraudulent act, the court will pierce those attorney- client communications.35 The privilege will therefore not apply and the communications will not be protected. The main goal of the privilege is to assure that a client's communications with his or her attorney are protected, and the privilege should only be asserted for this purpose.36 By applying the privilege broadly, it significantly decreases the amount of information disclosed in discovery.37 This may mislead or confuse the jury, and effectively hinder their truth-seeking function.38 Therefore, the attorney-client privilege is interpreted narrowly and only applied to promote full disclosure between the client and the attorney, ensuring that the client receive the best available legal advice.39



OLD JUSTIFICATION

THE ORIGINAL JUSTIFICATION FOR ACP WAS BASED ON PROTECTION AGAINST

PERJURY. Steven Bradford, [Assistant Professor of Law, University of Nebraska College of Law], "Conflict of Laws and the Attorney-Client Privilege: A Territorial Solution", University of Pittsburgh Law Review 52 (1990-1991). The policy justifications for the privilege have evolved over time. The Roman rule was designed to protect against perjury. The theory was that an advocate had a strong motive to misstate the facts in favor of his client; the advocate was not allowed to testify because his testimony could not be believed.29 The English attorney-client privilege was based originally on the oath and honor of attorneys as "gentlemen" not to betray confidences reposed in them."0 The attorney could not testify not because of any practical risks, but because it was his duty not to disclose his client's secrets.



UTILITARIAN ARGUMENT

THE UTILITARIAN JUSTIFICATION FOR ACP HAS GONE VIRTUALLY UNCHALLENGED. Steven Bradford, [Assistant Professor of Law, University of Nebraska College of Law], "Conflict of Laws and the Attorney-Client Privilege: A Territorial Solution", University of Pittsburgh Law Review 52 (1990-1991). By the late eighteenth century, the original English justification was repudiated and replaced by a new, more utilitarian argument, which survives today.31 The modern justification focuses on the needs of the adversary system if it is to produce just results. The attorney-client privilege is considered indispensable to the lawyer's function as advocate on the theory that the advocate can adequately prepare a case only if the client is free to disclose everything, bad as well as good. The privilege is also considered necessary to the lawyer's function as confidential counselor in law on the similar theory that the legal counselor can properly advise the client what to do only if the client is free to make full disclosure.3 2 This justification, which has been "virtually unchallenged" in modern times,3 rests on three assumptions. First, it assumes that a client will communicate with counsel more fully and truthfully if attorney-client communications are protected from disclosure. Second, it assumes that an attorney can advise her client more effectively if the client is more forthcoming. Finally, it assumes that the value of the resulting improved legal representation exceeds the cost of undisclosed evidence.116



RESILIENT

THE ACP HAS BEEN A RESILIENT CORNERSTONE OF AMERICAN LEGAL

JURISPRUDENCE. Marjorie Cohn, [Professor, Thomas Jefferson School of Law, San Diego, executive vice president of National Lawyers Guild], "The Evisceration of the Attorney-Client Privilege in the Wake of September 11, 2001", Fordham Law Review, Volume 71, Issue 4. The attorney-client confidence has remained a fixed part of American jurisprudence.26 In the two hundred years since the privilege was formally recognized in American law, the only serious question concerning its application has arisen just recently in the context of how to delimit the scope of the privilege of a corporate client. The issue first arose in a federal district court opinion that held the privilege applied only to natural persons,27 but the decision was eventually reversed after much negative commentary.28 While the privilege was recognized as applicable to corporate clients, its scope was delineated somewhat by the Supreme Court in 1981.29 In Upjohn Co. v. United States,, the Court rejected the so-called "control group" definition of the scope of the corporate privilege utilized in Philadelphia v. Westinghouse Electric Corp.,3 " which focused on the status of the persons communicating with the attorney and favored a definition focused on the nature of the communication.3 Under the Upjohn formulation, a corporate communication comes within the privilege if it is communicated with the express purpose of securing legal advice for the corporation, relates to the duties of the communicating corporate employee, and is treated within the corporation itself as confidential.32 Aside from the corporate client debate, the privilege has remained a fairly stable and unchallenged concept in American law. In fact, its philosophical foundation has acquired some additional support in recent times. To the "consultation" rationale recognized since the 1700s, a new principle based on the right to privacy has been added, though it has not been generally recognized by the courts.33 Currently the existence of the privilege seems to rest in part on the ''consultation" rationale and in part on its role in the adversarial structure of the legal system.34 That is, the attorney-client privilege serves to uphold the strong fiduciary relationship between lawyer and client, a relationship inconsistent with a system which would allow the lawyer to disclose confidential communications. It is thus intimately tied to the contemporary view of the lawyer's professional responsibilities to her client. This brings the rationale for the privilege in the common law full circle, as once again it is seen as at least partially grounded in the "honor" and ethics of the individual practitioner. Because the privilege is now firmly rooted in this professional ethos, it would be difficult to alter or eliminate the privilege without making corresponding changes to legal ethics.3 " Moreover, it is now well-settled that the purpose of the attorneyclient privilege is "to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice. 36 The attorney-client privilege has remained a staple of the common law system from the earliest modern times. Its justification has shifted over time, even returning to its origins, but each time the privilege has come under attack new reasoning has quickly arisen to keep it intact. Indeed, the attorney-client privilege has survived historical scrutiny because a confidentiality shield is a necessary tool for effective operation of the American jurisprudential system. The general contours of the attorney-client privilege, as stated by Wigmore, are as follows: Legal advice of any type is sought from a professional legal adviser acting in that capacity; the communication relates to that purpose; it is made in confidence by the client who claims permanent protection of the communication; and the client does not waive the privilege. 37 The client is the holder of the privilege, and the attorney has an ethical obligation to maintain the secrecy of the communication.38



SIXTH AMENDMENT RIGHTS

SIXTH AMENDMENT PROTECTIONS JUSTIFY ATTORNEY-CLIENT PRIVILEGE. Marjorie Cohn, [Professor, Thomas Jefferson School of Law, San Diego, executive vice president of National Lawyers Guild], "The Evisceration of the Attorney-Client Privilege in the Wake of September 11, 2001", Fordham Law Review, Volume 71, Issue 4. The accused in a criminal case has the right to the effective assistance of counsel for his defense.44 This guarantee extends to investigation and preparation of a defense, as well as to the trial itself.45 The right to counsel includes the right to communicate with one's attorney.46 Indeed, the fairness of a trial can be compromised if a defendant's right to effectively communicate with counsel is "inadequately respected during pre-trial confinement. '47 The Sixth Amendment's guarantee of effective assistance of counsel requires "[f]ree two-way communication between client and attorney. ' 4 In Weatherford v. Bursey, the Supreme Court wrote: "[T]he Sixth Amendment's assistance-of-counsel guarantee can be meaningfully implemented only if a criminal defendant knows that his communications with his attorney are private and that his lawful preparations for trial are secure against intrusion by the government, his adversary in the criminal proceeding. 49 Like the attorney-client privilege, the right to counsel protects the rights to privacy and fairness." Effective assistance of counsel requires confidential and unfettered communication between the accused and his attorney at every critical stage5 of a criminal proceeding. Some scholars have argued that the attorney-client privilege is protected by the Sixth Amendment.52 When his attorneyclient privilege is wrongfully violated, a defendant has been denied his Sixth Amendment right to the effective assistance of counsel.



GRAND JURY INVESTIGATIONS

IF ACP IS WRONGLY BREACHED IN A GRAND JURY HEARING, THERE IS NO

APPROPRIATE REMEDY UNDER THE FEDERAL RULES OF EVIDENCE Cary Bricker [Lecturer in Law, University of the Pacific], “Revisiting The Crime-Fraud Exception To The Attorney-Client Privilege: A Proposal To Remedy The Disparity In Protections For Civil And Criminal Privilege Holders,” Temple Law Review Vol. 82 (2009). If a client-target is indicted by an impaneled grand jury, based in part on crime-fraud evidence, and the subpoena served on counsel to testify to privileged communication is later found to be invalid or improperly issued, “there is nothing a court can do to withdraw all knowledge or information” from those who have heard it, including the prosecution.101 Most courts that have addressed the subject have refused to issue an injunction against a “future use of [an] [a]ttorney’s testimony” consisting of confidential communications with the client, again, even where the court finds that the subpoena compelling that testimony was issued in error.102 This leaves room for the anomalous situation where a client-target’s attorney-client privilege was abrogated in contravention of his rights, but he cannot foreclose the possibility that the prosecution will be permitted to use his oral communications with his lawyer in a future proceeding against him.103 Nor is dismissing the grand jury that has heard the tainted evidence “an appropriate remedy” in circuits where the government is not precluded from using the same testimony before a second grand jury.104



AT CRIME FRAUD

THE ACP HAS AN EXCEPTION FOR CRIME FRAUD. Marjorie Cohn, [Professor, Thomas Jefferson School of Law, San Diego, executive vice president of National Lawyers Guild], "The Evisceration of the Attorney-Client Privilege in the Wake of September 11, 2001", Fordham Law Review, Volume 71, Issue 4. An attorney-client communication can lose its privileged character when it is made for purposes of committing a crime or fraud.39 In order to invoke the crime-fraud exception, the government must make a prima facie case to a judge4 " that (1) a client consulted a lawyer for the purpose, which is later accomplished, of obtaining assistance to engage in a crime or fraud or aiding a third person to do so; or (2) regardless of the client's purpose at the time of consultation, the client used the lawyer's advice or other services to engage in or assist a crime or fraud.41 The crime-fraud exception obviates the necessity for the newly amended Bureau of Prisons rule permitting the monitoring of attorney-client communications.42 Piercing the attorney-client privilege is reserved to the courts, not prosecutors or prison officials.43



AT ELECTRONIC DISCLOSURE

THE CLAW-BACK CLAUSE PREVENTS INADVERTENT WAIVING OF THE ACP. Adjoa Linzy, [Duke University School of Law, J.D. 2009; University of North Carolina at Chapel HIll, B.A. Political Science and International Studies. Associate at DLA Piper's International Trade Practice Group.] "The Attorney-Client Privilege And Discovery of Electronically-Stored Information", Duke Law & Technology Review, No. 011, 2011. Claw-Back Clause or Quick Peek Agreements39 Attorneys should enter into claw-back agreements prior to the commencement of e-discovery. Claw-back agreements are formal agreements that prevent the attorney-client privilege from being waived by an inadvertent disclosure of privileged information.80 Rather the receiving party must return the privileged material to the responding party.40 Quick peek agreements allow attorneys to look at each party’s entire data before production. Attorneys then designate items that are responsive to the discovery request and items that are privileged.81 Attorneys should ensure that such agreements address electronic documents in general and metadata specifically. Claw-back clauses and quick peek agreements might not necessarily guarantee protection against claims of waiver. For example, opposing counsel may renege on a claw-back agreement and argue that privilege is waived because opposing counsel has already seen the documents, and thus they would no longer uphold any claw-back provisions.82 Attorneys should enter these agreements knowing that while most courts would uphold them, some might make an exception when counsel has already seen the alleged confidential information.42 Also, some legal experts have said that claw-back agreements violate the fundamental premise of an attorney’s duty to represent clients zealously.83 By voluntarily entering into such agreements, attorneys are tying their hands, so to speak. The prudent measure may be to seek clients’ consent before entering into such agreements.



DISCOVERY HEARINGS PREVENT INADVERTENT WAIVING OF THE ACP.

Adjoa Linzy, [Duke University School of Law, J.D. 2009; University of North Carolina at Chapel HIll, B.A. Political Science and International Studies. Associate at DLA Piper's International Trade Practice Group.] "The Attorney-Client Privilege And Discovery of Electronically-Stored Information", Duke Law & Technology Review, No. 011, 2011. Discovery Hearing or Pre-Trial Conference43 Federal Rule of Civil Procedure 26(f) requires parties to confer early in litigation to attempt to develop a discovery plan.84Attorneys should take advantage of such pre-trial conferences to address potential disputes over electronic discovery.44 Some commentators have opined that attorneys should voluntarily submit to a pre-trial conference to determine the disclosure of ESI, the manner of disclosure, and a specific schedule with a timeline.85 Unlike claw-back clauses, in which attorneys voluntarily enter into agreements, pre-trial conferences are more formal and take place before a judge. A judge’s involvement in the pre-trial conference may provide legitimacy to the agreement should a dispute arise concerning its validity. Prior to attending a pre-trial conference, attorneys should consult with their clients’ technology departments regarding data preservation.86 In particular, attorneys should ask IT personnel how much time and resources are needed to retrieve data. Having this information available prepares attorneys to better discuss the issue of cost allocation when it arises during pre-trial conferences.46 Attorneys attending a pre-trial conference should also be prepared to discuss the manner of production. For example, the parties might discuss whether the data would be copied to disks; the steps to take to ensure that ESI is not negligently destroyed;the procedures to be followed in the event ESI is inadvertently disclosed;the list of persons most knowledgeable about each party’s computer systems, cost allocation, and any other pertinent information that may affect the discovery response may be discussed. 8747 Lastly, attorneys should keep privilege logs documenting each privileged document and a brief description of each document. Keeping a privilege log allows attorneys to be prepared to address inadvertent disclosure of privileged information. Others have suggested counsel have documents ready for in camera inspection during a pre-trial conference.88 Either way, it is better to be prepared to discuss inadvertent disclosure early in the discovery process, rather than catching up later in the midst of trial.



THIRD-PARTY PROTECTIVE ORDERS PREVENT INADVERTENT WAIVING OF THE ACP.

Adjoa Linzy, [Duke University School of Law, J.D. 2009; University of North Carolina at Chapel HIll, B.A. Political Science and International Studies. Associate at DLA Piper's International Trade Practice Group.] "The Attorney-Client Privilege And Discovery of Electronically-Stored Information", Duke Law & Technology Review, No. 011, 2011. C. Third-Party Protective Orders48 As discussed above, attorneys may outsource data retrieval to ediscovery companies.89 It is possible that the staff may unintentionally include privileged information in the data sent to requesting counsel. The parties should therefore agree that attorney-client privilege is not waived when information is inadvertently disclosed by human error, especially when a third-party is conducting the review of ESI.



REMOVING METADATA PREVENTS INADVERTENT WAIVING OF THE ACP.

Adjoa Linzy, [Duke University School of Law, J.D. 2009; University of North Carolina at Chapel HIll, B.A. Political Science and International Studies. Associate at DLA Piper's International Trade Practice Group.] "The Attorney-Client Privilege And Discovery of Electronically-Stored Information", Duke Law & Technology Review, No. 011, 2011. D. Remove Metadata49 In a recent publication, the ABA recommended attorneys remove metadata before e-mailing files.90 Attorneys can also use a third-party tool such as Metadata Assistant to reduce accidental exposure. 91 Microsoft also offers a free “Remove Hidden Data” utility.92One way to remove metadata in Word is to go to the Office button, choose “Prepare” and then “Inspect Document” to check for metadata.93 All comments and edits in word documents should be deleted and avoid using the redlining function in word processing documents as much as possible.94 Attorneys should also delete comments and disable the undo/redo options in WordPerfect documents.9550 Attorneys should note that they are ethically prohibited from altering documents that have potential evidentiary value.96 They should check their respective ethical rules to ensure compliance with the rules governing removal of metadata.



ATTORNEY REVIEW PREVENTS INADVERTENT DISCLOSURE.

Adjoa Linzy, [Duke University School of Law, J.D. 2009; University of North Carolina at Chapel HIll, B.A. Political Science and International Studies. Associate at DLA Piper's International Trade Practice Group.] "The Attorney-Client Privilege And Discovery of Electronically-Stored Information", Duke Law & Technology Review, No. 011, 2011. E. Attorney Review51 The most effective way to prevent inadvertent disclosure is for attorneys to review all electronic documents before sending them to opposing counsel. This is an obvious recommendation, but so often attorneys do not review the documents because the data’s sheer size is intimidating. It is imperative that attorneys spend time and effort reviewing these documents before production. As stated earlier, one factor courts consider in determining waiver is the reasonableness of the precautions taken to prevent inadvertent disclosures.97 Whether the precautions taken were sufficient to prevent inadvertent disclosures depends on the time and effort expended by the attorneys. Thus, it is important that attorneys spend the time required to review the documents, no matter how tedious or uninteresting the process may be.



AT TERRORISM

ATTORNEY-CLIENT PRIVILEGE IS ESPECIALLY IMPORTANT IN THE CONTEXT OF THE

WAR ON TERROR. Marjorie Cohn, [Professor, Thomas Jefferson School of Law, San Diego, executive vice president of National Lawyers Guild], "The Evisceration of the Attorney-Client Privilege in the Wake of September 11, 2001", Fordham Law Review, Volume 71, Issue 4. Whether the rationale for the attorney-client privilege rests upon professional ethics, the right to privacy or the need to encourage clients to confide fully in their attorneys, the privilege is a crucial fixture of the American criminal justice system. Indeed, the Supreme Court recently ruled that the attorney-client privilege is so strong, it survives the death of the client. 3 Even a client who thinks she is guilty may have a legal defense, which becomes apparent only after full and frank disclosure of the facts to her attorney. The societal policy promoting the settlement of cases will be furthered by protecting the confidentiality of attorney-client communications. Moreover, weakening or abolishing the privilege would encourage lawyers to lie to protect their clients or risk contempt for a failure to betray their confidences. Attorney General John Ashcroft's consistent pattern of emasculating civil liberties in the period since September 11, 2001, is disturbing and dangerous to a democracy. His amended Bureau of Prisons regulation provides no judicial protection for privileged communications, and will fatally infect the attorney-client relationship. Ashcroft's security concerns are adequately addressed by FISA and the crime-fraud exception to the privilege, which must be ruled on by a judge. Likewise, Ashcroft's indictment of Lynne Stewart, based upon her alleged violation of special administrative measures she was forced to sign in order to communicate with her client, will have a chilling effect on attorneys who may otherwise represent people facing political crimes in this emotionally-charged historical period. In the words of Nancy Chang: "The issuance of the interim rule, combined with the cautionary tale to be found in the prosecution of Lynne Stewart, sends the clear message that attorneys who represent individuals charged with terrorist crimes now run the risk of landing in jail alongside their clients and having their client files seized by FBI agents."'40 It is essential that people feel safe and secure in these perilous times. But, as Supreme Court Justice Sandra Day O'Connor wrote in Vernonia v. Acton: "It cannot be too often stated that the greatest threats to our constitutional freedoms come in times of crisis."'41 The confidential relationship between attorney and client sits at the heart of our criminal justice system. It must be zealously guarded or we will find ourselves in the midst of a police state.



EXISTING MECHANISMS ALLOW FOR MONITORING THE ACP.

Marjorie Cohn, [Professor, Thomas Jefferson School of Law, San Diego, executive vice president of National Lawyers Guild], "The Evisceration of the Attorney-Client Privilege in the Wake of September 11, 2001", Fordham Law Review, Volume 71, Issue 4. The law in existence prior, and subsequent, to September 11, 2001, amply provides for judicially-sanctioned monitoring or disclosure of communications between clients and their attorneys where necessary to prevent criminal activity or where there is a threat to national security. When a judge determines that a communication is undertaken for the purpose of committing a crime or fraud, she can find an exception to the attorney-client privilege, and permit disclosure of the communication.8 ' If federal officials have probable cause to believe a detainee is utilizing communications with his lawyer for the furtherance of a criminal purpose, they can obtain a search warrant to intercept those communications. s2 They can also search an attorney's office if they have a search warrant supported by probable cause. 3 If prison officials have probable cause to believe an inmate is using legal mail for unlawful purposes or if security is threatened, they can obtain a search warrant to open and read the mail.' Title III of the Omnibus Crime Control and Safe Streets Act of 196885 allows the government to monitor attorney-client communications without prior notice to the targets of the surveillance, if it secures a warrant based on probable cause that an individual has, is or will commit an enumerated offense, and particular communications concerning that offense will be obtained thereby, provided normal investigative procedures have failed or are likely to fail or be overly dangerous, and when a number of other requirements are met. The wiretap order must be issued by a federal district or circuit court judge. 6 Title III, however, prohibits the use of intercepted privileged communications as evidence.



WE HAVE MECHANISMS TO OVERSEE SURVEILLANCE WHEN IT AFFECTS NATIONAL

SECURITY.

Marjorie Cohn, [Professor, Thomas Jefferson School of Law, San Diego, executive vice president of National Lawyers Guild], "The Evisceration of the Attorney-Client Privilege in the Wake of September 11, 2001", Fordham Law Review, Volume 71, Issue 4. Finally, there is a formal mechanism in place to oversee electronic surveillance when there is a threat to national security. The Foreign Surveillance Intelligence Act ("FISA")8 " was enacted in 1978, in response to the Nixon administration's abuses of national security wiretaps, which it used against its domestic opponents under the guise of conducting counterintelligence investigations. 9 FISA is something of a Title III for foreign intelligence wiretapping conducted in the United States."' The Act established the Foreign Intelligence Surveillance Court, which approves wiretaps in national security investigations .91 The FISA court, comprised of Article III judges designated by the Chief Justice of the United States, must find, among other things, that there is probable cause to believe that the target of the electronic surveillance is a foreign power or an agent of a foreign power92 and that each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power, "provided... that no United States person may be considered a foreign power or an agent of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States." The application must also contain a certification by a designated national security official that a significant purpose of the surveillance is to obtain foreign intelligence information; and the application must be approved by the Attorney General.93 As in Title III, FISA provides for the suppression of evidence, which is protected by the attorneyclient privilege.94 Ashcroft has presented no evidence to demonstrate that existing mechanisms such as Title III, FISA and the crime-fraud exception to the attorney-client privilege could not effectively meet his concerns about terrorism and violent crime. There is no justification for the elimination of judicial review and the weakening of the current probable cause standard for electronic surveillance. The ACLU has called the new regulation "a terrifying precedent" that "threatens to negate the keystone of our system of checks and balances, the right to a competent legal defense."95 Under the International Covenant on Civil and Political Rights,96 a major human rights treaty ratified by the United States, and therefore binding law under the Supremacy Clause of the Constitution," criminal defendants and incarcerated persons have the right to confidential communications with their lawyers.9 " On November 14, 2001, the Lawyers Committee for Human Rights condemned Ashcroft's new regulation.99



THERE ARE MULTIPLE PROBLEMS WITH POST-9/11 RESTRICTIONS ON ACP.

Katherine Ruzenski, [J.D. Candidate, St. John's University, June 2005], "Balancing Fundamental Civil Liberties and the Need for Increased Homeland Security: The Attorney Client Privilege After September 11th", St. John's Journal of Legal Commentary, Vol. 19, 2005. Civil libertarians have heavily criticized the procedure under the Bureau of Prisons regulation.63 First, they claim that the "privilege team," as set out in the regulation, is not defined.64 This leaves open the question of what attorneys or other officials are qualified to sit on the "privilege team," and who will have the responsibility to decide what information will be left confidential.65 The rule states that a "privilege team" will be "designated, consisting of individuals not involved in the underlying investigation."66 But the rule does not specify where the line will be drawn to establish a conflict of interest, disallowing an attorney to participate on the team. Critics believe this is an ultimate hazard that provides potential for misuse and abuse under the regulation.67 All this regulation does, in their minds, is to add another tool to the Department of Justice's belt, allowing them to overstep the boundaries of their prosecutorial role.68 Second, the civil libertarians complain that there is no judicial oversight and no meaningful standard to evaluate the opinions of the Attorney General or "privilege team" as to what should be confidential.69 Further, the Attorney General has the sole authority to determine whether there is a "reasonable suspicion" that certain communications with attorneys are being used to facilitate violence or terrorist activity.70 This standard is less than the "probable cause" standard set out in the Fourth Amendment to the United States Constitution.71 The purpose of the "probable cause" standard is to protect the individual's privacy interests.72 Because the Bureau of Prisons regulation uses the "reasonable suspicion" standard, it is highly questioned and criticized as circumventing legislative authority and interfering with the fundamental right of privacy.73 The ''reasonable suspicion" standard usually only applies to those situations where there is an imminent threat of harm to a civilian or officer, as in "stop and frisk" situations.74 However, critics differentiate the intrusion on an inmate's conversations with their attorney from the "on the spot" action, which requires the lesser standard of reasonable suspicion.75 As a result, this regulation is viewed as a vehicle that could lead to a violation of the Fourth Amendment, stemming from its reasonable suspicion standard.76 Third, the regulation was passed swiftly, as was the USA Patriot Act, and in the eyes of civil libertarians, this created a dangerous opportunity for the Department of Justice to use its powers destructively.77 The regulation was enacted unilaterally by the Attorney General without the usual protections of notice and public comment afforded by the Federal Administrative Procedures Act.78 It was posted in the Federal Register on October 31, 2001, only one day after it went into effect.79 Fourth, civil libertarians are also wary of the definition of "domestic terrorism" set out in the Section 802 of the USA Patriot Act as well as the definition of "acts of violence" set out in the regulation.80 In order for the Attorney General to determine whether or not to listen to the communications between an attorney and a client, he must first determine whether or not he has suspected that inmate of being involved in terrorism or acts of violence.81 Prior to this new definition of terrorism, there were three other defined types of terrorism already set forth in federal collection of foreign intelligence information was the 'sole or primary purpose' of the investigation"). law: international terrorism, terrorism transcending national borders, and federal terrorism.82 Now, a person can also be charged with domestic terrorism if: [W]ithin the U.S. they engage in activity that involves acts dangerous to human life that violate the laws of the United States or any State and appear to be intended: (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion, or (iii) to affect the conduct of a government by mass destruction, assassination or kidnapping.83 Civil libertarians claim that this new definition is unnecessary and it will subject everyday protestors to prosecution for terrorism.84 The General Accounting Office released a study in January 2003 that concluded that seventy-five percent of those convicted under the Patriot Act of "international terrorism" after September 11th, 2001, were actually dealing in more common non-terrorist crimes.85 Critics also question the broad definition of "acts of violence," leading them to the conclusion that all federal prisoners will be subject to this regulation.86 They claim that the expansive terms of "terrorism" and "acts of violence" will only increase the number of federal inmates to these constrictive regulations.87 Furthermore, if the Attorney General uses these definitions of "terrorism" and "acts



of violence" to utilize the Bureau of Prisons regulation, he will be able to listen in on conversations of those inmates and their attorneys who were simply guilty of a state crime, such as providing lodging to a protestor.88 In such a circumstance, the regulation would reach far beyond its scope, covering regular state criminal investigations.89 The American Bar Association and the National Association of Criminal Defense Lawyers also agree that the monitoring of attorney-client communication as set out in Ashcroft's regulation violates the privilege, and that it is a serious infringement on the Sixth Amendment right to counsel.90 The Sixth Amendment states, "[i]n all criminal prosecutions, the accused shall enjoy the right.., to have the Assistance of Counsel for his defense."91 The amendment recognizes the rights of the accused to speak confidentially with a lawyer.92 Under the confines of the new regulation, an accused will have a profound fear of being overheard, and he will be inhibited to speak freely with his attorney.93 This is coupled with the fact that many of the detainees must already deal with the language barrier between themselves and their attorney.94 It is also likely that they know little about the American legal system, including the role that their lawyer plays in the system. The American Bar Association ant the National Association of Criminal Defense Lawyers have commented on the chilling effect the regulation will have on attorney-client communications.95 They argue that the repercussions of the regulation will seriously restrict the effectiveness of counsel, thereby violating the Sixth Amendment of the Constitution.96



POST-9/11 MEASURES VIOLATE OUR RIGHT TO PRIVACY.

Katherine Ruzenski, [J.D. Candidate, St. John's University, June 2005], "Balancing Fundamental Civil Liberties and the Need for Increased Homeland Security: The Attorney Client Privilege After September 11th", St. John's Journal of Legal Commentary, Vol. 19, 2005. Most importantly, civil libertarians assert that the USA Patriot Act and the Bureau of Prisons regulation have infringed upon privacy, one of the most valued rights Americans enjoy.97 Because of this infringement, three states and two hundred cities have passed resolutions opposing the Patriot Act.98 Civil libertarians regard the Patriot Act and the Bureau of Prisons regulation as products of fear, and as such, have become the enemy of freedom.99 The Patriot Act is regarded as a metaphor for many violations of constitutional rights.100 Overall, civil libertarians view this change to the attorney-client privilege as against the purpose in promoting full and frank communications between attorney and client.101



AT ABOLITION OF ACP

ABOLISHING ATTORNEY-CLIENT PRIVILEGE WOULDN’T BENEFIT TRUTH-SEEKING AS

THERE ARE WAYS TO CIRCUMVENT ATTORNEYS BEING REQUIRED TO DISCLOSE Gardner, James, “A Re-Evaluation of the Attorney-Client Privilege (Part I)”, Villanova Law Review, Vol. 8, No. 3 (Spring 1963), pp. 321-322 Furthermore, assuming that the privilege were abolished, we cannot say that evidence would inevitably profit. That it would profit might be true in the case of the unwary, but are they not the ones least likely to falsify in any event About whom we should show some concern as a class to whom protection ought to be accorded? For the litigation-wise, there would be ways to avoid the disclosure of the facts of their case to counsel until they were in a position to understand something of the legal significance of such facts. For example, a way in which disclosure might be avoided (if the privilege did not exist) would be for the client to put to the attorney a hypothetical case. It is questionable if the attorney would be required to disclose the hypothetical case and the advice based thereon except under the most unusual circumstances. There are many variations of the possibilities here for obtaining sound legal advice without substantial risk of discovery of the actual facts known to the communicant or his purpose in having a conference with the lawyer." Thus, it is not uncommon for clients to call attorneys on the telephone, either anonymously or giving their names. The attorney might give the advice requested without inquiry; or if he learned the name of the party making the inquiry, he might immediately dismiss the matter from his mind and never recall it again. If he did recall it, he might not remember the name of the party calling or the details of the conversation or both. This is not at all unusual when the lawyer's mind is only momentarily diverted from the task at hand to one on the periphery of his consciousness. If the lawyer were later questioned about such, a situation, he would certainly have to give the consultant the benefit of any doubt on the point of memory. Moreover, such a device (as the casual telephone consultation) could lend itself to abuse as a standard of subterfuge by the weak and the unethical,' thus tending to discriminate against the lawyer with high ethical standards and to lower the moral tone of the profession generally. In addition to the casual or anonymous telephone consultation, wary and crafty individuals bent on litigation under any circumstances might well consult counsel initially through intermediaries, with the same or even greater effectiveness in maintaining the desired secrecy.