Planet Debate
Attorney Client Privilege
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Topic Wording .................................................................................................................... 4
**DEFINITIONS** ............................................................................................................ 5
"Attorney-Client Privilege" Legal Definitions ................................................................... 6
Privilege: Legal Protection of Confidentiality in Specific Relationships ........................... 7
Ethical Requirement of Attorney Confidentiality Distinct from Evidentiary Privilege ..... 8
**AFFIRMATIVE** .......................................................................................................... 9
Attorney-Client Privilege Conflicts with Truth-Seeking .................................................. 10
Attorney-Client Privilege Conflicts with Truth-Seeking- Adversarial System Conflicts
With Truth......................................................................................................................... 13
Attorney-Client Privilege Conflicts with Truth-Seeking: Only Needed for Lies and False
Defense ............................................................................................................................. 15
Attorney-Client Privilege Conflicts with Truth-Seeking- Conflicts with Attorney as
Officer of the Court ........................................................................................................... 16
Attorney-Client Privilege Conflicts with Truth-Seeking- AT: "Evidence Would Not Exist
Without the Privilege" ...................................................................................................... 17
AT: "Truth Seeking Frustrated By Other Protections and Privileges" ............................. 18
Truth Seeking Should Trump: Vital for Just Outcomes ................................................... 19
Truth Seeking Should Trump: Harms of the Attorney-Client Privilege Outweigh
Advantages ........................................................................................................................ 21
Truth Seeking Should Trump: Defendant's Right to Evidence Outweighs ...................... 22
Truth Seeking Should Trump: Vital for Morality ............................................................. 23
Truth Seeking Should Trump: Vital for Societal Survival ............................................... 24
Truth Seeking Should Trump: Public Trust in the Legal System ..................................... 25
Truth Seeking Should Trump: Truth Critical to Adversary System ................................. 27
Truth Seeking Should Trump: Privilege Should Not Survive Client's Death ................... 29
Truth Seeking Should Trump: Crime-Fraud Exception Confirms ................................... 30
AT: "Truth Seeking More Important to Justice System that Protection of Individual
Autonomy" ........................................................................................................................ 31
Should Eliminate Attorney-Client Privilege - Better for Justice ...................................... 32
Should Weigh Attorney-Client Privilege in Individual Cases .......................................... 33
Attorney-Client Privilege Not Essential to Constitutional Rights- Generally .................. 34
Attorney-Client Privilege Not Essential to Effective Defense ......................................... 35
Attorney-Client Privilege Not Essential to Constitutional Rights - Privacy..................... 36
Attorney-Client Privilege Not Essential to Constitutional Rights - Zealous
Advocacy/Adversarial System Bad .................................................................................. 37
Attorney-Client Privilege Not Essential to Adversary System ......................................... 38
Attorney-Client Privilege Not Essential to Autonomy ..................................................... 39
Attorney-Client Privilege Fails: Inconsistently Applied................................................... 40
Attorney-Client Privilege Fails: Does Not Deter Misconduct .......................................... 43
Attorney-Client Privilege Bad: Serves the Needs of the Powerful ................................... 44
Attorney-Client Privilege Bad: Serves the Needs of the Attorney ................................... 46
AT: "Attorney-Client Privilege Critical Aspect of Professional Ethics" .......................... 48
Attorney-Client Privilege Fails: Weak Protection for Adversarial System ...................... 49
Utilitarian Framework Fails to Justify Attorney-Client Privilege .................................... 50
Myth of Moral Justice: Attorney-Client Privilege Undermines Justice System ............... 52
Myth of Moral Justice Link: Putting Rules Above Truth-Seeking ................................... 53
Planet Debate
Attorney Client Privilege
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Myth of Moral Justice Link: Legal Discourse .................................................................. 55
Myth of Moral Justice: "Justice" System Does Not Focus on "Just" Outcomes .............. 56
Myth of Moral Justice: Moral Justice Distinct From Professional Ethics ........................ 57
Myth of Moral Justice: Moral Justice Distinct From Religion ......................................... 58
Attorney-Client Privilege Violates First Amendment ...................................................... 59
Shielding Exonerating/Exculpatory Evidence Immoral ................................................... 60
Should Put Truth Ahead of Privilege With Exculpatory Evidence .................................. 62
Attorney-Client Privilege Should Be Treated Like Other Privileges: Same Balancing ... 63
Attorney-Client Privilege Should Be Treated Like Other Privileges: Duty to Disclose
Threats to General Public.................................................................................................. 64
AT: "Exceptions Prevent Harm from Attorney Client Privilege" .................................... 65
**NEGATIVE** .............................................................................................................. 66
Truth-Seeking Not the Main Goal of the US Justice System ........................................... 67
Justice System Fails at Truth-Seeking .............................................................................. 68
Attorney-Client Privilege Does Not Conflict with Truth-Seeking: Turn-Increases
Information ....................................................................................................................... 70
Attorney-Client Privilege Does Not Conflict with Truth-Seeking: Evidence Would Not
67Be Available Without Privilege .................................................................................... 71
Attorney-Client Privilege Does Not Conflict with Truth-Seeking: Narrowly TailoredConfidentiality Requirement ............................................................................................. 72
Attorney-Client Privilege Does Not Conflict with Truth-Seeking: Courts Carefully Weigh
Costs/Benefits ................................................................................................................... 73
Attorney-Client Privilege Enhances Truth-Seeking ......................................................... 74
Privilege Fails to Increase Truth-Seeking ......................................................................... 75
Restricting Attorney-Client Privilege Doesn't Increase Truth Seeking: Other Privileges 76
Restricting Attorney-Client Privilege Doesn't Increase Truth Seeking: Alternate
Causalities ......................................................................................................................... 77
Due Process Protections Outweigh Any Harm to Truth Seeking From Attorney-Client
Privilege ............................................................................................................................ 80
Presumption Against Abrogating Privilege ...................................................................... 82
Utilitarianism Justifies Attorney-Client Privilege ............................................................ 83
Attorney-Client Privilege Grounded in Utilitarian and Non-Utilitarian Justifications ..... 84
Attorney-Client Privilege Key to Just and Moral System ................................................ 85
Attorney-Client Privilege Key to Justice .......................................................................... 86
Attorney-Client Privilege Increases Social Welfare Through Improved Respect for the
Law ................................................................................................................................... 88
Attorney-Client Privilege Key to Constitutional Due Process Protections ...................... 89
Attorney-Client Privilege Key to Sixth Amendment Protections ..................................... 91
Attorney-Client Privilege Key to Fifth Amendment Protections ..................................... 93
Attorney-Client Privilege Central Feature of Justice System ........................................... 94
Attorney-Client Privilege Central Feature of the Adversarial Justice System ................. 95
Attorney-Client Privilege Grounded in Various Moral Theories ..................................... 97
Attorney-Client Privilege Promotes Respect for Individual Autonomy ........................... 98
Attorney-Client Privilege Critical for Domestic Violence Victims ................................ 102
Attorney-Client Privilege Recognized in Many Countries ............................................. 103
Attorney-Client Privilege Serves Multiple Societal Interests ......................................... 104
Planet Debate
Attorney Client Privilege
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AT: "Attorney-Client Privilege Trumps Other Societal Interests" ................................. 105
AT: "Privilege Decreases Legitimacy/Public Respect for Courts" ................................. 106
AT: "Wrong to Separate What is Legal from What is Moral" ....................................... 107
AT: "Attorney Client Privilege Protects the Powerful" .................................................. 108
AT: "Attorneys are Agents of the Court" ....................................................................... 109
Should Not Exempt Exonerating Evidence From Attorney-Client Privilege ................. 110
Should Not Conform Attorney-Client to Same Standards as Dr./Patient Confidentiality
......................................................................................................................................... 111
Privilege Narrowly Constructed: Carefully Balanced .................................................... 112
Privilege Narrowly Constructed: Prevent Death or Bodily Harm .................................. 113
Privilege Narrowly Constructed: Crime-Fraud Exception ............................................. 114
Privilege Narrowly Constructed: Ethical Duty to Disclose Perjury ............................... 115
Privilege Narrowly Constructed: Confined to Actual Attorneys .................................... 116
Terrorism Answers: Public Interest in Preventing Terrorism Trumps Attorney-Client
Privilege .......................................................................................................................... 117
Case-By-Case Assessments Undermine Benefits from Privilege ................................... 118
Exceptions to Attorney-Client Privilege Snowball ......................................................... 119
Exceptions to Attorney-Client Privilege Undermine Effectiveness ............................... 120
Dr./Patient Confidentiality Spillover: Link - Rationale the Same .................................. 121
CP - Federalize Privilege: Solves Uncertainty................................................................ 122
Planet Debate
Attorney Client Privilege
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Topic Wording
2013 November/December Topic
Resolved: In the United States criminal justice system, truth-seeking ought to take
precedence over attorney-client privilege.
Planet Debate
Attorney Client Privilege
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**DEFINITIONS**
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Attorney Client Privilege
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"Attorney-Client Privilege" Legal Definitions
LEGAL DEFINITION OF ATTORNEY-CLIENT PRIVILEGE
Thomas A. Demetrio, Past President Chicago Bar Association, 2000, "Trial Practice: Objection!
Attorney-Client Privilege--Oh Really?", 14 CBA Record, 49, p. 49-50
Generally stated, the attorney-client privilege is defined as:
"communications made by a client to an attorney under the following circumstances: (1) where legal advice
of any kind is sought from an attorney in his capacity as such, (2) the communications relating to that
purpose, (3) made in confidence by the client, (4) are at his insistence permanently protected from
disclosure by the client or the attorney, (5) unless that protection is waived . CNR Investments Inc. v. The Jefferson
Trust and Savings Bank of Peoria, 115 Ill. App. 3d 1071, 1074 (3rd Dist. 1983).
Planet Debate
Attorney Client Privilege
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Privilege: Legal Protection of Confidentiality in Specific
Relationships
PRIVILEGE REFERS TO THE PROTECTION OF CONFIDENTIALITY IN A LEGAL
PROCEEDING
Ronald Goldfarb, Attorney, 2009, In Confidence: When to Protect Secrecy and When to Require
Disclosure, p. 24
Confidentiality is a principle of legal ethics that governs when communications may be disclosed and when,
more commonly, they should remain confidential. Privilege--more absolute--protects against compelled disclosure in a
deposition or trial proceeding. "Everything that is privileged is also protected by the confidentiality
principle but the converse is not true." The broader protection of confidentiality is governed by professional
rules of ethics and contractual arrangements; the more limited concept of privilege is governed by statute
and the common law.
PRIVILEGE ATTACHES LEGAL PROTECTION TO CONFIDENTIAL RELATIONSHIPS
Ronald Goldfarb, Attorney, 2009, In Confidence: When to Protect Secrecy and When to Require
Disclosure, p. 25
There is a fundamental distinction between confidentiality generally and privileged communications
specifically. Communications between parties may be confidential, and that confidentiality may and should be honored in
most situations. Privilege goes one step further, insulating the parties from sanctions for refusing to testify in
a legal proceeding or produce documents requested by subpoena. In these instances, the reluctant party claims that there
is a greater societal interest in preserving the confidentiality of their relationship than there is in revealing
the requested information. The consideration, then, is the morality of disclosure in situations in which confidentiality is sought
for good and socially sound reasons.
Planet Debate
Attorney Client Privilege
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Ethical Requirement of Attorney Confidentiality Distinct from
Evidentiary Privilege
ETHICAL RULE REGARDING ATTORNEY CONFIDENTIALITY DISTINCT FROM AND
BROADER THAN THE EVIDENTIARY PRIVILEGE
Paul C. Giannelli, Law Professor-Case Western Reserve, 2009, Understanding Evidence, p. 588
The attorney-client privilege should be distinguished from an attorney's obligations under the rules of
professional responsibility. Model Rule 1.6(a) states that lawyers "shall not reveal information relating to representation of a
client," with only two narrow exceptions: (1) To prevent a client from committing a criminal act likely to result in imminent death or
substantial bodily harm, or (2) where there is a dispute concerning the attorney's conduct. The confidentiality rule goes
beyond the evidentiary privilege: "The rule of client-lawyer confidentiality applies in situations other than those where
evidence is sought from the lawyer through compulsion of law. The confidentiality rule applies not merely to matters communicated
in confidence by the client but also to all information relating to the representation, whatever its source."
In short, the attorney-client privilege is limited to communications, and the ethical rule covers all information
obtained as a result of the representation. Moreover, an evidentiary privilege applies only in legal
proceedings, while the ethical rule applies outside them as well.
DISTINCTION BETWEEN PRIVILEGE AND PROFESSIONAL ETHICAL RULES
Ronald Goldfarb, Attorney, 2009, In Confidence: When to Protect Secrecy and When to Require
Disclosure, p. 31
The classic professional ethical rules that apply to lawyers, doctors, and priests are parallel to but different
from privileges. Professionals are monitored by their professional organizations . What and when they may and
may not divulge is governed by bar and medical and church rules. Those professional rules bind professionals, but they
are not evidentiary rules that determine what evidence is and is not admissible in court. The rules may
differ in their application, enforcement, and extent.
PROFESSIONAL CODE OF ETHICS BROADER THAN THE PRIVILEGE
Ronald Goldfarb, Attorney, 2009, In Confidence: When to Protect Secrecy and When to Require
Disclosure, p. 63
The principle of confidentiality between attorneys and clients has two sources--the general law of evidence
and the rules of professional ethics. The evidentiary privilege prevents attorneys only from testifying
against a client; the professional code of ethics applies in all contexts and governs all types of information -not merely communications--from all sources if the information is garnered from the representation of a client.
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Attorney Client Privilege
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**AFFIRMATIVE**
Planet Debate
Attorney Client Privilege
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Attorney-Client Privilege Conflicts with Truth-Seeking
EVIDENTIARY PRIVILEGE RULES IN CONFLICT WITH SEARCH FOR THE TRUTH
Melanie B. Leslie, Law Professor-Benjamin Cardozo School of Law, 2000, "The Costs of
Confidentiality and the Purpose of Privilege," 2000 Wis. L. Rev. 31, p. 31
Consequently, the contents of attorney-client communications are extraordinarily relevant and reliable
evidence. If the point of litigation is to deduce the truth, why exclude attorney-client communications?
Most evidentiary rules further the search for truth. Hearsay is excluded as unreliable, character evidence as
unduly prejudicial. The law of privileges is a stark exception because it conceals evidence that is highly reliable
and probative.
We tolerate attorney-client privilege because we suppose that without it, fear or ignorance would cause clients to omit, slant, or falsify
information when consulting attorneys. Perhaps unwittingly, clients would forfeit the opportunity to obtain sound legal advice. The
privilege, therefore, enables clients to function effectively in the legal system. The price is the exclusion of
relevant and reliable evidence.
ATTORNEY-CLIENT PRIVILEGE INHIBITS THE TRUTH-SEEKING FUNCTION: DISTINCT
FROM OTHER EVIDENTIARY RULES
Thomas P. Glynn, Law Professor, Seton Hall, 2002, "Federalizing Privilege", 52 Am. U.L. Rev. 59, p. 67
The protection afforded by the attorney-client privilege and other unqualified evidentiary privileges is
distinguishable from the protections afforded by other evidence rules that operate to exclude - e.g., hearsay,
opinion evidence, and character evidence restrictions - in two respects. First, privileges not only prevent the use of
protected communications at trial but also prohibit adverse parties from gaining access to such
communications, even if they contain otherwise relevant information. Privileges protect communications
by both parties and non-parties from discovery and other forms of compulsory disclosure. Thus, unlike other
legal doctrines classified as evidentiary rules, privileges protect against discovery of relevant information. Of course, the attorneyclient privilege does not protect underlying facts or information, which can be discovered through means other than disclosure of the
attorney-client communication.
Second, the testimonial privileges, including the attorney-client privilege, are unlike other exclusionary rules
because they are not designed to assist in finding the truth by excluding evidence which is unreliable or
likely to be unfairly prejudicial or misleading. To the contrary, privileges have the effect of inhibiting, rather
than facilitating, the illumination of the truth. Privileges serve to protect other interests that are regarded as sufficiently
important to warrant limiting access to relevant evidence.
PRIVILEGE UNDOUBTEDLY UNDERMINES TRUTH-SEEKING
Thomas P. Glynn, Law Professor, Seton Hall, 2002, "Federalizing Privilege", 52 Am. U.L. Rev. 59, p.
71-2
Yet, given the privilege's potential social costs, even ardent supporters of the utilitarian rationale - including the Supreme Court advocate construing the privilege narrowly. Doctrinal limitations, such as the crime-fraud exception, which seek to address abuse of
the privilege, are designed to reduce potential social harm. Despite such limitations, because the privilege inhibits discovery
of relevant communications, it can create obstacles to ascertaining the truth. The significance of this adverse
consequence is indeterminate because the privilege protects only attorney-client communications that arguably would not otherwise
exist and does not shield underlying information or facts from discovery. Still, the privilege unquestionably imposes
barriers to confrontation and ascertaining facts by shielding attorneys from testifying and otherwise
disclosing relevant communications and, at times, shielding clients from full examination . Indeed, the sheer
volume of litigation over privilege issues strongly suggests that adverse parties view access to these
communications as both useful and important.
ATTORNEY-CLIENT PRIVILEGE EXPRESSLY THWARTS TRUTH-SEEKING ROLE
Harvard Law Review, 1985, "Privileged Communication: I. Introduction: The Development of
Evidentiary Privileges in American Law," 98 Harv. L. Rev. 1450, p. 1454
Attacked as impediments to the search for truth, praised as guarantors of individual privacy, evidentiary privileges have long
been a subject of controversy within American law. That this is so is hardly surprising. Unlike other rules of evidence,
privileges are not fashioned primarily to exclude unreliable evidence or otherwise to aid in the truthseeking function. Indeed, as deviations from the centuries-old common law principle that "the public has a
right to every man's evidence," privileges expressly subordinate the goal of truth seeking to other societal
interests. Privileges thus visibly impede the realization of a central objective of the legal system in order to
advance other, often less immediate, goals.
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Attorney Client Privilege
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CONFIDENTIALITY RULES NECESSARILY INTERFERE WITH TRUTH-SEEKING
Ronald Goldfarb, Attorney, 2009, In Confidence: When to Protect Secrecy and When to Require
Disclosure, p. 28-9
As reasonable as rules about confidentiality and privileged communications are, they nonetheless raise a
dilemma. All confidentiality is questionable if the overriding goal is to get to the truth in an adversarial
system. For this reason, the noted British utilitarian philosopher Jeremy Bentham argued that most privileged
communications were "rubbish"; in his opinion, only rational inquiry relatively free of exclusionary rules could ensure
"rectitude of decision." Exclusions lacked empirical verification, shielded antisocial conduct, and produced
mischief by allowing guilty people to escape punishment, he theorized. "Exclude evidence, you exclude
justice," he cautioned. Sounding very much like modern conservative critics of the claimed "gamesmanship"
of the American criminal justice system, Bentham argued that innocent clients should be willing to have
their attorneys testify; only the guilty ones would want to insist on confidentiality -- but for antisocial reasons.
Similarly, offering spouses confidentiality permits "schemes of injustice" between married couples, making
them accomplices in crime. Bentham did think that guaranteed confidentiality was required in two instances: in confessionals
with priests and to protect state secrets."
Protecting confidentiality is inconsistent with getting at the truth, the fundamental purpose of the trial
system and the rules of evidence; it precludes critical evidence. And as a practical matter, there is no way to prove
definitively that relationships would be chilled or would not exist if the parties to them were not guaranteed
confidentiality. Wouldn't sick people still use their doctors even if there was no assurance of confidentiality? To what extent
should the law endorse humanistic concerns underlying confidentiality? If guilty criminals lose personal succor and
psychic relief by losing the confidentiality of their confessions--say, to their psychiatrist or social worker or priest-should we care? These questions and others are discussed in the chapters dealing with the specific privileged communications
presently recognized by the law.
ATTORNEY-CLIENT PRIVILEGE THE ONLY ONE WHERE COURTS DON'T MAKE
EXCEPTIONS FOR THE TRUTH
Ronald Goldfarb, Attorney, 2009, In Confidence: When to Protect Secrecy and When to Require
Disclosure, p. 83-4
Is the protection of attorney-client communications a modern form of professional protectionism toward which courts are especially
solicitous? Historically, this privilege has benefited from judicial deference and understanding. As one court
reported, "It is out of regard...to the administration of justice, which cannot go on without he aid of men skilled in jurisprudence, in the
practice of the courts, and in those matters affecting rights and obligations which form the subject of all judicial proceedings. If the
privilege did not exist at all, every one would be thrown upon his own legal resources. Deprived of all
professional assistance, a man would not venture to consult ay skillful person, or would only dare to tell his
counselor half his case." Yet in all other instances, courts have been amenable to exceptions to relational
privileges because they are impediments to law enforcement and the search for truth.
PRIVILEGE PROTECTS THE MOST RELIABLE EVIDENCE
Ronald Goldfarb, Attorney, 2009, In Confidence: When to Protect Secrecy and When to Require
Disclosure, p. 224-5
The search-for-truth premise of trials leads to the conclusion that no privilege should be permitted, because
in that search the best evidence may come from those very communications that historically have been
privileged. Various forms of testimony may provide pieces of any true picture. Communications by people in confession
or under psychoanalysis or in conversation with their spouses or attorneys are likely to be the best and most
relevant evidence in any civil or criminal trial. Professions put people at peace so that they may reveal their
truths, and they are more likely to do so than are competing attorneys in the hostile adversarial system. Yet
that is the very privileged evidence that the law excludes.
JUSTICE SYSTEM PUTS PRIVILEGE ABOVE TRUTH
Bankim Thanki, Queens Counsel, 2011, The Law of Privilege, Second Edition, p. 2
However, legal professional privilege operates unlike any other type of confidence , oral or documentary, on the
grounds of confidentiality. It has been said that "no obligation of honor, no duties of non-disclosure arising from the nature
of a pursuit or calling, could stand in the way of the imperative necessity of rvealing the truth in the witness
box." Legal professional privilege is an exception to this general principle, developed for reasons of fundamental
public policy but which is nonetheless anomalous. As a Victorian Vice-Chancellor put it in defending the rationale of legal
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Attorney Client Privilege
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professional privilege, even truth "like all other good things, may be love unwisely--maybe be pursued too keenly-- may
cost too much." Legal professional privilege entitles a party not to disclose information even if for example,
it is highly relevant to issues to be determined in a court or administrative tribunal . In essence, privileged
communications are immune from compulsory disclosure.
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Attorney Client Privilege
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Attorney-Client Privilege Conflicts with Truth-SeekingAdversarial System Conflicts With Truth
ADVERSARIAL NATURE OF SYSTEM ENSURES MANY OUTCOMES THAT DO NOT
COMPORT WITH THE TRUTH
Thane Rosenbaum, Law Professor Fordham University & Novelist, 2004, The Myth of Moral Justice:
Why Our Legal System Fails to Do What's Right, p. 20-1
In every legal action there is going to be a winner and a loser. That's how the combative, adversarial system
is set up to work. And make no mistake about it: the system is adversarial. Even with corporate mergers and acquisitions, takeovers
are usually deemed hostile. The advocacy is supposed to be zealous, which only heightens the winner-take-all dimensions of
the conflict. Two parties present their cases, trying to sway, if not manipulate, the story in their direction,
even as their versions may stray from the actual truth. Courts are designed to facilitate the resolution of these conflicts,
to essentially pick the winners, officiating this zero-sum exchange between parties who somehow, through life and its varied
transactions and mishaps, would up as adversaries, or worse, enemies.
But in a pure winner-take-all paradigm, where the advocacy is always fierce and strategically played out, victory is not
synonymous with justice, because the right party--the party that was right and should have won--may not end
up victorious. Sometimes the outcome of a legal conflict is determined for reasons wholly apart from the truth
or from what the morally correct result should have been. Often it's a matter of one side having superior resources over
and the other and exploiting them mercilessly. One lawyer --or a team of lawyers-might be simply more skilled
than his adversary. Sometimes the government's prosecutorial power is insurmountable , or the political
passions that exist outside the courthouse make it impossible for the defendant to receive a fair trial. In some cases, the presumptions
go in the opposite direction, where the community--in the form of a representative jury--sends a message by allowing a guilty person
to go free. Then there are those occasions when technical, procedural, or constitutional irregularities dictate a
result that is morally wrong, but one that justice somehow demands. Such an instance occurs when the police
mishandle or obtain evidence unlawfully. Had it not been for a procedural error, the defendant would have been found guilty.
EMPHASIS ON ZEALOUS ADVOCACY IN AN ADVERSARIAL SYSTEM UNDERMINES
TRUTH SEEKING
Thane Rosenbaum, Law Professor Fordham University & Novelist, 2004, The Myth of Moral Justice:
Why Our Legal System Fails to Do What's Right, p. 130
This satisfies the winner-take-all dimensions of the legal system quite well. Lawsuits are always framed as one party versus the other.
Once the lawsuit commences--even before then--interests are automatically deemed adverse, hostile, and colliding. And in a
contest in which one side is always pitted against the other, there are no external, extenuating
considerations--no common or public values." All that matters is securing an ultimate victory--regardless
of truth, regardless of honor, regardless of what's right . And it is the zealous advocate, sharp teeth gleaming,
nostrils flaring, an intemperate dosage of zeal in evident display, who is singularly capable of winning the contests that
the legal system instigates.
From a moral perspective, it is not the advocacy, or the representation, that is the problem. It's the particularly
loaded, elevated noun that precedes it--zealotry. Zealousness is insatiable in its passion for victory and vindication. Zealotry will
stop at nothing to win. Zealotry has a way of trampling over any respect for the truth.
ZEALOUS ADVOCACY DISTORTS AND IGNORES THE TRUTH
Thane Rosenbaum, Law Professor Fordham University & Novelist, 2004, The Myth of Moral Justice:
Why Our Legal System Fails to Do What's Right, p. 130-1
So much of what passes for zealous advocacy in the law is all about fudging, spinning, and explaining away
the unflattering elements of a client's story. And in the worst cases, the lawyer engages in outright lying. Truth is
beside the point, achieving the right moral outcome even more so. The zealous advocate wants to know
what actually happened, but doesn't want the rest of us to know. Truth is important only as a way to maintain damage
control. Truth, it seems, is the best weapon for waging a preemptive strike. The zealous attorney is not
interested in truth per se, just in its exploitation. While a client is speaking, the attorney is contemplating
the best light in which to characterize the story. And that light is a false light. It isn't beamed in order to
illuminate the truth, but rather to blind and distort it.
ZEALOUS REPRESENTATION DIRECTLY ASSAULTS TRUTH SEEKING
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Attorney Client Privilege
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Thane Rosenbaum, Law Professor Fordham University & Novelist, 2004, The Myth of Moral Justice:
Why Our Legal System Fails to Do What's Right, p. 131
In the law, zealotry leads to lies. One story is as good as any other; each expendable, easily unreliable. In the mind of a
zealot, truth is always subject to manipulation. Find one truth, assert it passionately, and ignore the rest.
The fuzzier the story, the better. Honesty is corrupted by gamesmanship. The attorney may be the mouthpiece and
storyteller of his client. But zealous representation gives license to the telling of entirely fictional , but legally more
palatable, tales. Throw up as many possibilities as the mind can imagine, and then let the jury trudge through
the assembled confusion. Attorneys will often do whatever is necessary to claim victory, including not
listening to the wishes of their clients, or fabricating new truths to replace actual ones that prejudice the
client's case. Prosecutors in the criminal area zealously focus on conviction rates and jail time because it awards them an ultimate
victory. Zealousness leads some prosecutors to withhold evidence, mislead witnesses, or cut deals with dangerous criminals in
exchange for their testimony. Remedies that are moral and spiritual in nature, however, can be accomplished without having to resort
much to zeal. But the absence of zeal somehow also makes them less interesting.
The zero-sum nature of the legal system, combined with the universal adoption of zealotry as the marching
orders of practitioners and prosecutors, transforms the moral mission of the legal system from one of truthseeking, storytelling, and justice, to one of fabrication, distortion, and manipulation in pursuit of victory.
These victories, however, make us all the losers.
ZEALOUS ADVOCACY SANCTIONS ATTORNEY PRACTICES TO DELIBERATELY
FRUSTRATE TRUTH SEEKING
Thane Rosenbaum, Law Professor Fordham University & Novelist, 2004, The Myth of Moral Justice:
Why Our Legal System Fails to Do What's Right, p. 131-2
A lawyer should advocate for his or her client faithfully, should seek out the best result, and function as the client's
representative before the law. But legal representation should not operate at the expense of truth, and never to the
extent that the lawyer has actively participated in a miscarriage of justice--conducting himself in a way that
violates the moral standards of the community. In Nix v. Whiteside, the Supreme Court ruled that lawyers
cannot "advocate or passively tolerate a client's giving false testimony. " In a law review article, Yale law professor
Akhil Reed Amar speculated whether Nix should be applied to situations not only when attorneys put on perjured
testimony, but also where, through cross-examination, they harass or deceive witnesses who they know to be
telling the truth. In the name of zealotry and brash advocacy, how much confrontation does the
confrontation clause of the 6th Amendment actually permit? Professor Amar also pondered why it is proper
for attorneys to spin false theories and facts during their opening statements, knowing that its only purpose
is to distract jurors, throwing them off the scent for the truth.
ADVERSARY SYSTEM BRINGS MORALITY INTO QUESTION
Ronald Goldfarb, Attorney, 2009, In Confidence: When to Protect Secrecy and When to Require
Disclosure, p. 72
Legal theorists have debated the dilemma created by this case, and there is no totally acceptable answer. One expert even
questioned whether a decent ethical person can ever be a lawyer. The law elevates, as it must, the adversary
system, the presumption of innocence, the right to counsel, and rules of confidentiality. Is this a separate
morality? If so, might there be exceptions? Who strikes a balance between common morality and professional or
legal morality, and by what standards?
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Attorney Client Privilege
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Attorney-Client Privilege Conflicts with Truth-Seeking: Only
Needed for Lies and False Defense
ATTORNEY CLIENT PRIVILEGE ONLY NEEDED TO PROTECT LIES AND FALSE
DEFENSES
Ronald Goldfarb, Attorney, 2009, In Confidence: When to Protect Secrecy and When to Require
Disclosure, p. 61
Bentham, along with some early common-law judges, complained about the immoral impact of the rule of privileged
communications, in much the same language as modern conservatives who chide the criminal-justice
system for being a game of chance more than a search for truth. If the guilty client is deterred from seeking
legal advice (a false defense), the argument goes, there is no harm to justice; the innocent client has nothing to fear,
so won't be deterred.
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Attorney-Client Privilege Conflicts with Truth-SeekingConflicts with Attorney as Officer of the Court
ATTORNEY-CLIENT PRIVILEGE CONFLICTS WITH ATTORNEY AS OFFICER OF THE
COURT
Jocelyn N .Sands & Roy Conn, Law Students 1984, "Confidentiality and the Lawyer's Conflicting Duty,"
27 How. L.J. 329, p. 329
This article discusses the obligation of the lawyer to preserve the confidences of his client as it conflicts
with the lawyer's duty of candor as an officer of the court. As an integral part of our judicial system, the
lawyer is charged with the responsibility of upholding the law. The lawyer must advise his client to avoid violations of
the law so that the client may properly exercise his rights.
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Attorney-Client Privilege Conflicts with Truth-Seeking- AT:
"Evidence Would Not Exist Without the Privilege"
PRIVILEGE NOT LIMITED TO EVIDENCE THAT OTHERWISE WOULD NOT HAVE BEEN
DISCOVERABLE
Melanie B. Leslie, Law Professor-Benjamin Cardozo School of Law, 2000, "The Costs of
Confidentiality and the Purpose of Privilege," 2000 Wis. L. Rev. 31, p. 31-2
In a perfect world, however, the privilege would shield no evidence. Privilege generates the communication
that the privilege protects. Eliminate the privilege, and the communication disappears or is rendered unreliable.
In a perfect world, then, the privilege would protect only reliable statements that would not otherwise have been made. In reality,
however, the privilege is not a but-for cause of all attorney-client communications. Clients may gain privilege protection
for
statements that they would have made without the privilege, simply by minding the privilege rules. To the
extent that clients claim the privilege unnecessarily, the privilege obstructs the fact-finding process. It
excludes communications that would otherwise have been discoverable. Thus have courts and commentators
ceaselessly, almost stridently, emphasized the importance of construing the privilege narrowly.
PRIVILEGE DOES EXCLUDE INFORMATION THAT WOULD HAVE OTHERWISE EXISTED
- INSTRUMENTAL JUSTIFICATION FLAWED
Edward J. Imwinkelried, Law Professor-U. Cal Davis, 2002, "The Historical Cycle in the Law of
Evidentiary Privileges," 55 Ark. L. Rev. 241, p. 254-6
One is that Wigmore overestimated the impact of evidentiary privileges on laypersons' out-of-court behavior.
If it were true that the typical client or patient would not consult or communicate with professional
confidants but for the existence of evidentiary privileges, the recognition of privileges would be cost-free to
the legal system. But for the privilege, the layperson would not make the disclosure to begin with. Thus, the privilege would
operate to suppress only potential evidence that would not have come into existence without the privilege.
Wigmore's hypothesis that laypersons are so concerned about later, compelled judicial disclosure of their confidences is plausible.
However, modern science has taught us to distinguish between the plausible and the proven. When Wigmore wrote, he did not have
the benefit of any systematic, empirical studies of the impact of evidentiary privileges on the out-of-court conduct of laypersons. He
had no choice but to rely on common sense and stereotypical reasoning. However, since the release of the last revision of volume eight
of Wigmore's treatise, there have been a number of studies on the effect of the attorney-client and
psychotherapist-patient privileges. It is certainly dangerous to extrapolate from the available data, because there have been
only a few handfuls of studies. However, the findings in the studies are relatively uniform. The researchers have
fairly consistently found that: Even absent a privilege, only a small minority of laypersons would be
deterred from consulting the professional; without a privilege, perhaps a significant minority of the
laypersons would be somewhat more guarded in their communications, particularly written communications, with
the confidant; but the vast majority of laypersons would still consult and communicate with their confidants to
roughly the same extent. On reflection, these findings should not come as a surprise. As Professor Paschal pointed out in the
Senate hearings on the proposed Federal Rules of Evidence, most laypersons communicating with confidants are
engaged in primary, pre-litigation activities. Typically, at the time of the communication they have little or no
concern about subsequent litigation. Moreover, they often have strong, even impelling, reasons to
communicate. For example, if a patient is in intense pain or fears that he or she is dying, the patient is likely to disclose any
information requested by the physician regardless of the existence vel non of a medical privilege in that jurisdiction.
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AT: "Truth Seeking Frustrated By Other Protections and
Privileges"
TRUTH-IMPAIRING PROTECTIONS ARE CONSTRUED VERY NARROWLY
Tom Stacy, Law Professor-University of Kansas, 1991, "The Search for Truth in Constitutional Criminal
Proceedings," 91 Colum. L. Rev. 1369, p. 1384
The foregoing discussion is not intended as a fully comprehensive review of the Court's treatment of truth-impairing rights during the
last twenty years. It instead seeks to call attention to an important but insufficiently examined theme: the notion that the societal
interest in accurate adjudication justifies interpreting truth-impairing rights restrictively. This theme, though not
all-encompassing, has been pervasive. It runs through scores of decisions, unifying doctrinal developments
involving search and seizure law, the privilege against self-incrimination, double jeopardy, harmless error,
and habeas corpus.
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Truth Seeking Should Trump: Vital for Just Outcomes
SACRIFICING TRUTH FOR EFFICIENT DISPOSAL OF CASES UNJUST
Thane Rosenbaum, Law Professor Fordham University & Novelist, 2004, The Myth of Moral Justice:
Why Our Legal System Fails to Do What's Right, p. 21-2
If the community believes that the legal system is there to do what's just and to discover the truth --indeed, to
provide an official record of the truth--then a sporting theory of justice, where one side is anointed the winner
while the other is banished as the loser, may not achieve a legitimate sense of justness, or truth . Winning,
after all, is a contest of skill and luck, story-spinning and manipulations, and not a referendum on truth.
Justice, as defined by a legal resolution, may be done, but sometimes not at all served, because the result is a gruesome
miscarriage and not just at all. The winner-take-all structure of the legal system is morally deficient because it
creates a presumption that justice has been achieved when morally it has not. Sometimes the ultimate winner
should not have been victorious, and the losing party, nonparty victims, and the outside community know this to be true. And often
the best moral result would seek not to trounce the loser but to approximate some measure of victory in
both parties--to send them both home healed rather than ambivalent or enraged. Everyone is made worse
off by unjust outcomes. And the discovery of the truth has to be given the same prominence as the bottomline, efficient disposal of cases.
JUSTICE SYSTEM SHOULD PRIORITIZE THE SEARCH FOR TRUTH
Thane Rosenbaum, Law Professor Fordham University & Novelist, 2004, The Myth of Moral Justice:
Why Our Legal System Fails to Do What's Right, p. 87-8
With this essentially immoral, albeit perfectly legal arrangement, we have surrounded ourselves with lies, and locked
ourselves up within a system that perpetuates further lies. Our jails are filled with people who are
incarcerated for all the wrong reasons, a miasmic haze of generalized guilt-- unspecified and totally disconnected
from the actual events themselves. They sit in jail, and the story of what happened sits with them. And no one seems to care, as
long as jails have low vacancy rates. We have bargained away the sanctity of truth for the certainty of a jail
sentence. Indeed, the official courthouse records of criminal dispositions are distorted, because they reflect
false punishments. A rape is reduced to an assault. Something that is felonious suddenly, magically,
becomes merely mischievous. A first-degree offense is lessened to a crime with a lower degree of culpability, stripped down
to something less ominous--and less true. We are all ultimately the unwitting victims of a system that subordinates
truths to its narrow vision of justice. But isn't justice all about discovering the truth? Moral and historical
justice can't be accomplished without knowing what happened . This is what people assume courthouses are
for: truth-telling, truth-seeking, justice embodied in the very nature, and in all the delicate nuances, of truth
itself.
JUSTICE BETTER SERVED BY PURSUING TRUTH THAN PROTECTING PRIVILEGES
Ronald Goldfarb, Attorney, 2009, In Confidence: When to Protect Secrecy and When to Require
Disclosure, p. 65
To accept the notion of privilege, one must subscribe to the idea that there is a greater good to be attained by
ensuring the inviolability of conversations between attorneys and their clients . Some ask whether a greater
number of people in society would be better served when the goal of the justice system is truth rather than
the protection of one client's self-protecting, self-serving interest, which may or may not lead to the truth.
JUSTICE SYSTEM DESIGNED TO SEARCH FOR TRUTH
Ronald Goldfarb, Attorney, 2009, In Confidence: When to Protect Secrecy and When to Require
Disclosure, p. 225
A trial purports to be a search for the revelation of secrets. Witnesses are asked to swear to tell the whole
truth. Discovery is aimed at disclosing facts, revealing concealments. Judges and juries are charged with discerning and
uncovering facts, however painful the revelations of those facts may be to reluctant witnesses. It is deemed contemptuous
of the judicial process to refuse to testify.
PURSUIT OF TRUTH MAIN PURPOSE OF JUSTICE SYSTEM
Bankim Thanki, Queens Counsel, 2011, The Law of Privilege, Second Edition, p. 10-1
With regard to the need for candour, it is hard to find a better judicial statement of the principle than that of Sir James Knight Bruce
V-C in the early Victorian case of Pease v Pease.
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"The
discovery and vindication and establishment of truth are main purposes certainly of the existence of Courts
of Justice; still, for the obtaining of these objects, which, however valuable and important, cannot be usefully pursued without
moderation, cannot be either usefully or creditably pursued unfairly or gained by unfair means, not very channel is or ought to be open
to them. The practical inefficacy of torture is not, I suppose, the most weighty objection to that mode of examination...Truth, like all
other good things, may be loved unwisely--may be pursued too keenly -- may cost too much. And surely the meanness
and the mischief of prying into a man's confidential communications with his legal adviser, the general evil
of infusing reserve and dissimulation, uneasiness, and suspicion and fear, into those communications which
must take place, and which, unless in a condition of perfect security, must take place uselessly or worse, are
too great a price to pay for truth itself."
STRONG SOCIAL INTEREST IN COURTS GETTING IT RIGHT
Bankim Thanki, Queens Counsel, 2011, The Law of Privilege, Second Edition, p. vii
In almost every contested civil action there is a dispute about what happened. The court has to decide. It may accept the claimant's
version of events, or the defendant's. Or it may find the truth to lie somewhere between their competing accounts. Or it may, very
exceptionally, find it impossible to decide one way or the other. But it is important to the parties that the court reaches
the right conclusion, and it is also important to the good ordering of society. To help the court in its task
the parties are required to make available all materials pertinent to its decision.
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Truth Seeking Should Trump: Harms of the Attorney-Client
Privilege Outweigh Advantages
DAMAGE TO MORAL JUSTICE AND PUBLIC TRUST FROM ATTORNEY-CLIENT
PRIVILEGE FAR OUTWEIGHS ITS ADVANTAGES
Thane Rosenbaum, Law Professor Fordham University & Novelist, 2004, The Myth of Moral Justice:
Why Our Legal System Fails to Do What's Right, p. 121-2
The Morales decision is an extreme but not unfamiliar example of how privileges show the law to be morally unjust.
Confidentiality remains, unquestionably, a source of pride within the legal profession, and an acceptably lawful
and ethical practice. But among those who are not lawyers, there is something palpably creepy about people
who are ethically bound not to reveal the secrets that they treasure, regardless of the consequences that
might spill from their silence. The safeguarding of secrets ultimately compromises truths. While the duty to the
client is clear, the moral abuse of the privilege violates the public trust. Moral justice becomes impossible to
achieve when attorneys fail to reveal what they know when it is morally wrong not to. The attorney-client
privilege serves the interests of clients who wish to speak frankly with their attorneys, but it also has the
social and moral consequence of perpetuating secrets and lies. And sometimes these secrets harbor an
injustice that violates a much larger principle than the mere attorney-client privilege.
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Truth Seeking Should Trump: Defendant's Right to Evidence
Outweighs
DEFENDANT'S RIGHT TO THE INFORMATION SHOULD TRUMP PRIVILEGE
Ronald Goldfarb, Attorney, 2009, In Confidence: When to Protect Secrecy and When to Require
Disclosure, p. 231
On the other hand, the historical practice of affording privileges to specific classes of relations or information
should be reconsidered and reformulated, and limited to the barest minimum (for example, government secrets
about troop movements during wartime and identification of informants in criminal investigations). Even then, there should be no
absolute privileges, as demonstrated by the abusive claims of state secrets discussed in chapter 2. I agree with Professor
Imwinkelried's conclusion that "virtually any privilege can be surmounted by the accused's constitutional right to
present evidence," in civil and criminal cases.
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Truth Seeking Should Trump: Vital for Morality
TRUTH SEEKING IN TRIALS CRITICAL TO MORAL HEALTH
Thane Rosenbaum, Law Professor Fordham University & Novelist, 2004, The Myth of Moral Justice:
Why Our Legal System Fails to Do What's Right, p. 90
Our moral health is healed when there is an official forum, one of unquiet reverence, in which to bring our
grievances. Injustice and indignity are not corrected on psychotherapist's couches or in Catholic confessionals. There are times
when people need to depend on the law, because it is only in the law, or through the law, that the sense of
making things right--of learning the truth and the lessons learned from those truths--can become animated
and real in the hearts and minds of men and women. And the resolution that people seek is mainly found in the
justice that comes from the spectacle of a trial.
Trial is the way in which the legal system approximates and arrives at truth. Truth cannot be discovered in star
chambers, drumhead courts, and closed-door proceedings. It must be found in the open air of a public trial . It is where the
clearest picture of what happened can be seen. And it is also where the injured, betrayed, and violated receive their
day in court--a real day, not some nominal, perfunctory, superficially ceremonial legal moment, but a true day, devoted entirely
to the elevation of the injured party's story and the discovery of the truth. It is also at trial where the public watches
with fascination and awaits the outcome with all the bated curiosity of a Greek chorus. And it is at trial where the legal system
provides the most glaringly sympathetic double exposure on the face of grief.
MORAL LEGITIMACY REQUIRES TRUTH-SEEKING
Thane Rosenbaum, Law Professor Fordham University & Novelist, 2004, The Myth of Moral Justice:
Why Our Legal System Fails to Do What's Right, p. 103
Clearly, if justice has any moral legitimacy, it has to reveal truths, and there has to be an integrity to the way
in which those truths are discovered. But when lying is tolerated and is seemingly permissible, then the legal systems shows
itself to be unworthy and unjust. Nothing thwarts truth more than lying witnesses. It undermines any sense of justice,
and shows the law to be a sham. Lying is worse than the mere risks associated with the adversarial process. It's one thing to
accept that the opposing side's trial strategy was superior. It's quite another to realize that the outcome would have been different had
a witness simply told the truth.
TRUTH BETTER FOR MORALITY AND JUSTICE
Thane Rosenbaum, Law Professor Fordham University & Novelist, 2004, The Myth of Moral Justice:
Why Our Legal System Fails to Do What's Right, p. 104
It's not that the justice system sanctions lying. The legal may be functionally split from the moral in the American
justice system, but that doesn't mean that the law sees no value in witnesses telling the truth. It is clearly
better for legal results to be supported by actual truths--if not for moral reasons, then for purely legal ones.
But it does seem as if the legal system has neither the time nor the patience for truth, since there is apparently no
consequence to lying.
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Truth Seeking Should Trump: Vital for Societal Survival
SOCIETY WILL CRUMBLE IF THE JUSTICE SYSTEM DOES NOT PRIORITIZE THE TRUTH
Thane Rosenbaum, Law Professor Fordham University & Novelist, 2004, The Myth of Moral Justice:
Why Our Legal System Fails to Do What's Right, p. 88-9
There are grave moral risks living among lies. This is the central lesson in Sophocles's Oediups Rex. The real Oedipal
complex is not sexual but legal. Oedipus is the king of Thebes, which is crumbling at the very core of its Greek
columns, collapsing under the moral weight of a silenced, unpunished crime. A truth has been buried , a story
has not been told. The prior King, Laius, was murdered, but nothing was done or said about solving the crime, nor was
it spoken of again. Oedipus seamlessly slipped into the former king's robe. Years of silence, however, had a way of
exposing and enlarging the cracks in the moral foundation of the kingdom. The truth, and the telling of the story, is
the only remedy that can save Thebes, because the consequences of such injustice will not be made to go
away simply by not speaking of it.
All societies ultimately corrode and cannot endure when surrounded by so many untold stories and
insufficiently punished crimes. That's what Oedipus discovers, and it sends him on his own journey to justice, one that begins
with his blindness to the truth and ends with his actual blindness. The moral imperative to know the truth is inviolable.
At the end of the play, Thebes can finally move forward. The future of Oedipus -- as judge juror, and principal defendant -- is not as
promising, however. In keeping with the spirit of a Greek tragedy, he searches for the truth with open eyes even though it brings
about his own ruin and ultimate self-inflicted blindness.
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Truth Seeking Should Trump: Public Trust in the Legal System
TRUTH SEEKING AIM AND RESULTS VITAL TO PUBLIC TRUST IN THE LEGAL SYSTEM
Thane Rosenbaum, Law Professor Fordham University & Novelist, 2004, The Myth of Moral Justice:
Why Our Legal System Fails to Do What's Right, p. 17
The law is inured to these practical realities of providing justice . The public, however, finds this situation intolerable,
and it contributes to a kind of moral revulsion toward the legal system for its complacency about discovering
the truth. Two parties come before the law, each telling a different story. Which story is true, or is there yet another story that
approximates the truth more accurately? The public needs to believe that the law can reveal the truth--that it even
cares about the truth -- as much as it needs to believe that the law can punish offenders and resolve conflicts. But on this
treadmill toward resolution, the truth loses traction--the zeal for finality overrides the truth behind the story.
This failure to distinguish facts from truths -- what many believe ought to be the law's central aim--is one
source of hostility that artists have long directed at the legal system. How can the law be anything if it's not about
establishing the truth? And why should the public have faith in an institution that professes to be about truth but then delivers a brand
of justice that ends up undermining and subverting the truth?
PUBLIC WANTS JUSTICE SYSTEM TO EMPHASIZE TRUTH-SEEKING
Thane Rosenbaum, Law Professor Fordham University & Novelist, 2004, The Myth of Moral Justice:
Why Our Legal System Fails to Do What's Right, p. 89
If the acknowledgement of the story and the discovery of the truth are important moral values, why then
does the legal system excel, almost systematically, at subverting truths and squashing stories? If the public
believes that the hallmark of the justice system is to ensure that victims are given an opportunity to tell their stories and to confront
those who have harmed them, then why does the legal system work overtime to do all that is possible to avoid the
trials where stories can be told and truth can be discovered? Is it any wonder that the public has so little
regard for the legal system when the law shows such disdain for what citizens actually expect and want? A
moral and just legal system is not one that merely recites the language of law, but rather one that allows
citizens to speak in their own words, to express their own feelings, all in the quest for truth.
PUBLIC DISLIKES PRIVILEGE BECAUSE THEY VIEW IT AS UNDERMINING TRUTHSEEKING
Thomas P. Glynn, Law Professor, Seton Hall, 2002, "Federalizing Privilege", 52 Am. U.L. Rev. 59, p. 60
Yet, when the focus shifts outward, specifically to an adversary's use of the privilege as a shield in discovery or at
trial, attitudes toward the privilege turn decisively sour . From this perspective, attorneys and their clients view
the privilege as a formidable barrier to ascertaining truth, and the plaintiffs' bar in particular sees claims of
privilege as largely overstated and obstructionist. Likewise, the public takes a dim view of assertions of the
attorney-client and other privileges by those under scrutiny in well-publicized disputes or scandals, such as
the tobacco litigation and the recent Enron debacle.
PRIVILEGE SHOULD NOT BE PUT ABOVE INTEGRITY OF THE SYSTEM
Thane Rosenbaum, Law Professor Fordham University & Novelist, 2004, The Myth of Moral Justice:
Why Our Legal System Fails to Do What's Right, p. 122-3
In 2003 an attorney in Washington State was suspended from the practice of law for six months by the Washington
Supreme Court for having violated a client confidence, even though his disclosure led to the removal of a
corrupt state-court judge. In 1992, attorney Douglas Schaefer was informed by one of his less scrupulous clients
that Grant Anderson, who was soon to become a state-court judge, was about to engage in improper, unlawful
conduct. Three years later, perhaps in retaliation for Judge Anderson's having sanctioned Schaefer for bringing a frivolous
lawsuit, Schaefer notified the state bar of judge Anderson's earlier misconduct. The Washington Supreme
Court ruled: "Because of Schaefer's actions, a corrupt judge was exposed and the public was served by the
judge's removal from office." Yet, the court determined that Schaefer should nonetheless be punished for
having violated his client's trust. Following this decision, Schaefer was quoted in the New York Times, responding the court's
ruling: "They are clearly delivering the message that the secrets of a corrupt client who conspired with a
corrupt judge are more important than the restoration of the integrity of the judicial system."
Schaefer is right; morally, such a ruling makes no sense. An most laymen would agree. Most lawyers, unfortunately, would not.
HARM TO TRUTH-SEEKING MEANS THAT PRIVILEGES DELEGITIMIZE THE LEGAL
SYSTEM
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Harvard Law Review, 1985, "Privileged Communication: I. Introduction: The Development of
Evidentiary Privileges in American Law," 98 Harv. L. Rev. 1450, p. 1499-1500
One could also argue, however, that existing privileges delegitimate the legal system. Central to the integrity of the
legal system are the images of equal justice and truth-seeking. Privileges are bound to tarnish these images
both because they base distinctions of legal obligation on status and because they permit the exclusion of
probative evidence. Moreover, to the extent that courts intentionally use uncertain rules but employ the rhetoric of certainty, they
engage in a systemic deception that may have its own delegitimating effect.
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Truth Seeking Should Trump: Truth Critical to Adversary
System
TRUTH-SEEKING VITAL TO EFFECTIVE ADVERSARY SYSTEM
Ronald Goldfarb, Attorney, 2009, In Confidence: When to Protect Secrecy and When to Require
Disclosure, p. 61
The Supreme Court formally recognized the privilege in 1826 , and it has been followed rigorously since then.
The privilege is "central to the legal system and the adversary process," Justice Anthony Kennedy wrote in a
California case when he was a circuit court judge..
The jurisprudential rationale for the attorney-client privilege has been challenged. The very basic concern
about all privileges is that they violate "a fundamental maxim that the public...has a right to every man's
evidence," and the dean of American evidence law, John Henry Wigmore. The nineteenth-century British philosopher Jeremy
Bentham argued that privileges violated "the truth theory of adjudication." Professor Edward Clearly, an
important academic in the fashioning of the modern American rules of evidence, called privileges "blockades to the quest
for truth." The essential rationale of the adversary system is challenged by rules that exclude evidence that
would lead to the discovery of truth.
ADVERSARY SYSTEM BUILT ON PREMISE THAT IT IS THE BEST WAY TO FIND THE
TRUTH
Ronald Goldfarb, Attorney, 2009, In Confidence: When to Protect Secrecy and When to Require
Disclosure, p. 224
The fundamental dilemma about privileged communications is that the adversarial trial process is a search
for truth, but that search may be impeded by excluding certain relevant but privileged evidence. Revered
intellectuals such as John Locke and Oliver Wendell Holmes Jr. have argued that the dynamic democratic marketplace of
ideas is the best places to encourage the search for truth. The adversary system and its rules of evidence are
predicated on this notion. There are veteran trial lawyers who would snicker at the suggestion that what
goes on in the trial system is a search for truth, rather than a partisan battle to win that may be aided by concealment and
obfuscation and is justified by victory. Trial lawyers know, and cynical lay observers intuit (especially after the pervasive
coverage of the O.J. Simpson case), that "truth" is what advocates may say they are after but victory is the real
goal of combative trials truth notwithstanding. The question whether the adversary system is the best process for attaining
truth is the rich subject of another book. The present inquiry presumes that the adversary system--however imperfect--is the one we
use for seeking truth; it is the system we have, and we are not likely to replace it.
TRUTH IS THE PRIMARY DETERMINANT OF WHETHER THE ADVERSARY SYSTEM
PRODUCES JUSTICE
Dean Robert Gilbert Johnston & Sara Lufrano, Professor Law Student-John Marshall School of Law,
2002, "The Adversary System as a Means of Seeking Truth and Justice," 35 J. Marshall L. Rev. 147, p. 154
The adversary system is the system employed in the United States to resolve litigation disputes. It relies on the
"unshakable foundation that truth is the object of the system's process which is designed for the purpose of
dispensing justice." n56 If the system allows any untruthfulness or lack of candor to exist, the process loses
validity. n57 If the adversary system loses validity, there will no longer be any reason for the system to
continue. n58 To assure that a truthful and just outcome results, attorneys are bound by the Rules of Professional Conduct as adopted
by the state in which they practice. In addition, because discovery plays a major role in arriving at the truth of a lawsuit, attorneys are
also bound by the rules of discovery within the Federal Rules of Civil Procedure.
TRUTH-SEEKING IS THE PRIMARY GOAL OF THE ADVERSARIAL SYSTEM
Dean Robert Gilbert Johnston & Sara Lufrano, Professor Law Student-John Marshall School of Law,
2002, "The Adversary System as a Means of Seeking Truth and Justice," 35 J. Marshall L. Rev. 147, p.
160-1
The ultimate purpose of the adversary system is to seek truth and justice . To achieve this purpose, the system
regulates attorneys' conduct through the Model Rules as adopted by each particular state and the Federal Rules. The Model Rules
impose a duty on attorneys, as officers of the court, and to the public. The first priority of the adversary system is arriving
at a truthful and just result. Attorneys must remember that they are "officers of the court" and, as such, owe
primary allegiance to the administration of justice. An attorney's duty to the public as an officer of the court
precedes his or her duty to the client.
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Truth Seeking Should Trump: Privilege Should Not Survive
Client's Death
MUST CONSTRUE PRIVILEGES NARROWLY SO AS TO HAVE THE LEAST POSSIBLE
INFRINGEMENT ON TRUTH-SEEKING - SHOULD NOT SURVIVE DEATH OF CLIENT
Julie Peters Zamacona, Law Student, 1999, "Attorney-Client Privilege Survives the Death of the Client..."
21 U. Ark. Little Rock L. Rev. 277, p. 294-5
The dissenting opinion picked up where the majority opinion left off. The fundamental premise from which Justice
O'Connor developed her dissent was the inconsistency in the protections afforded by privilege and the
judicial goal of truth-seeking. Justice O'Connor supported the court of appeals' balancing test, reflecting that
evidentiary privileges must be construed narrowly and "give way" where not justified in the public interest.
Justice O'Connor also expressed support for examination of the privilege where its use would frustrate
justice. While recognizing a deceased client's personal, reputational, and economic interest in confidentiality, Justice O'Connor
stressed that were the client living, the facts he shared with his attorney would not be privileged, and if necessary, could be disclosed
under a grant of immunity.
Justice O'Connor expressed concern for the scenario where an innocent defendant might be convicted despite
exculpatory information known by a deceased client's attorney. Following an act-utilitarian framework, Justice
O'Connor's dissent was fraught with reluctance to hold the right to confidential communications universally supreme to the rights of
an innocent defendant; however, Justice O'Connor further called for a posthumous exception upon a showing of a compelling law
enforcement need for privileged information. Rather than permitting the attorney-client privilege to serve as a
complete bar to post-mortem disclosure, thus allowing distortion of the judicial record or the purposeful
misleading of the factfinder, Justice O'Connor would advance the application of an in camera balancing test
for factual information otherwise unattainable.
POST-MORTEM PRIVILGE SHOULD NOT TRUMP SOCIETAL INTERESTS IN LAW
ENFORCEMENT AND PROTECTING THE INNOCENT
Julie Peters Zamacona, Law Student, 1999, "Attorney-Client Privilege Survives the Death of the Client..."
21 U. Ark. Little Rock L. Rev. 277, p. 296
In concluding, Justice O'Connor questioned the tacit acceptance of the post- mortem attorney-client privilege as
an established common law tradition, focusing on the vacuum of reasoned express holdings rather than the many holdings
expressing the mere presumption of its survival. Relying on many of the same authorities as the court of appeals and the Independent
Counsel, Justice O'Connor concluded by stating her dislike for the costs imposed by silence. Indeed, Justice O'Connor's strong
preference is for an exception to the post-mortem attorney-client privilege when necessary to protect the
rights of an innocent criminal defendant or a compelling law enforcement interest.
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Truth Seeking Should Trump: Crime-Fraud Exception
Confirms
CRIME-FRAUD EXCEPTION PROVES THAT TRUTH-SEEKING DOES SOMETIMES TRUMP
JUSTICE-ENHANCING GOALS
Auburn K. Daily & S. Britta Thornquist, Law Students-Georgetown University, 2003, "Has the
Exception Outgrown the Privilege?", 16 Geo. J. Legal Ethics 583, p. 585-6
The attorney-client privilege "encourage[s] full and frank communications between attorneys and their clients" by making such
communications confidential. The privilege does not, however, protect communications made in furtherance of
a
crime or fraud because "the costs to truth-seeking outweigh the justice-enhancing effects of a complete and
candid attorney-client conversation." Determining whether the exception applies depends not on the occurrence of a crime or
fraud, but rather on the client's intent at the time he sought the attorney's advice. The exception applies if the client intended
to consult with a lawyer in furtherance of an intended crime or fraud. Demonstrating the requisite criminal intent may
be highly problematic. It is difficult, if not impossible, for attorneys or the courts to objectively determine what the client's intent was
in seeking legal advice.
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AT: "Truth Seeking More Important to Justice System that
Protection of Individual Autonomy"
SEARCH FOR TRUTH DOES NOT TRADE OFF WITH RESPECT FOR DIGNITY
Daniel Walfish, Law Clerk for Southern District of NY, 2005, "Making Lawyers Responsible for the
Truth," 35 Seton Hall L. Rev. 613, p. 622
Freedman's response to Frankel essentially ended there, although as a logical matter, his answer was not complete. Freedman did
not explain why dignity requires processes that distort the truth. That is, even if dignity is of paramount
concern, and the only way to serve dignity is through process, it is not clear why that process must override
the truth. Freedman does not explain why dignity would be at risk under procedures designed to promote
rather than subordinate truth.
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Should Eliminate Attorney-Client Privilege - Better for Justice
ELIMINATING ATTORNEY-CLIENT PRIVILEGE BETTER FOR JUSTICE
Ronald Goldfarb, Attorney, 2009, In Confidence: When to Protect Secrecy and When to Require
Disclosure, p. 62
Is the system better "for affording to criminals a chance of escape ," Bentham asked? The safety of the innocent
is not jeopardized by eliminating the rule of privilege. The law should not be the enemy of the innocent, this
argument proposes; why dread the truth? Attorneys do not -- should not -- hire themselves out to frustrate justice or
delude juries through artifice. "The professional lawyer would be a minister of justice, not an abettor of crime ,"
Bentham argued, were the attorney-client privilege eliminated.
ELIMINATING PRIVILEGE ONLY HURTS GUILTY CLIENTS -- PRESERVES JUSTICE
Ronald Goldfarb, Attorney, 2009, In Confidence: When to Protect Secrecy and When to Require
Disclosure, p. 62
Why, critics ask, should disclosures of confidential communications between an attorney and client be
deemed treacherous or immoral betrayals of trust? If discovering the truth and punishing misconduct are the
goals of the justice system, what is the mischief in seeking evidence from attorneys cynics ask? So what if a
denial of this privilege would discourage clients from confessing their guilt? Why should the law
encourage delinquents from escaping the consequences of their acts? What makes an attorney an accessory after the
fact to a crime by allowing the attorney to assist the wrongdoer in concealing crime and escaping punishment?
If the privilege is denied, the charge continues, innocent clients will be aided and the guilty ones will not be able
to frustrate the law and evade the truth. Is the trial system a pernicious game? Where does virtue lie in this jurisprudential
conflict? Shouldn't the lawyer be the minister of justice and guardian of truth, rather than a abettor of crimes
and suborner of mendacity? As Bentham asked: "Whence comes it that any one loves darkness better than light, except it be
that this deeds are evil."
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Should Weigh Attorney-Client Privilege in Individual Cases
SHOULD SUBJECT PRIVILEGE TO MORE CAREFUL WEIGHING OF PUBLIC AND
DEFENDANT RIGHTS
Ronald Goldfarb, Attorney, 2009, In Confidence: When to Protect Secrecy and When to Require
Disclosure, p. 237
Relaxing the Attorney-Client Privilege. There should be a more expansive and balanced approach to the attorneyclient privilege. There are other appropriate exceptions to the privilege beyond the traditional crime fraud
and will-contest exceptions. When a client is deceased, and when there are strong policy reasons to make
an exception to attorney-client confidentiality, courts should be able to do so . The media adviser in litigation
should be held by the parties to the agreed-upon standard of confidentiality and should be accountable for breaking that promise. He or
she ought not to be able to claim privilege under some stretched attorney-client claim. Corporate and other institutional attorneys
should be free to disclose criminal acts without fearing self-incrimination, and stockholders and others should have access to evidence
of insider misconduct by corporate managers.
Bar rules regarding confidentiality codify important professional norms. But they should not be absolute .
When the interests of justice manifestly warrant it, exceptions should be made by the presiding courts .
There is no reason that a citizen should be exposed to unjust adjudication (the adjudication of capital punishment,
for example), as in the Virginia case discussed in chapter 3, because rules --even wise general rules -- are not open to appropriate
exceptions.
The Supreme Court has stated that disclosing allegedly privileged materials to a trial court to determine the merits of a claim of
privilege does not end the privilege. In camera inspection is a common judicial practice. In this context, and in many others such as
claims of state secrets, it preserves the essence of claims of confidentiality and privilege at the same time as it controls excessive and
improper claims.
SHOULD SUBJECT PRIVILEGE CLAIMS TO CASE-BY-CASE EVALUATION
Ronald Goldfarb, Attorney, 2009, In Confidence: When to Protect Secrecy and When to Require
Disclosure, p. 242
Objections to demands for evidence may be based on claims of confidentiality . But ultimately, when there is a
conflict, the decision is not for the parties to make but should be made by the presiding judge; it should not be based
on some rule of privilege that takes the decision out of the decision-making process. The guiding principle
should be whether the overriding public interests requires the protection of confidentiality or the disclosure
of the testimony or documents in contention. A mode for such an approach is found in the DC statute mentioned in chapter
7 that permits judges to decide when the interests of public justice warrant protecting a witness from legal process.
PRIVILEGE PITS TWO IMPORTANT SOCIAL INTERESTS AGAINST EACH OTHER
Bankim Thanki, Queens Counsel, 2011, The Law of Privilege, Second Edition, p. 2
The privilege therefore involves an interaction or more accurately a clash, between competing public interests. Lord
Nicholls identified the two interests in R v Derby Magistrates Court, e p B.
"The public interest in the efficient working of the legal system requires
that people should be able to
obtain professional legal advice on their rights and liabilities and obligations. This is desirable for the
orderly conduct of everyday affairs. Similarly, people should be able to seek legal advice and assistance in connection with
the proper conduct of court proceedings. To this end communications between clients and lawyers must be uninhibited...
The other aspect of the public interest is that all relevant material should be available to courts when
deciding cases. Courts should not have to reach decisions in ignorance of the contents of documents or
other material which, if disclosed, might well affect the outcome ."
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Attorney-Client Privilege Not Essential to Constitutional
Rights- Generally
ATTORNEY-CLIENT PRIVILEGE NOT ESSENTIAL TO RIGHT TO REPRESENTATION -LEGITIMIZES LAWYERS TO ACT IN UNJUST AND IMMORAL WAYS
Thane Rosenbaum, Law Professor Fordham University & Novelist, 2004, The Myth of Moral Justice:
Why Our Legal System Fails to Do What's Right, p. 126-7
In an article in the New York Times, Lawrence J. Fox, a lawyer in Philadelphia, was quoted as saying, "Confidentiality is where the
rubber meets the road. If clients aren't assured of confidentiality, they tend to withhold information. If they don't share everything, we
won't be able to defend them as well."
But is that really true? Do people visit lawyers only because they have a secret and want to be able to confide in
someone who can give them advice on how to ensure that the secret remain secreted, forever? Or do they
come to lawyers because they have a problem, and they are hoping that the attorney will be able to find a
solution to the problem, and one of those solutions might actually be the unburdening of the secret itself?
Lawyers mistakenly overestimate the importance of the privilege to their clients. Many people aren't even aware
of the privilege until their attorney advises them of it. Despite what lawyers believe, the privilege isn't the main draw of
their profession. It's only an ethical byproduct of the job, supported by self-governing rules that distance
lawyers from decent-thinking, moral men and women.
So then why should legal ethics override private morality? The ethical duties of the legal profession are
being shamelessly abused in ways that prevent lawyers from doing the right thing .
PRIVILEGES NOT GIVEN SAME LEVEL OF PROTECTION AS EXCLUSIONARY RULES
Ronald Goldfarb, Attorney, 2009, In Confidence: When to Protect Secrecy and When to Require
Disclosure, p. 30-1
There is a difference between privilege rules and exclusionary rules under the First, Fourth, and Fifth Amendments.
The constitutional exclusionary rules are designed to discourage government misconduct--breaking into
someone's home is an illegal search; coercing a confession violates the self-incriminating clause--even at the cost of losing credible
evidence. The evidence seized or coerced may be probative (drugs found on the premises) or questionable (a
confession made under duress may be inaccurate). Like the privilege rules, these exclusionary rules exist to promote a social policy.
But unlike privileges, these constitutional exclusionary rules cannot be tampered with by courts and
legislatures. Privileges are designed to encourage relationships; constitutional rights exist to discourage
government misconduct. The former may be conditional; the latter are close to absolute.
NO EMPIRICAL PROOF THAT THE PRIVILEGE IS NECESSARY FOR OPEN
COMMUNICATION WITH AN ATTORNEY
Ronald Goldfarb, Attorney, 2009, In Confidence: When to Protect Secrecy and When to Require
Disclosure, p. 64-5
Professor Imwinkelried's exhaustive examination of the philosophical underpinnings of the attorney-client
privilege concludes that the instrumental rationale, although the majoritarian view over time, was based on
anecdotal, self-serving, and empirically unsupported proof. The relatively few recent (1960, 1980) studies on
the causal relation between clients' disclosures to attorneys and the assurance of a later privilege are
inadequate and exaggerated, and thus misplaced, Professor Imwinkelried concludes. That said, he does not question the overall
wisdom of the rule, only the rationale for it. Others have questioned the rule's wisdom, noting that criminal defense
attorneys invariably do not want clients to be totally open with them, fearing that if they (the attorneys) know
about guilty conduct, they may be prevented from pursuing avenues of defense.
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Attorney-Client Privilege Not Essential to Effective Defense
TRUTH-TELLING UNDERMINES EFFECTIVE DEFENSE
Albert W. Alshuler, Law Professor-Yale, 2003, "Law and Truth: The Lawyer's Responsibility to the
Truth: Lawyers and Truth-Telling," 26 Harv. J.L. & Pub. Pol'y 189, p. 189
Some lawyers say they never know what the truth is--not even when a client has confessed his guilt. Even more reject the
conventional wisdom that a lawyer should describe the attorney-client privilege to a client and press the
client hard for the truth to avoid being surprised at trial. These lawyers don't want their clients to level with
them. Not knowing the truth makes it easier to avoid the ethical issue.
OPEN COMMUNICATION WITH ATTORNEY NOT KEY TO EFFECTIVE
REPRESENTATION
Fred C. Zacharias, Law Professor Cornell Law School, 1989 "Rethinking Confidentiality," 74 Iowa L.
Rev. 351, p. 366
Stated broadly, the claim that lawyers can be effective only when informed of all relevant facts is simply
untrue. Attorneys do without information in a broad variety of contexts. To make sense, the argument in support of
confidentiality must thus be redefined as follows: Lawyers whose clients hide information are likely to perform less ably. By
encouraging client disclosure through secrecy guarantees, the state protects clients who otherwise would
jeopardize their case by withholding information.
Professor Morgan long ago questioned the need to protect uncooperative or deceitful clients. The client who
receives bad advice because he fails to inform the lawyer has only himself to blame. Alternatively, if the client
lies to the lawyer and later finds himself confronted by the truth, the government has little reason to aid the
client. The law should probably not be written for the benefit of liars or perjurers.
OPEN COMMUNICATION NOT NECESSARY FOR EFFECTIVE REPRESENTATION
Fred C. Zacharias, Law Professor Cornell Law School, 1989 "Rethinking Confidentiality," 74 Iowa L.
Rev. 351, p. 367
If the client does withhold particularly embarrassing items, it is not clear that the representation will be
significantly affected. In some settings, lawyers actually would prefer not to be told everything the client
knows. Even a lawyer who ideally would like to know all relevant facts often can provide good legal advice
based on partial information. Studies suggest that criminal defendants rarely are frank with their lawyers. Yet the
criminal justice system relies on the presumption that these clients are nevertheless fairly and well
represented.
SOCIETAL INTERESTS OUTWEIGH "OPEN COMMUNICATION" BENEFIT OF PRIVILEGE
Fred C. Zacharias, Law Professor Cornell Law School, 1989 "Rethinking Confidentiality," 74 Iowa L.
Rev. 351, p. 367
I do not suggest that confidentiality rules have no effect on client forthrightness or the quality of representation. But in the abstract, it
is difficult to determine the extent of any effect. If the number of clients needing and deserving the
protection of absolute rules are indeed few, the interest in "assuring effective representation" may be
outweighed by society's alternative interests in allowing limited disclosures.
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36
Attorney-Client Privilege Not Essential to Constitutional
Rights - Privacy
CONFIDENTIALITY DISTINCT FROM PRIVACY
Ronald Goldfarb, Attorney, 2009, In Confidence: When to Protect Secrecy and When to Require
Disclosure, p. 22
This evolving right of privacy is distinct from confidentiality, though the terms are sometimes intermingled . The
term privacy is used to describe general demands for anonymity, control over one's identity, selfdetermination, ownership of personal data, and the right to be left alone; confidentiality refers to keeping
personal secrets and information private.
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Attorney-Client Privilege Not Essential to Constitutional
Rights - Zealous Advocacy/Adversarial System Bad
ZEALOTRY EXACERBATES ALL FORMS OF EVIL
Thane Rosenbaum, Law Professor Fordham University & Novelist, 2004, The Myth of Moral Justice:
Why Our Legal System Fails to Do What's Right, p. 129
Zealotry is bad. It is a source of evil. Actually, it is the highest fulfillment of evil, because whatever form it takes,
and to whatever reason it owes its existence, it is harmless without the engine of zealotry that turns it from mere
suppressed feelings into animated, irrepressible rage. Most of us would say that moderation, tolerance, and
unselfish acts of caring and connection are values to which people should aspire. Zealotry is for people
who are out of control in their beliefs, completely locked into their own truths, and out of touch with the rest of the planet.
They place value only on their own values. Their loyalties are unshakeable within their secret societies. The world makes
no sense to them without the nicotine kick that comes from attaching a healthy dose of zeal to a mission otherwise benign.
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Attorney-Client Privilege Not Essential to Adversary System
ADVERSARIAL SYSTEM DESIGNED TO FIND THE TRUTH SOMETIMES OBSCURES IT
Daniel Walfish, Law Clerk for Southern District of NY, 2005, "Making Lawyers Responsible for the
Truth," 35 Seton Hall L. Rev. 613, p. 623-4
A second strand of argument against the proposition that lawyers should be responsible for the truth is that
an adversary system designed to arrive at the truth will sometimes obscure the truth. Uviller contended that
defense counsel cannot necessarily know or recognize the truth and that Frankel "proceeds from the assumption that the shining Truth
is known or knowable by all diligent lawyers acting in good faith." According to Uviller, defense counsel might not
know or recognize "the truth" because cases are tried not on "the truth," but on evidence, which is rarely
unambiguous. A defense should not be shaped by the defense lawyer's personal evaluation of the true state
of affairs, for it is not the defense lawyer's job to evaluate credibility.
Even when a defense lawyer knows to a certainty which facts are true and which are not, there is still an
interest, Uviller suggests, in holding the state to its burden of proof. The adversary system is designed to
prevent the conviction of innocent persons at the expense of acquitting some guilty ones. This goal is served by
having a defense lawyer relentlessly challenge the state's case, even when the defense lawyer knows that the case has merit.
Uviller also argued that there is a difference between "ultimate and ... instrumental facts." He used the example of a lawyer defending
a man whom the lawyer believes committed the robbery with which he is charged. If the defense attorney believes that a
witness' testimony is false, "attacking that witness serves the instrumental truth but may defeat the ultimate
truth." A defender of Frankel's proposition, according to Uviller, must choose between prohibiting truthdefeating tactics and allowing defense counsel to keep all evidence truthful . Uviller's position, however, appears to
be flawed. Frankel did not claim that a lawyer must countenance untruthful means in the service of truthful ends. Frankel's proposal
would not have prevented a lawyer from attacking a false witness, even if the result were to prevent the emergence of the ultimate
truth.
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39
Attorney-Client Privilege Not Essential to Autonomy
COSTS TO JUSTICE OUTWEIGH PROTECTION OF INDIVIDUAL AUTONOMY
Ronald Goldfarb, Attorney, 2009, In Confidence: When to Protect Secrecy and When to Require
Disclosure, p. 227-8
One can also question the humanistic rationale for privileges. Exceptions are condoned in numerous instances, so one's
conclusions about what is humane is subjective and elastic. What is the harm if people in therapy or in
confession or in other professional consultations were to lose the comfort of knowing that their
communications would always remain confidential and had to accept that their communications could conceivably,
occasionally, become public? Is that not a reasonable part of their social contract, a fair price to pay for an
adversary system, a system to which they themselves may need to resort? Our social contract requires concessions,
on both sides, in all policy conflicts. The claim that invasions of personal autonomy reflect an inhumane value
system ignores the potential greater good that might result from disclosure . In a balanced system,
confidentiality would be ensured unless a judge determined that more profound reasons were demonstrated
for disclosure in that one incident.
GROUNDING PRIVILEGE IN AUTONOMY TERMS MEANS THERE IS NO REASONABLE
LIMIT ON IT
Ronald Goldfarb, Attorney, 2009, In Confidence: When to Protect Secrecy and When to Require
Disclosure, p. 228
The recent trend has been to rationalize privileges -- and to qualify them-- by applying the humanistic rationale.
That notion is versatile, has constitutional references, and reflects modern inclinations to protect personal information as
an important aspect of individual decency, human dignity, and democratic values. Privacy rights generally are a
twentieth-century phenomenon, and the preservation of privileged communications on the basis of moral, humanistic grounds is part
of that trend. Protecting confidentiality allows citizens to consult with experts about important life issues
intelligently and independently, without fear of government intrusion. These values have roots in the Bill
of Rights.
The problem with a qualified, undefined privilege created under the merging humanistic rationale is that it
loses predictability -- an important value in the law. What confidential relationship is not humane and a
useful part of one's autonomy? Relationships with family members, teachers, fiduciaries, and agents in business, consultants
of all kinds, friends, customers, banks, architects, coaches, all might qualify under such an amorphous rationale. Why protect one and
not another? Foreign countries, following less democratic and more inquisitorial justice systems, have expanded their laws of
privilege beyond ours--to cover families, for example. It may be viewed as impractical to have ad hoc rules, but arguably post ho
rules are just as objectionable.
PERSONAL AUTONOMY AND DIGNITY DO NOT JUSTIFY PRIVILEGE
Fred C. Zacharias, Law Professor Cornell Law School, 1989 "Rethinking Confidentiality," 74 Iowa L.
Rev. 351, p. 367-9
Absolute confidentiality can enhance lawyer client relations. It often makes the client feel as if the lawyer is a true
fiduciary, with loyalty to no one other than the client. It also avoids the unseemly situation in which a lawyer induces the client to be
open and then informs on the client.
But these considerations alone do not justify the strictest of rules. In an ideal world, the government would
promote the relationship between clients and all agents. But that does not mean it is essential to preserve
confidentiality to an extreme degree. Even if we accept client "autonomy" as an important value, there are
limits to how comfortable we want clients to be in the belief that their lawyers will never take a stand
against them. Arguably, client distrust will increase if the lawyer insists that she will always act in accord with the client's wishes.
So long as the attorney informs the client at the outset of the relationship that she may feel compelled to disclose particular types of
information, subsequent disclosures are not unseemly. The client may more readily accept her as an ally within the defined
boundaries, both because the lawyer has exhibited integrity and because the limitations on the alliance make the total package more
believable.
The argument that confidentiality gives "appropriate regard" to client dignity is equally vulnerable . For one,
the same argument applies to all professions. More importantly, too much secrecy can be counter-productive. As the
Supreme Court implicitly recognized in approving a lawyer's threat to disclose a client's proposed perjury, the lawyer who
contributes to the notion that the client can get away with anything demeans the client as a moral
individual.
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40
Attorney-Client Privilege Fails: Inconsistently Applied
NO CONSISTENT "ATTORNEY-CLIENT PRIVILEGE" NOW
Thomas P. Glynn, Law Professor, Seton Hall, 2002, "Federalizing Privilege", 52 Am. U.L. Rev. 59, p. 60
The attorney-client privilege is a mess. One might expect a few unresolved issues because there is no national law
governing the privilege, no codification of the privilege in the federal courts, and little leadership from the
Supreme Court on the subject. Yet the conflict and confusion runs deeper and is more widespread than many
observers realize. Unlike most other areas of the law of evidence, there is a lack of convergence in key aspects of the
attorney-client privilege. The law of privilege varies greatly from state to state, federal circuit to federal
circuit, and context to context, and its application often is unclear within particular jurisdictions and even
within particular cases. Most strikingly, the conflicts and ambiguities are not relegated to the margins.
Fundamental issues, such as the requirements of confidentiality, the parameters of the corporate attorney-client privilege, and the
scope of the crime-fraud exemption are disputed or largely unresolved. Moreover, choice-of-law principles governing the
choice between conflicting privilege doctrines of interested jurisdictions simply exacerbate the
unpredictability because these principles vary widely and often default to application of the law of the
forum.
CURRENT ATTORNEY-CLIENT PRIVILEGE HIGHLY UNCERTAIN
Thomas P. Glynn, Law Professor, Seton Hall, 2002, "Federalizing Privilege", 52 Am. U.L. Rev. 59, p.
85-7
In order for privilege protections to be reasonably certain to a competent attorney looking forward from the time of the
communication, the protections must satisfy at least three conditions. First, the scope of the protection that the
privilege affords must be clear: confusing, ambiguous, or flexible privilege standards do not offer predictable protection.
Second, reasonably certain protections must be generally - or at least predictably - applicable. The attorney must
have confidence that protections will apply regardless of the forum - state, federal, or nonjudicial - and the nature of
the proceeding or substantive claims that ultimately give rise to assertion of the protections. Finally, privilege protections
remain wholly uncertain if they are qualified or otherwise subject to post hoc abandonment or revocation.
The current privilege regime fails to satisfy each of these conditions in many circumstances. There is a
substantial amount of confusion over a number of fundamental aspects of the attorney-client privilege.
Indeed, there are numerous, lingering ambiguities and unresolved doctrinal issues within particular
jurisdictions. In addition, there is no guarantee that the privilege protections afforded in one jurisdiction,
forum, or type of proceeding will apply in another. To the contrary, there is no generally applicable set of
privilege rules and, perhaps surprisingly, limited convergence on key aspects of attorney-client privilege
doctrine. These significant inter-jurisdictional conflicts in the law, combined with varying and often
unpredictable governing choice-of-law principles, result in uncertain protections. Moreover, modern business,
litigation, and conflict resolution practices make it increasingly difficult for an attorney to predict, at the time of a communication,
whether the allegedly privileged status of the communication will be challenged in a particular state or federal court, in a proceeding
governed by state or federal privilege law, or in a nonjudicial forum, such as arbitral, regulatory, or congressional proceedings.
Finally, in many circumstances, privilege protections are tentative or qualified : substantive privilege doctrine
sometimes allows decision makers to override, abrogate, or ignore privilege protections, while at other times,
attorneys or their clients waive the privilege permanently by involuntary disclosure or by stumbling into one of the traps for the
unwary lurking below the surface of apparent protection.
Thus, the protections that the modern privilege affords often are uncertain . The story of the uncertainty in today's
privilege most appropriately begins in the early 1970s, when Congress had a real opportunity to provide national leadership on
privilege doctrine but chose not to act. Congress had its reasons for not taking the lead a quarter century ago, but, in hindsight, its
inaction ultimately was a major cause for the current, intolerable state of privilege doctrine. Since then, continuing
disagreements among state and federal jurisdictions, judicial inattention, flawed judicial policy making, and
changing economic, litigation, and dispute resolution practices have contributed to the problem.
TREMENDOUS UNCERTAINTY AND CONFUSION IN APPLYING PRIVILEGE AND ITS
EXCEPTIONS
Thomas P. Glynn, Law Professor, Seton Hall, 2002, "Federalizing Privilege", 52 Am. U.L. Rev. 59, p.
98-9
Intra-and inter-jurisdictional conflicts and confusion in the law of the attorney-client privilege are rampant.
Indeed, it would be impossible to discuss all of the ways in which privilege law is unresolved or disputed in
the courts. However, by focusing on a few areas of ambiguity and disagreement, I hope to demonstrate the depth and scope of the
problem. The areas of confusion and dispute fall into three general categories: (1) the basic elements of the
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41
privilege; (2) the crime-fraud exception; and (3) the ways in which the privilege protections may be
waived, abandoned, or ignored.
Although most of the discussion focuses on inter-jurisdictional conflicts, many jurisdictions have not resolved these issues
internally. Indeed, the foregoing review of the Supreme Court's privilege decisions shows how few issues have been resolved
definitively in the federal system. More generally, these issues receive limited appellate attention because privilege
determinations usually occur at the discovery stage of litigation, and hence are interlocutory. Thus, in most
federal circuits and most state court systems, privilege determinations are rarely subject to immediate appeal. In addition, unless
privilege decisions are appealed immediately, they are likely to evade appellate review because most cases
are resolved before final judgment, and if not, some privilege issues may be mooted once "the cat is out of the bag."
Definitive appellate resolution of lingering controversies, therefore, is often elusive.
SUBSTANTIAL UNCERTAINTY ABOUT WHEN PRIVILEGE APPLIES -- SINGLE WRONG
CALL CAN DESTROY IT
Thomas P. Glynn, Law Professor, Seton Hall, 2002, "Federalizing Privilege", 52 Am. U.L. Rev. 59, p.
129-31
Once the three previous subsections are considered together, the largely uncertain and unpredictable nature of the attorney-client
privilege emerges. There is little Supreme Court leadership on privilege doctrine, significant inter-and intra-
jurisdictional uncertainties and confusion in substantive privilege doctrine, and differing and unreliable
choice-of-privilege-law principles. The conflicts and confusion in privilege doctrine are not relegated to the outer edges;
rather, many of the disputes address issues lying at the heart of the protection . In addition, it is becoming harder
for attorneys and clients to predict at the time of the communication the fora - judicial or otherwise - in which
clients ultimately may seek privilege protection.
And it gets worse. The uncertainty is magnified by the fact that, once allegedly privileged communications
are revealed, they may lose the benefit of the privilege, even if the court's decision to compel disclosure in
the first proceeding was erroneous or the protection afforded by the original forum is weaker than
protections available in other fora. To illustrate, when a party asserts the privilege unsuccessfully, the asserting party must
disclose those communications to the adverse party. At that point, the communications are no longer confidential. As a formal matter,
this occurrence calls into question whether the party may assert in later proceedings that the communications are confidential,
particularly if the content is available to the public. Some courts have held that parties can no longer claim privilege if, as a practical
matter, third parties or the public know of the allegedly privileged communications. Moreover, even if a party's legal right to claim
privilege is not lost upon compelled disclosure, the cat is out of the bag: the confidences are no longer secret, and, in complex
litigation, adversaries in later proceedings may have gained the benefit of knowing such confidences whether or not those
communications will be admissible at trial. Thus, a single judge, administrative law judge, arbitrator, commissioner,
or legislator may destroy privilege protections permanently. This is particularly troubling given that
erroneous privilege decisions are more likely while privilege law remains unclear.
INCONSISTENT NATURE OF PRIVILEGE PRECLUDES JUSTICE ADVANTAGES
Thomas P. Glynn, Law Professor, Seton Hall, 2002, "Federalizing Privilege", 52 Am. U.L. Rev. 59, p. 62
Some are content to let parties and courts continue to hash out privilege doctrine on a case-by-case, jurisdiction-by-jurisdiction basis.
That is what Congress did in 1975, when it chose to leave the development of privilege doctrine to the courts. Continuing on this
course makes no sense, however. First, re-litigating the parameters of privilege doctrine over and over again creates
enormous transaction costs. More importantly, the uncertainty that this approach has produced defies the principal
justification for the modern privilege. By shielding attorney-client confidences from discovery, the
privilege is supposed to promote communication and candor between the attorney and client, which, in
turn, is supposed to foster compliance with the law, facilitate the effective administration of justice, and
produce other social benefits. Sufficient certainty or predictability that these confidences will be protected
from disclosure is essential to promote, and avoid chilling, client candor. Indeed, an uncertain privilege offers
nothing but harm: it inhibits access to the truth and creates enormous transaction costs while failing to enhance
attorney-client communication and candor. Thus, today's highly uncertain privilege is intolerable.
CERTAINTY IN ATTORNEY-CLIENT PRIVILEGE PROTECTION VITAL TO FOSTERING
OPEN COMMUNICATION
Thomas P. Glynn, Law Professor, Seton Hall, 2002, "Federalizing Privilege", 52 Am. U.L. Rev. 59, p.
73-5
The utilitarian justification for the attorney-client privilege is premised on the assumption that providing
protection for attorney-client confidences will enhance client candor or, at a minimum, foster greater attorney-client
communication. Although most courts, practitioners, and commentators accept this assumption outright, it
is both disputed and empirically unverified. Skeptics therefore remain, even though most aspects of the modern
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privilege - including the corporate privilege - are almost certainly here to stay. Despite
the lingering controversy, the
privilege cannot enhance candor or communication if the protection it affords is uncertain. Thus, for society
to reap benefits from the privilege, it must afford sufficiently certain protection for attorney-client
communications.
To promote greater candor and communication, privilege protection must remove the disincentives for
clients to speak freely with their attorneys. Adherents to the utilitarian justification of the attorney-client privilege rely on
the "common sense" notion that clients would be unwilling, or at least far more hesitant, to discuss embarrassing, unpleasant, and
otherwise harmful matters in detail with their attorneys if such discussions could be used against the client in a pending or later
proceeding. Moreover, attorneys would be reluctant to seek or allow full disclosure from clients if such disclosures ultimately could
harm the clients' interests.
This greater willingness on the part of clients and attorneys to engage in full and frank communications
depends upon their belief that the communications will be protected. If either client or attorney has
significant doubts about the communication's protected status, each person will be less willing to engage in
the interchange. Thus, in order to enhance communications, the privilege must provide protection that is
sufficiently certain to allay client and attorney concerns regarding future disclosure.
Courts and commentators adhering to the view that the privilege promotes attorney-client candor and communication are virtually
unanimous in agreement on the need for a concrete privilege. Indeed, the Supreme Court premised its decision in Upjohn
largely on the need for a predictable and certain privilege:
If the purpose of the attorney-client privilege is to be served, the attorney and client must be able to predict
with some degree of certainty whether particular discussions will be protected. An uncertain privilege, or one
which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all.
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Attorney-Client Privilege Fails: Does Not Deter Misconduct
ATTORNEY-CLIENT PRIVILEGE DOES NOT DETER MISCONDUCT
Fred C. Zacharias, Law Professor Cornell Law School, 1989 "Rethinking Confidentiality," 74 Iowa L.
Rev. 351, p. 369-70
The most appealing secondary justification for attorney-client confidentiality is that helping lawyers obtain
information enables them to advise clients against committing improper acts or filing frivolous claims. Yet the
same empirical questions that plague the systemic justification for strict confidentiality are present here. Confidentiality
probably does allow some lawyers to prevent some misconduct before it occurs. But adding limited
exceptions might not substantially affect lawyers' ability to dissuade improper acts.
Moreover, it is unclear that strict confidentiality is what provokes client candor about potential improprieties.
In most cases, lawyers impress upon clients the importance of full disclosure to the lawyer's ability to evaluate the case. This warning
alone may procure the type of information lawyers need to prevent misconduct. As a factual matter, the additional disclosures strict
confidentiality fosters may only marginally improve the lawyer's ability to enforce the law.
Enabling clients to discuss planned misconduct with impunity sometimes might even promote misconduct.
In consulting with clients, lawyers often serve the function of psychiatrist, social worker, or priest-confessor. They provide
some clients with a psychological outlet that helps the clients persist in misconduct. Empirical research
might show that lawyers play this role only rarely, that the risk of promoting misconduct deserves little
weight. Yet proponents of the dissuading misconduct rationale have not relied on such evidence ; they do not
even consider strict confidentiality's possible costs.
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Attorney-Client Privilege Bad: Serves the Needs of the
Powerful
PRIVILEGE PROTECTS THE ELITE -- ANTI-DEMOCRATIC
Ronald Goldfarb, Attorney, 2009, In Confidence: When to Protect Secrecy and When to Require
Disclosure, p. 232
Privileged communications have historically been a privilege of privileged groups - lawyers, doctors, the church,
the state. Those groups' members should be governed by their own rules, but those rules should not
necessarily take precedence in judicial proceedings or when public dangers could be prevented . The very
word privilege connotes an undemocratic preference that is inconsistent with American values in the twentyfirst century and is at war with the search for truth. Powerful institutions--the church, the state, professions -- along with
other institutions should be encouraged to promulgate rules and follow practices that encourage and protect confidentiality, but to
rethink the issue of privilege.
ATTORNEY-CLIENT PRIVILEGE DESIGNED TO PROTECT THE POSITION OF THE
POWERFUL
Harvard Law Review, 1985, "Privileged Communication: I. Introduction: The Development of
Evidentiary Privileges in American Law," 98 Harv. L. Rev. 1450, p. 1493-4
Power Theory as Explanation. -- The power theory condemns both the traditional justification and the privacy rationale as incoherent
rationalizations for an incoherent body of law. It asserts instead that the real roots of privilege law lie in the power of
those benefiting from it. In its simplest form, the power theory seeks not to justify privileges, but to explain why they exist
when so few, if any, are justifiable. It explains privilege law not as an effort to encourage communications or to
protect privacy, but as special treatment won by the power of those privileged .
Despite the radical overtones of the power theory, many mainstream commentators have acknowledged the role of
political power in the development of privilege law. Indeed, what may be the most striking feature of privilege law is the
transparency of the connection between legal doctrine and political influence. The very word "privilege" suggests the
protection of a favored elite. In fact, early English courts explicitly limited privileges to the upper classes .
Those enjoying privileges today constitute some of the most politically powerful professions and
institutions in America: lawyers, doctors, the Church, the news media, and the government . Indeed, both
contemporary and historical circumstances surrounding the making of privilege law suggest a power basis.
The vast majority of new privileges have been created by statute, a process that certainly requires the exercise of political power.
Congress vetoed the section of the Proposed Federal Rules of Evidence, that would have constricted or abolished most privileges,
mainly because of the intense lobbying of protected groups, despite the fact that the Proposed Rules were intended to make privilege
law conform to the traditional justification.
PRIVILEGE IS A CONCESSION TO POWER AND ELITISM
Ronald Goldfarb, Attorney, 2009, In Confidence: When to Protect Secrecy and When to Require
Disclosure, p. 225
Some critics have claimed that the very notion of privilege is a concession to power and elitism. An authoritative and
irreverent treatise advised that privilege is just that--it gives certain classes of people the special right to refuse to
respond to legitimate government tribunals performing their proper functions, in order to protect their
clients' secrets. For working-class folks unable to afford the attentions of those professionals, "the poor
man's only privilege is perjury." The most democratic rule, it has been suggested, is that no person should have
the right to refuse to testify on the basis of privilege.
Another treatise concluded that "privileges give real or fancy shelter or prestige to special groups of people ." Thus,
the hoi polloi who go to storefront tax preparers because they cannot afford accountants or attorneys, or the
poor person with emotional problems who seeks lay assistance because he cannot afford a psychiatrist, are
not protected if their helpers' testimony is sought. Nor is the follower of an unorthodox or unrecognized religious group
protected with the sympathetic understanding provided to established churches. The allocation of privileges "tends to follow the
distribution of political power in contemporary society," one commentator noted. "Powerful institutions" get the privilege
and their clients are the beneficiaries.
REJECTING OF THE PRIVACY RATIONALE DEMONSTRATES THAT PRIVILEGE IS
REALLY ABOUT PROTECTING THE POWERFUL
Harvard Law Review, 1985, "Privileged Communication: I. Introduction: The Development of
Evidentiary Privileges in American Law," 98 Harv. L. Rev. 1450, p. 1495
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One can perhaps find more subtle support for the power theory by analyzing the evolution of privilege
justifications. Historically, courts, acting on the theory that the law should respect the honorable obligations
of gentlemen, often accorded deference to any gentleman who had promised confidentiality . The demise of this
historical justification can arguably be linked to the increasing importance of egalitarianism as a political force. The traditional
justification, which both rejected and replaced the historical justification, might then be best understood as a reaction against a
rationale that starkly relied on status and power as means of distinguishing the legally privileged from the legally non-privileged. By
denying the relevance of any individual interest, which might vary more obviously with the power of that
individual, and appealing solely to social policy, the traditional justification tended to obfuscate the
influence of power on privilege law. The same phenomenon might explain judicial reluctance to adopt a privacy rationale.
Limiting privileges to particular relations under the privacy rationale would require making normative
distinctions between the relative needs or deserts of various groups, distinctions that would have more
evident political content, and thus be more delegitimating, than the "public policy" distinctions made under
the traditional justification.
PRIVILEGE RULES PROTECT THE RICH
Bankim Thanki, Queens Counsel, 2011, The Law of Privilege, Second Edition, p. 10
The underlying public interest was cogently expressed by Sir Gordon SLynn in AM&S Europe Ltd v European Commission, in a
passage cited with approval by Lord Scott and Lord Carswell in Three Rivers 6. The Advocate-General stated that the privilege:
"...springs essentially from the basic need of a man in a civilized society to be able to turn to his lawyer for
advice and help, and if proceedings begin, for representation; it springs no less from the advantages to a society
which evolves complex law reaching into all the business affairs of persons, real and legal, that they should
be able to know what they can do under the law, what is forbidden, where they must tread circumspectly,
where they run risks. "
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Attorney-Client Privilege Bad: Serves the Needs of the
Attorney
ATTORNEY-CLIENT PRIVILEGE MAINLY ABOUT PRIVILEGING THE POSITION OF THE
ATTORNEY
Thane Rosenbaum, Law Professor Fordham University & Novelist, 2004, The Myth of Moral Justice:
Why Our Legal System Fails to Do What's Right, p. 119-20
Another example of the way in which the public trust in lawyers is shaken by the stigma of immoral justice
is found in the area of the attorney-client privilege. This piety of the profession -- that confidences are
privileged and cannot be revealed -- is an unchallenged ethical requirement among lawyers , uncompromising
and sacrosanct, an absolute duty owed by an attorney to his client.
But in faithfully carrying out this duty, lawyers, in essence, become secret keepers, their clients' confidences secured,
each resting on top of one another. In the lawyer's mind, the privilege is an essential service they provide; it's
what makes them special.
In Bleak House, Tulkinghorn, the attorney who represents Sir Leicester and harbors the dark secret of his client's wife Lady Dedlock,
is referred to throughout the novel as a bloodless, calculating, sinistter secret-keeper. He's good at his job, but everyone winces when
he enters a room. Lawyers maintain that the attorney-client privilege is necessary. It ensures that they are
fully informed of everything relevant to their client's case, which in turn, enables them to assemble the best
legal strategy. And lawyers, because they are emotionally detached and objective professionals, insist that these confidences are
critical only for representation purposes. They claim to have no personal investment in knowing a client's private
business. Yet Dickens is not so sure. Tulkinghorn, for instance, is depicted as a man who enjoys knowing the intimate details of a
good secret. He gathers them up for his own amusement, and for use as possible leverage against his clients or others. The
privilege may, therefore, truly be the lawyer's privilege to exercise, cunningly gathered with the pretense of
professional duty, but, like Tulkinghorn, retained and manipulated with sheer glee, hardly forgotten at the end of the
business day.
ATTORNEY-CLIENT PRIVILEGE RULES OPERATE TO PROTECT ECONOMIC INTERESTS
OF ATTORNEYS
Fred C. Zacharias, Law Professor Cornell Law School, 1989 "Rethinking Confidentiality," 74 Iowa L.
Rev. 351, p. 359-61
Confidentiality rules also may benefit an attorney financially . For example:
A tax lawyer learns, from working with the books of a client, that the client has received large sums from the Russian government.
The client will only say that the money is income for services rendered. The lawyer knows that the client has access to classified
government documents.
A lawyer forbidden to disclose need not fear repercussions if her affiliation with the client's actions later
becomes public. When questioned about the propriety of assisting the client, the attorney can hide behind
the nondisclosure rules. A smile or "no comment," suggesting that the questioner would act like the lawyer "if he only knew,"
enables the attorney to avoid the cost of bad publicity and community disapproval of her conduct. In contrast, when silence
subjects lawyers to accusations of wrongdoing, most codes authorize lawyers to speak.
Strict confidentiality provisions promote and reinforce American society's perception of lawyers as hired
guns. Public acceptance of the hired gun model enables the lawyers in the hypothetical cases to take on (and accept payment for)
distasteful cases. Indeed, the presence of confidentiality may explain why clients are willing to pay high fees to
lawyers when non-lawyers might be able to provide similar services more cheaply.
The extent to which the profession's personal or economic interests have influenced the scope of confidentiality
rules can never be known. Yet their mere existence leads one to wonder whether the attorney-drafters of the
strict codes -- perhaps even unintentionally -- have overemphasized the systemic justifications for confidentiality
or undervalued the social benefits of less restrictive rules. A code that explicitly acknowledges lawyers' right to follow
their own moral instincts despite a financial risk might produce a more ethical bar that can serve society better. The following sections
thus evaluate the strength of the traditional justifications for strict confidentiality and the societal costs of avoiding exceptions.
EXCEPTIONS TO ATTORNEY-CLIENT PRIVILEGE SERVE THE INTERESTS OF LAWYERS
WHILE IGNORING UNJUST OUTCOMES
Ronald Goldfarb, Attorney, 2009, In Confidence: When to Protect Secrecy and When to Require
Disclosure, p. 84
The public purposes behind the attorney-client privilege are wise and reasonable. Yet there are
understandable, if self-serving, exceptions to the confidentiality rule that allow attorneys to reveal client
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47
communications in malpractice cases against them or in fee disputes. For example, the trial attorney for the
terrorist Timothy McVeigh was allowed to disclose confidential communications when, in appealing his case,
McVeigh accused him of providing an incompetent defense Might there not be further, equally rational, exceptions.
One cynic concluded that this exception to the attorney-client privilege reveals a hypocrisy: "Confidentiality
means everything in legal ethics unless lawyers lose money, in which case it means nothing. " Thus,
confidentiality is not enforced in a fee dispute, or in a complaint against an attorney by his client, but it
does prevent an attorney from exonerating an innocent defendant or finding a missing person .
Attorneys promote "needless secrecy," one critic argued, because confidentiality puts a premium on services
they are uniquely qualified to provide. This inhumane instinct is "a marketing strategy, more than an
ideology, in his critical judgment.
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AT: "Attorney-Client Privilege Critical Aspect of Professional
Ethics"
COMMITMENT TO STRICT CONFIDENTIALITY COMPROMISES ETHICS OF ATTORNEYS
Fred C. Zacharias, Law Professor Cornell Law School, 1989 "Rethinking Confidentiality," 74 Iowa L.
Rev. 351, p. 353
Whatever its benefits, however, strict confidentiality also has adverse effects. Inflexibility in the rules has produced
peculiarities in the law governing client secrets. More important, the tradition of strict confidentiality has helped teach
lawyers and clients to rationalize amoral representation. Lawyers must close their eyes to information that
might prevent harm to others or that violates the lawyers' own ethical and political beliefs. Rules
encouraging this persona inevitably affect lawyers' individuality and desire to consider ethics in other
aspects of their practice.
FAILURE TO JUSTIFY NECESSITY FOR STRICT CONFIDENTIALITY UNDERMINES
RESPECT FOR PROFESSIONAL ETHICS CODE
Fred C. Zacharias, Law Professor Cornell Law School, 1989 "Rethinking Confidentiality," 74 Iowa L.
Rev. 351, p. 353-4
Eminent commentators thus have called for empirical research testing the benefits of strict confidentiality and the
validity of its justifications. The academic community has, however, uniformly ignored the call. The scholarly inaction
stems, perhaps, from a "feeling" that the issues are more theoretical than real. For lawyers only rarely have to choose
between breaching a professional code and maintaining a morally questionable silence. Through persuasion,
refusal to undertake representation, or threats of withdrawal, lawyers often can convince clients to volunteer sensitive information.
The dearth of reported challenges to the application of confidentiality provisions suggests that disciplinary
committees may overlook well-intended violations of the letter of the rules.
Nevertheless, concrete situations exist in which strict confidentiality may conflict with society's interests .
Academia's refusal to question and test the operation of the rules in those cases is shortsighted . At a minimum,
it makes the bar look bad. In contrast, basing rules or exceptions on empirically provable contentions can
forestall the public perception that ethical regulations merely protect the guild.
ATTORNEY-CLIENT PRIVILEGE UNDERMINES PUBLIC RESPECT FOR ATTORNEYS
Fred C. Zacharias, Law Professor Cornell Law School, 1989 "Rethinking Confidentiality," 74 Iowa L.
Rev. 351, p. 375
To the extent strict rules cause lawyers to engage in "moral escapism," confidentiality also helps foster the
public notion that lawyers lack integrity. Let us think about the matter from the clients' perspective. They are told that
virtually anything they relate to the attorney will be kept a secret. If they wish to use the legal system to
harass an adversary, the lawyer will discuss the possibility with them seriously. If they wish to confess a
heinous misdeed they have committed in the past, they can get it off their chests without fear of reprisal. The
attorney will be happy to describe options, in secret, for getting around government regulations or contractual obligations -- to the
point of evaluating which of the options are illegal, which are not, and which are shady but unlikely to be punished. To the extent
litigation tactics are not "frivolous" or the product of bad faith, the lawyer may even be willing to strategize with the client about the
hardship and cost that discovery and other legal procedures can impose on an opponent and the likelihood that the burden will prompt
favorable settlement.
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Attorney-Client Privilege Fails: Weak Protection for
Adversarial System
ATTORNEY-CLIENT PRIVILEGE NOT ESSENTIAL TO ADVERSARY SYSTEM -- MANY
PROCEDURAL RULES UNDERCUT ZEALOUS PARTISAN ADVOCACY
Nancy J. Moore, Law Professor-Rutgers, 1985/1986, "Limits to Attorney-Client Confidentiality: A
'Philosophically Informed' And Comparative Approach to Legal and Medical Ethics," 36 Case. W. Res.
177, p. 214-5
A second objection to lawyer disclosure is that it would violate the duty of confidentiality. However, unlike party presentation
of evidence, confidentiality is not itself an essential element of the adversary system. The standard rationale
for confidentiality is utilitarian: Confidentiality encourages clients to give lawyers the information necessary
for effective advocacy. But this utilitarian reasoning ignores the already existing deterrents built into the
adversary system itself -- that is, those very rules of civil procedure designed to promote truthful verdicts.
Given these rules and the limited protection of the attorney-client privilege, it is difficult to see how an
extended duty of confidentiality effectively promotes client disclosures, when the client already knows (or
should know) that his lawyer will not countenance a false pleading or a failure to respond to proper discovery
requests. Although the criticism that under the draft proposal a lawyer "could not promise his client that his preliminary disclosures
might not injure his cause" is true, it is also true that a lawyer cannot truthfully make that promise even under the present rules.
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Utilitarian Framework Fails to Justify Attorney-Client
Privilege
DIFFICULT TO ASSESS THE BENEFITS OF THE PRIVILEGE
Thomas P. Glynn, Law Professor, Seton Hall, 2002, "Federalizing Privilege", 52 Am. U.L. Rev. 59, p.
72-3
Although almost no one advocates abolishing the attorney-client privilege in its entirety - indeed, it is too late in the game for that the utilitarian justification has its critics. Some argue that the costs of the privilege outweigh the purported
benefits in certain contexts, and others question whether the benefits are in fact real . For example, scholars
have questioned whether the corporate attorney-client privilege is necessary and whether it enhances social
welfare. Others may contend that the benefits of the privilege are too speculative to justify the costs. In addition,
judges and litigants, faced with privilege-created obstacles in a particular piece of litigation, may find the
privilege's harsh consequences unbearably difficult to accept.
The fact that the benefits of the privilege are extrinsic and speculative while the costs are intrinsic to the
particular dispute in which the privilege is asserted, combined with the sheer frequency of privilege claims,
assures that the privilege will remain controversial and difficult to apply. Most judges, law makers, attorneys, and
scholars tend to agree that the privilege is useful and important, but should be narrowly construed. There is far less agreement,
however, as to what exactly this means, either generally or in particular cases.
UNCERTAINTY UNDERMINES UTILITARIAN ADVANTAGES
Thomas P. Glynn, Law Professor, Seton Hall, 2002, "Federalizing Privilege", 52 Am. U.L. Rev. 59, p.
73-4
The utilitarian justification for the attorney-client privilege is premised on the assumption that providing
protection for attorney-client confidences will enhance client candor or, at a minimum, foster greater attorney-client
communication. Although most courts, practitioners, and commentators accept this assumption outright, it
is both disputed and empirically unverified. Skeptics therefore remain, even though most aspects of the modern
privilege - including the corporate privilege - are almost certainly here to stay. Despite the lingering controversy, the
privilege cannot enhance candor or communication if the protection it affords is uncertain. Thus, for society
to reap benefits from the privilege, it must afford sufficiently certain protection for attorney-client
communications.
DIFFICULT TO WEIGH THE COSTS AND BENEFITS OF ATTORNEY CLIENT PRIVILEGE
Ronald Goldfarb, Attorney, 2009, In Confidence: When to Protect Secrecy and When to Require
Disclosure, p. 29-30
The protection of confidential communications creates confounding conflict between competing societal
interests, not between right and wrong. It involves the rare instances in which secrecy is deemed so
important that it preempts the search for truth in the trial system. There are strong reasons to encourage confidentiality
between the parties so that important values--treatment, professional and legal advice, public information--are encouraged by the law.
Yet competing interests may be present--law enforcement particularly--and no legal system could exist if people could
claim that they are beyond the reach of the law because some higher public purpose is served through
preserving the secrecy of their relationships with their confederates . There is a cost-benefit calculus in
striking the appropriate balance between the need for evidence and the protection of privacy. But there is
no scientific logarithm for measuring the respective weight of these subjective values.
SHOULD CONSTRUE NARROWLY -- BENEFITS SPECULATIVE HARMS REAL
Thomas A. Demetrio, Past President Chicago Bar Association, 2000, "Trial Practice: Objection!
Attorney-Client Privilege--Oh Really?", 14 CBA Record, 49, p. 49
Dean Wigmore also warned against the danger of overextending the privilege:
'The 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. It ought to be strictly confined within the narrowest possible limits
consistent with the logic of its principle.'
8 Wigmore, Evidence Sec. 2291, at 554 (rev. ed. 1961).
UTILITARIANISM REQUIRES WEIGHING BENEFITS AGAINST HARMS TO SOCIAL GOOD
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Harvard Law Review, 1985, "Privileged Communication: III. Attorney Client Privilege" 98 Harv. L. Rev.
1450, p. 1502-3
Later justifications of the privilege incorporated utilitarian analysis. Early utilitarians considered the
privilege instrumental in achieving social good because it would induce clients to consult freely with legal
advisers. Acquiring expert legal advice and representation would in turn help clients operate within a highly complex
court system. Although the early utilitarian theory and the honor-based justification co-existed for a time, Lord Mansfield, in The
Duchess of Kingston's Case, explicitly rejected the honor-based justification because the same rationale might also justify the creation
of a privilege for physician-patient relationships. Thereafter, the attorney-client privilege was justified as a means to
assure the client of the effective legal assistance of a well-informed trial attorney.
Wigmore crystalized this utilitarian justification and separated it from prior rights-based theories. He argued that the privilege
should be available only when the benefits that might inure to all of society from encouraging
communications between all attorneys and their clients would outweigh the systemic costs to the court's
fact-finding process of doing without any attorney's testimony. Wigmore's particular balancing approach thus weighed
general costs and benefits across all of society without taking into account any notions of individual rights. By looking only at
broad societal costs and benefits, Wigmore diverted attention from individuals and their rights.
UTILITARIANISM BALANCING MUTUALLY EXCLUSIVE WITH ACCOUNTING FOR
RIGHTS
Harvard Law Review, 1985, "Privileged Communication: III. Attorney Client Privilege" 98 Harv. L. Rev.
1450, p. 1504
This division has prompted a robust debate over the appropriate scope of the privilege. The utilitarian camp generally argues
for a narrower privilege, just as Wigmore did in 1904, by balancing easily observed social costs with less
concrete benefits. The non-utilitarian theorists argue for expansion of the privilege, focusing on the rights that the privilege
protects and abandoning caution concerning the cost of fully protecting those rights. Each side in the debate applies its
approach to justifying the privilege to the exclusion of the other, treating the two theories as mutually
exclusive.
ATTORNEY-CLIENT PRIVILEGE CREATES ETHICAL CONUNDRUM -- POSTIS
COMPETING VALUES AGAINST EACH OTHER
Ronald Goldfarb, Attorney, 2009, In Confidence: When to Protect Secrecy and When to Require
Disclosure, p. 228-9
The balancing required by challenges to confidentiality comes down to choosing between rights . With a clash
between right and wrong, for example, between privacy and police misconduct (in Fourth Amendment cases involving wrongful
searches), the choice is easier. But when the choice is between one right (the right of privacy) and another right
(the right to a fair and open trial), the decision maker faces a conundrum: Which is more important --ensuring
solicitude to a criminal who seeks religious or medical or legal advice, or ensuring that crimes are deterred and punished? To ask that
question is to suggest its answer. As a general rule, protecting the sanctity and privacy of confidential
communications is the value most people would support--but not when a palpable antisocial act is the
result. Do society's interests always take precedence over the individual's?
All considerations about confidentiality contain a competing undercurrent. As much as people seek privacy
and secrecy, they also require openness and transparency and communication. Those interests often intersect and
create conflicts whose resolutions are at the core of the social contract.
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Myth of Moral Justice: Attorney-Client Privilege Undermines
Justice System
RULES LIKE ATTORNEY-CLIENT PRIVILEGE UNDERMINE MORAL JUSTICE
Thane Rosenbaum, Lecturer in Law at Fordham University, 2006, "The Myth of Moral Justice: Why
our Legal System Fails To Do What's Right," 4 Cardozo Pub. L. Pol'y & Ethics J. 3, p. 3
I wrote The Myth of Moral Justice, primarily, as a moral critique of the legal system. In examining the rituals and practices
of the law under moral criteria - its obsessive focus on zero-sum contests, its dedication to cold rules and
procedural technicalities over human emotion, its failure to acknowledge the spiritual pain of those who
come before it, its inability to create an atmosphere where apologies, reconciliation, and the restoring of
moral balance to relationships is possible, its preference for judicial economy over truth, its privileging of
secrets and indifference to lies, and its failure to promote an atmosphere of mutual caring and connection
by not imposing a duty to rescue - the book is an indictment of the legal system for smugly believing that
the correct legal result is necessarily consistent with the right moral outcome.
Evidence and procedural rules, attorney-client privileges, settlements and plea bargains, the hostility of
adversarial proceedings, all severely undermine the storytelling, truth-seeking dimensions of what people
expect when they come before the law. And this failure lies at the heart of why moral justice is merely a myth.
A legal system that cares mainly about applying the law in mechanical, overly technical, and soulless ways
to the exclusion of other values is not a legal system that is interested in making sure that its judgments
make moral or emotional sense to those who look to the law for wisdom, guidance, and resolution .
ATTORNEY-CLIENT PRIVILEGE PLACES PROFESSIONAL ETHICS OVER MORAL
JUSTICE -- DESENSITIZES LAWYERS TO MORAL QUANDARIES
Thane Rosenbaum, Law Professor Fordham University & Novelist, 2004, The Myth of Moral Justice:
Why Our Legal System Fails to Do What's Right, p. 127
David E. Kelley, the creator of the award-winning, critically acclaimed television drama The Practice, has a particular interest in
storylines that deal with the attorney client privilege. Many episodes have involved an attorney with privileged but
damaging and morally compromising information about his or her client. The attorney knows that,
ethically, the secret can't be revealed. Yet he is tormented by an intuitive awareness that a lawyer should
not abandon his private conscience simply because the ethical rules of the profession shift the moral
obligations elsewhere.
"At some point lawyers inevitably become desensitized to moral quandaries ," Kelley said in an interview for an
article for the New York Times. "Privileges are a good example of this, because the keeping and protecting of
secrets come at the blatant expense of morality. It's a given not to reveal client confidences. But in The Practice, our
lawyers, on a weekly basis, question rules that lawyers have to follow in the real world. Our characters examine ethical conundrums
that real lawyers don't ever question."
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Myth of Moral Justice Link: Putting Rules Above TruthSeeking
PUTTING PROCEDURAL RULES ABOVE TRUTH SEEKING IMMORAL AND UNDERMINES
PUBLIC CONFIDENCE IN JUSTICE SYSTEM
Thane Rosenbaum, Law Professor Fordham University & Novelist, 2004, The Myth of Moral Justice:
Why Our Legal System Fails to Do What's Right, p. 117
Such procedural, overly narrow and technical applications of the law always come across as immoral to
those who believe that the legal system should honor truths and do what's just. Loopholes undermine the
faith and certainty in the law. And when criminals go unprosecuted because of a technical infraction or a
procedural irregularity, the story goes untold and justice remains undone . Indeed, the story of the procedural lapse
itself becomes the only story, superseding entirely the underlying, substantive events that gave rise to the crime or action. Such
legal maneuvers operate outside the boundaries of moral justice, breeding enormous resentment and
discontent and influencing negative attitudes about the legal system in the general public. If courts of law are
supposed to do justice and discover truths, then why should loopholes, technicalities, and procedural irregularities deprive the ultimate
truths from being known and the stories that give rise to them from being told?
Each of these diversions from truths reveals general imperfections of our constitutional system . A nation built
upon democratic ideals, civil liberties, and a romantic vision of freedom is bound to discover that legal outcomes will occasionally
come across as plain wrong. Presumptions of innocence, the equal and due process clauses of the Constitution, and the exclusionary
rule, each, in their own way, provide rights but are also, at times, responsible for moral wrongs. While we generally luxuriate in these
rights, judges, lawyers and law professors seem to be unmindful about the way immoral outcomes--and the
trampling of the truth--completely sabotage the faith that the public should have in the law as an institution.
PLACING TECHNICAL RULES ABOVE TRUTH & ADVERSARIAL NATURE OF PROCESS
IMMORAL
Thane Rosenbaum, Lecturer in Law at Fordham University, 2006, "The Myth of Moral Justice: Why
our Legal System Fails To Do What's Right," 4 Cardozo Pub. L. Pol'y & Ethics J. 3, p. 4
Distorting and manipulating the truth, perpetuating lies, confusing administrative justice with fundamental notions of
what is just, subjecting legal outcomes to a hostile knock-down, drag-out sporting contest where the goal is to destroy
one's adversary, silencing victims and the aggrieved from speaking to their losses, injury, and betrayal, creating an atmosphere
of implacable defensiveness and unapologetic self-righteousness rather than one of true human encounter
and moral repair, are not examples of a moral system of justice. Yet these practices are not only perfectly legal,
they are standard practice in our legal system.
LEGAL SYSTEM IGNORES TRUTH -- FOCUSES ON "FACTS"
Thane Rosenbaum, Law Professor Fordham University & Novelist, 2004, The Myth of Moral Justice:
Why Our Legal System Fails to Do What's Right, p. 16-7
The legal system always seems to ignore that the public has inherent expectations about the law, which conflict
with the more circumscribed vision of what the law has in mind for itself. Truth is one example of this broken
trust. The legal system functions quite well knowing that most cases don't end up achieving any measure of
truth. In fact, trials, legal settlements, and plea bargains generally result in either silencing the truth or
bastardizing it. The legal system, for its part, is satisfied with learning facts. If the facts also turn out to be
true, that's a fortuity of the legal system, not its aspiration. But facts and truths are two different concepts
entirely. Facts don't have to be true. They just need to be found and applied to the law. Facts are artifacts of the justice
system, while truths are trademarks of the moral universe. Fact is a legal term; truth is a moral one . The
legal system's notion of justice is served by merely finding legal facts without also incorporating the moral dimensions of emotional
and literal truth.
US JUSTICE SYSTEM PLACES CONCERN FOR LEGAL RULES ABOVE JUST AND
CORRECT OUTCOMES
Thane Rosenbaum, Law Professor Fordham University & Novelist, 2004, The Myth of Moral Justice:
Why Our Legal System Fails to Do What's Right, p. 31
Judges and lawyers have a very narrow vision of what the law can and should accomplish . What seemingly
matters most is that final judgments comport with constitutional procedures, prior legal precedents, or
statutory mandates. A rule gets applied to the facts. The result is justice. It may be morally wrong, but the
focus on doing what's legal rather than on what's right overrides all other considerations and concerns.
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INSISTENCE ON PROCEDURAL RULES AND ORDER IMMORAL
Thane Rosenbaum, Law Professor Fordham University & Novelist, 2004, The Myth of Moral Justice:
Why Our Legal System Fails to Do What's Right, p. 140
But even to assume this kind of decorum, or to insist on it, is nonsensical, if not plain immoral. Everything about
life is out of order. Indeed life is unmistakably messy and irresolute. Why should a courtroom, which is the
gathering spot of life's unresolved conflicts, be a place that denies the essential humanity of those who wander inside
it? Why insist on order when it so misrepresents the human experience ? Given these tremulous beginnings, we
should not be robbing the trial of the very oxygen that breathed life into the original dispute.
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Myth of Moral Justice Link: Legal Discourse
LEGAL SYSTEM FOCUS AND DISCOURSE IGNORES MORAL EVALUATIONS
Thane Rosenbaum, Lecturer in Law at Fordham University, 2006, "The Myth of Moral Justice: Why
our Legal System Fails To Do What's Right," 4 Cardozo Pub. L. Pol'y & Ethics J. 3, p. 4
Invoking moral issues and adopting them as part of the public discourse is not something American society
- or at least a particular segment of society - is comfortable doing. Whether acknowledged or not, there is a split between
the legal and the moral in the American legal system. And it is not even a conscious split. The moral issue is
simply not part of the picture, and no one seems to be alarmed by its absence. That is because legal
decision making and moral consciousness are not the same things, and no one is particularly troubled by
the lack of integration between the two.
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Myth of Moral Justice: "Justice" System Does Not Focus on
"Just" Outcomes
JUSTICE SYSTEM DISTINCT FROM WHAT IS JUST -- FOCUS ON PROCEDURAL LEGAL
RULES VS. FOCUS ON WHAT IS MORAL AND RIGHT
Thane Rosenbaum, Law Professor Fordham University & Novelist, 2004, The Myth of Moral Justice:
Why Our Legal System Fails to Do What's Right, p. 17-8
There is a difference between justice and doing what's just. Justice is a legal term. It involves the
administration and maintenance of the legal system, the manner in which it is institutionally organized, the
way it presents itself to the outside world. Justice lives according to its own set of internal rules. It is governed by its own
proprietary rituals and formalities. It exists within a vast labyrinthine maze of bureaucratic and technical
procedures, fed by an inexhaustible supply of lifeless statutes and precedent-affirming cases, choked by all
those court records, docket numbers, and written forms.
Justice in many ways has far more in common with the soulless, airless atmosphere that Franz Kafka concocted for his character,
Joseph K., in his novel The Trial, than anything that approximates just treatment or a just result at the end of a long trial.
Paradoxically, there is no actual, legal trial in The Trial--only one that is spiritually imprisoning. Joseph K. never gets that far. He's
too busy living under the gaze of accusation and suspicion, preparing for a trial that never comes, yet a death sentence arrives anyway.
Kafka's portrayal of justice is horrific, but perhaps all too accurate. The legal system's path to justice has a consumptive, machine-like
quality to it, with all its grinding wheels and soul-crushing, dehumanizing dimensions. The corridors of justice in The Trial are only
attic-size, providing nothing but suffocation and despair.
Similarly, nearly three quarters of a century earlier, not in Prague, but in London, Charles Dickens, in his Victorian masterpiece Bleak
House, imagined the dense for of endless legal confusion surrounding the estate matter of Jarndyce v Jarndyce. And throughout the
more than eight hundred pages, there is no resolution, just black-hold anguish and ruination. This was Dickens's vision of what the
Court of Chancery offered citizens who came before it each day like addicted beggars, seeking relief and justice but receiving nothing
in return other than wasted time and arrested lives.
The word "just" however, quite separate from the word "justice," implies a moral dimension. It speaks entirely
to the moral realm of our humanity. Doing what's just is the experience of providing, and ultimately receiving, true relief.
To be just is not a legal aspiration but a moral one. When someone is acting justly, the outcome makes
sense not just to the mind, but also in the heart and soul.
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Myth of Moral Justice: Moral Justice Distinct From
Professional Ethics
PROFESSIONAL ETHICS DISTINCT FROM WHAT IS MORALLY JUST
Thane Rosenbaum, Law Professor Fordham University & Novelist, 2004, The Myth of Moral Justice:
Why Our Legal System Fails to Do What's Right, p. 128
Indeed, legal ethics is actually a misnomer, because the ethics that it speaks to is not a general sense of
propriety, but rather something that is specific to lawyers alone. Like the words "remedy" and "relief," lawyers use the
word "ethics" in a completely different context, separate from its ordinary meaning. Most people think of
ethical conduct as being essentially the same thing as moral behavior. But legal ethics doesn't mean "doing
the right thing." It means representing clients faithfully, according to the self-regulating ethical
requirements of the profession the rules of the game rather than the moral standards of right and wrong.
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Myth of Moral Justice: Moral Justice Distinct From Religion
MORAL JUSTICE DOES NOT RELY ON RELIGION
Thane Rosenbaum, Lecturer in Law at Fordham University, 2006, "The Myth of Moral Justice: Why
our Legal System Fails To Do What's Right," 4 Cardozo Pub. L. Pol'y & Ethics J. 3, p. 5-6
Now, as I pointed out in the book, moral justice is neither dependent on, nor dictated by, religious guidance . Moral
justice does not take its direction from religious authorities or divine law. The fact that people make this assumption
is part of what is wrong with the quality of public debate in America. We have capitulated the moral ground entirely to religious
institutions, as if morality is the province only of the religious world rather than something that is innately human and ultimately an
expression of our humanity. One does not have to be religious, or even believe in God, in order to be moral and to
engage in moral acts. And morality does not only have to be defined in religious terms. Atheists are quite
capable of being moral, and vegetarians who refuse to eat animals on moral grounds do not have to identify
themselves as religious in order to have developed this moral mindset . In fact, most religions impose no prohibition
on the eating of animals. Does that mean that atheists cannot have a moral basis for declining to eat meat since religions apparently
have no moral qualms about doing so?
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Attorney-Client Privilege Violates First Amendment
STRICT ATTORNEY-CLIENT PRIVILEGE VIOLATES FIRST AMENDMENT RIGHTS
Fred C. Zacharias, Law Professor Cornell Law School, 1989 "Rethinking Confidentiality," 74 Iowa L.
Rev. 351, p. 354
Moreover, it is whimsical to assume that strict rules can remain free from legal attack . Forbidding lawyers to
disclose information they feel morally obligated to reveal implicates serious free speech interests . Since the
Supreme Court explicitly recognized lawyers' first amendment rights in the early 1970s , attorneys have mounted prospective
legal challenges to many speech-restrictive ethical rules that previously seemed immune. A challenge to strict
confidentiality is likely to turn on the nature of the empirical evidence for and against a bar's justifications for its rule. The availability
of relevant data will prove important to proponents and opponents of confidentiality exceptions alike.
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Shielding Exonerating/Exculpatory Evidence Immoral
RELYING ON PRIVILEGE TO WITHHOLD EXONERATING EVIDENCE FOR AN ACCUSED
INNOCENT PERSON IS UNJUST AND IMMORAL
Thane Rosenbaum, Law Professor Fordham University & Novelist, 2004, The Myth of Moral Justice:
Why Our Legal System Fails to Do What's Right, p. 120-1
In Morales v. Portuondo, a 2001 case brought before a federal district court judge in New York, the court wisely and morally
overturned a conviction and undid a horrible injustice. Morales was finally released from prison after serving
thirteen years. As teenagers, he and a codefendant had been convicted of murder. Just prior to their sentencing,
however, another teenager, Fornes, confessed to both a priest and a Legal Aid attorney that it was he who had
committed the murder, and not Morales. The priest never revealed the confession, nor did the Legal Aid attorney, even though
Fornes stated clearly and unequivocally, "I am here because I can't sleep, can't eat, no one has forced me or paid me or told me to do
this, just something wrong has happened." Bound by the ethics of their respective callings, they believed that they
were prevented from disclosing this information, even at the risk of furthering an injustice and commitment
their own moral crimes of complicity and neglect.
In fact, the Legal Aid attorney ultimately advised Fornes not to testify and implicate himself. In the lawyer's judgment,
Fornes's testimony would hot have altered the disposition against Morales, and would have certainly resulted in prejudice to Fornes,
because he, too, would now have to be prosecuted for the crime. Morales was convicted in 1988 and went to jail.
Fornes died in an unrelated incident in 1997. Yet the Legal Aid attorney still maintained the privilege and
never came forward with the truth, even though his client was dead and two innocent men had been in jail
for over a decade. Only recently did the attorney, as well as the priest, decide to reveal what they had known all along. It
is true that both the attorney and the priest eventually did come forward, and in doing so, they each chose to violate the ethical and
sacred duties of their professions, thereby risking disbarment and excommunication. But neither of those consequences ensued. And
in the thirteen years that preceded their decision to break their vows and speak, their silence assisted in
destroying a young man's life.
A similar critique can be directed at the judiciary. This case went through various stages of appeals at the state and federal levels, in
addition to the trial itself. In each instance, the presiding judges were aware of this exculpatory evidence, but chose
to ignore it, or explain it away in order to achieve a presumptively legal result regardless of its severe moral
implications.
PRIVILEGE CAN BE USED TO PERPETRATE SERIOUS INJUSTICE -- CONVICTING OTHER
INNOCENT DEFENDANTS
Ronald Goldfarb, Attorney, 2009, In Confidence: When to Protect Secrecy and When to Require
Disclosure, p. 68-9
William Wayne Macumber was convicted of two counts of murder and given two concurrent life sentences.
Before Macumber's trial, another person confessed to having committed these crimes to the two attorneys who
defended him. After their client died, the state bar's ethics committee advised the lawyers that they could
testify as to their client's confession so that an injustice could be avoided. During Macumber's trial,
however, the court did not allow their testimony. The court allowed Macumber to be convicted without the
jury hearing about the other person's confession--surely a fact that would have raised reasonable doubt. To make matters
worse, it was the trial judge who raised the privilege (the confessor being dead), as the law permits. "The privilege does not terminate
with death."
One of the dissenting judges on the Arizona Supreme Court suggested that the defendant's right to present a
defense should have prevailed over the deceased's "property" right because the deceased client could no
longer be prosecuted. One commentator noted the perversity of the ruling: "The constitutional right of the
accused to present his defense is rendered subservient tot he reputational interest of a dead client in keeping
his disclosures quiet."
SUBJECTING EXCULPATORY EVIDENCE TO PRIVILEGE CAN HAVE LIFE-AND-DEATH
CONSEQUENCES
Ronald Goldfarb, Attorney, 2009, In Confidence: When to Protect Secrecy and When to Require
Disclosure, p. 70
A Virginia case illustrates the need for a judicial exception to the general rule of privilege. The attorney for
one of the defendants in a felony-murder case observed prosecutors coax and coach his client to modify his
testimony so that his codefendant could be identified as the triggerman and thus eligible for capital punishment.
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After the trial, the
attorney asked the state bar's ethics adviser if he could make this information public and
save the life of the convicted murderer. He was told that he could not .
When, ten years later, the death-row convict appealed his death sentence (on other grounds), the attorney again
sought permission to release the confidential information. The attorney stated that he would have maintained his
exculpatory secret if the bar's ethics authorities had insisted that he do so. This time he was told that he could release his
confidential information. As a result, a state judge commuted the convict's death sentence to life imprisonment .
One can question why the law should permit such an extreme injustice to result from a rigid rule about
confidentiality.
USING PRIVILEGE TO SHIELD EXCULPATORY EVIDENCE IS UNETHICAL AND
IMMORAL
Ronald Goldfarb, Attorney, 2009, In Confidence: When to Protect Secrecy and When to Require
Disclosure, p. 70
A North Carolina attorney faced a hostile judge when he testified, against the judge's admonition, about his dead
client's remarks that might have freed an innocent man convicted for a double murder and sentenced to life
imprisonment. The experienced lawyer argued that he had an ethical and moral imperative to disclose these
confidential conversations. Lay observers are critical, understandably, of a rule that permits grave injustices. Some
states permit exceptions to the confidentiality rule to prevent an execution; only Massachusetts allows the exception to prevent
wrongful incarceration.
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Should Put Truth Ahead of Privilege With Exculpatory
Evidence
SHOULD ADOPT POLICY TO PROTECT THE TRUTH WHEN IT INVOLVES
EXCULPATORY EVIDENCE
Tom Stacy, Law Professor-University of Kansas, 1991, "The Search for Truth in Constitutional Criminal
Proceedings," 91 Colum. L. Rev. 1369, p. 1370-1
Coherence is a quality all rational thought must possess and it occupies a high place in law. Indeed, Ronald Dworkin can be
interpreted to argue that putatively legal rules lacking coherence cannot truly claim to be law. Coherence is especially important
in constitutional law -- the foundational principles upon which our polity rests. Yet a basic inconsistency appears to rend
the United States Supreme Court's decisions regarding the constitutional rights of criminal defendants. The
Burger and Rehnquist Courts have repeatedly cited the importance of accurate adjudication as a reason to
interpret restrictively rights that can be called "truth-impairing," that is, rights withholding relevant evidence of guilt
from the adjudicative process. This logic implies that the Court should broadly construe rights that put exculpatory
evidence before juries and that the Court has itself described as "truth-furthering." Yet the Court frequently has
not construed such rights as broadly as its rhetoric about the importance of accurate adjudication would suggest that it should.
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Attorney-Client Privilege Should Be Treated Like Other
Privileges: Same Balancing
ATTORNEY-CLIENT PRIVILEGE SHOULD BE SUBJECT TO THE SAME BALANCING AS
THE OTHER PRIVILEGES
Ronald Goldfarb, Attorney, 2009, In Confidence: When to Protect Secrecy and When to Require
Disclosure, p. 86
Why not use a judicial balancing test in all cases where an issue is raised in good faith to determine if an
attorney-client privilege should be enforced? That procedure is followed in cases dealing with accountants,
doctors, journalists, and others. If a compelling competing social interest is established (such as the deceased-client
exception mentioned earlier), courts could then permit an exception to the general rule of confidentiality .
Professional rules of confidentiality would protect most interactions, unless a court ruled otherwise. As Mr. Carrington discovered in
the novel Democracy, mentioned at the beginning of this chapter, there must be room for a rule that aims to encourage
attorneys to follow the right rules and seek the moral result.
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Attorney-Client Privilege Should Be Treated Like Other
Privileges: Duty to Disclose Threats to General Public
ATTORNEY-CLIENT PRIVILEGE EXEMPT FROM THE PUBLIC SAFETY
CONSIDERATIONS THAT OPERATE REGARDING OTHER PRIVILEGES
Fred C. Zacharias, Law Professor Cornell Law School, 1989 "Rethinking Confidentiality," 74 Iowa L.
Rev. 351, p. 361-3
At the heart of attorney-client confidentiality rules is the notion that lawyers are clients' agents, and often their fiduciaries. Agency law
requires preservation of principals' confidences and forbids agents to profit personally from information the principal has disclosed in
secret.
Attorney-client rules, however, expand the responsibility of lawyers to maintain client secrets beyond agency
law standards. Ordinary agents may not sell or attempt to benefit personally from disclosing confidences.
But they are "privileged to reveal information confidentially acquired by [them] in the course of [their]
agency in the protection of a superior interest of [themselves] or of a third person." This disclosure
privilege is reflected in the everyday practice of non-legal professionals, such as physicians, who normally keep
confidentiality. In contrast, the strict versions of attorney-client confidentiality limit an attorney's right to
disclose to situations involving dangerous future crimes. Not even the most liberal of lawyer codes includes a catch-all
"superior interest" provision.
As a result, strict confidentiality
rules forbid attorneys to disclose in a variety of situations in which other
agents might have free rein to follow their consciences. In the absence of a client's declared intent to commit or
participate in a crime, strict rules might well forbid an attorney to disclose a confidence to protect third parties
from criminal harm, as in the kidnapping hypothetical noted in the introduction. Standard disclosure exceptions also do not
cover situations in which the client plans to commit potentially tortious, but noncriminal, activity. For example:
The general counsel to a firm that produces a metal alloy used in the manufacture of airplanes learns of a company study that suggests
that in some high-altitude flight patterns the alloy might weaken and cause a plane to explode. The alloy does, however, meet the
minimum safety standards set by the government. The lawyer urges the Board of Directors to recall the alloy or at a minimum to
inform users of its potential danger. The Board decides that the study is too inconclusive to warrant action, in light of the dire financial
consequences of disclosure to the company.
Unlike the doctor who must help police identify participants in crimes involving gunshots, lawyers usually
must keep evidence of past criminal activity secret, as in this scenario:
A client fortuitously receives an undeserved payment from the government (e.g., a duplicate welfare check or tax refund) and deposits
it in a savings account. The client then contacts his attorney, who advises the client to return the money. The client refuses.
PHYSICIAN PRIVILEGE EXISTS WITHIN A FRAMEWORK WHICH OWES A HIGHER
DUTY TO THE GENERAL PUBLIC
Thane Rosenbaum, Law Professor Fordham University & Novelist, 2004, The Myth of Moral Justice:
Why Our Legal System Fails to Do What's Right, p. 126
Yet if a lawyer knows the truth but must advocate on behalf of his client in a way that obscures, falsifies, or
diverts attention away from the truth - leading the court or corporate shareholders to draw false conclusions and reach
judgments that are tantamount to lies-- how is that serving the interests of society and justice? Doctors and
psychotherapists, for instance, also have a duty to maintain patient confidences, but not at the expense of a
higher duty owed to the general public. In these professions, the ethical duty to disclose a doctor-patient
privilege is mandated in certain instances (to prevent harm or injury), while in the legal profession, the rule is
only that the attorney may reveal the secret, and not that he should or must.
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AT: "Exceptions Prevent Harm from Attorney Client
Privilege"
EXCEPTIONS TO PRIVILEGE TOO NARROWLY CONSTRAINED -- ONLY RECOGNIZE
HARM TO THE BODY AS IMPORTANT
Thane Rosenbaum, Law Professor Fordham University & Novelist, 2004, The Myth of Moral Justice:
Why Our Legal System Fails to Do What's Right, p. 123
The new rule is an improvement, morally, over the original language, because it removed the words "imminent" and "criminal." Thus
it reduces somewhat the range of confidences that an attorney is required to keep, because it permits the disclosure of noncriminal acts
that may take place in the future. (This new rule still would not have changed the outcome in the Schaefer case.) But at the same time,
the disclosure of the confidence is allowed only when harm might come to the body, and not the spirit .
Typical of the conventional legal paradigm, there is no duty to disclose contemplated acts of spiritual violence, such
as emotional harm, or the causing of humiliation or indignity. Financial misdeeds, fraud, and
misrepresentations were also not excluded from the protection of the privilege. In all instances, it was clear that
the basic principle of the rule remained intact--short of causing physical harm to another person, anything
that a client discusses with his lawyers is privileged and cannot be revealed .
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**NEGATIVE**
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Truth-Seeking Not the Main Goal of the US Justice System
TRUTH IS JUST ONE OF MANY COMPETING GOALS OF THE US JUSTICE SYSTEM
Daniel Walfish, Law Clerk for Southern District of NY, 2005, "Making Lawyers Responsible for the
Truth," 35 Seton Hall L. Rev. 613, p. 621-2
One strand of argument against Frankel's proposals rejects the idea that truth should be accorded a higher priority
in an adversary trial. This position has been argued most forcefully by Monroe Freedman, but others have made similar points.
Freedman, in a response that was published alongside Frankel's article, argued that the American legal system serves other
values, like the promotion of individual dignity, in addition to truth. Serving individual dignity, Freedman
contended, might sometimes require subordinating - and hence, distorting - truth. One example is the constitutional
privilege against self-incrimination. Freedman quoted United States Supreme Court justices who have supported defense attorneys'
obligation to defend clients vigorously, regardless of whether they are guilty. None of the quoted passages explain why this duty exists
or what makes it more important than truth, but Freedman offered the following explanation: " Before we will permit the state
to deprive any person of life, liberty, or property, we require that certain processes which ensure regard for
the dignity of the individual be followed, irrespective of their impact on the determination of truth."
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Justice System Fails at Truth-Seeking
CRIMINAL JUSTICE SYSTEM FAILS AT TRUTH-SEEKING MISSION
Thane Rosenbaum, Law Professor Fordham University & Novelist, 2004, The Myth of Moral Justice:
Why Our Legal System Fails to Do What's Right, p. 8-9
The beauty of art is that it can reveal vistas of human complexity that are often ignored in the muted dramas of the courthouse. Artists
have long been fascinated with trials and the legal process, and have used the law as inspiration to address large moral and redemptive
themes. Humanity is not only judged by the law; it is also sacrificed when it surrenders to it. But the real life of
the law is a drama without emotional texture. It's difficult to learn a moral lesson from watching an actual case,
because so few either present a moral dilemma or frame the case in moral terms . Most suffer from the staidness of
ritual and routine, and the predictability of precedent. But art and literature that focus on legal themes, which are so abundant in our
culture, provide easy reference points that make the moral themes of this book more universally understood. Indeed, the literature that
invokes law as a plot device is nearly always steeped in moral and spiritual concerns. We may all know the story of The Merchant of
Venice, but what we may not know is its moral critique on the rigidity of law and its failure as a facilitator of either revenge or repair.
The artist continually reminds lawyers of what the law often fails to do in the name of justice.
This cynicism about the legal profession is not so much about lawyers being perceived as dishonest, or only
in it for the money, or that the law is often unjust. Some of those perceptions are either true or have become cliches about
the legal system. But they are not the main sources of collective mistrust. There is yet another flaw , one that is
unnamed but widely felt, which better underscores the public's ambivalence about the law.
What is unforgivable, and what is rarely acknowledged, is that the law lacks soul, that it is without tenderness. It has no
tolerance for the emotional complexity of those who muster the courage to enter a courtroom, with all of their
consolidated ambitions and repressed rage, wounded egos, petty jealousies and perennial rivalries, competitive fires and thwarted
dreams. The law places too much faith in its own ability to know the facts, to know with certainty what
happened and what did not. It focuses too ferociously on what is utterly unreliable: the search for the
concrete, literal truth. But that is such an illusory and elusive quest. Some truths the court will never discover. And
some discoverable facts have no relation to actual truths. And yet in looking for hard evidence, it will ignore all those
soft but clashing emotional truths that are spoken before the bench and inside the witness box -- and lurk outside the courthouse -each day. Facts are never cold, but are forever heated. The law assumes an objectivity that as no place in life, because life is
populated with the subjective judgments of irrational men and women, which is precisely the pool from which empanelled jurors and
sworn witnesses wade in and from which they are selected.
With its obsessive insularity and narrowness, its pretense that all that maters is what takes place under oath, the
law misses the emotional backstory, the suppressed part of every lawsuit. The real drama of the human experience gets
played out not in a courtroom, but on the streets, inside offices and homes. Human trial and error precedes the legal trial
and supersedes it in importance. Beyond the solemn corridors of the courtroom, life is dynamic, animated,
volatile. This is where paths are totally unprescribed, where nuance and ambiguity live amidst messy irresolution. Justice
deludes itself into believing that final judgments are indeed final. Legal finality provides nothing but a
false closure. Even the victors don't leave courthouses believing that emotionally the case is all over and the issues are all settled.
And this moral critique against the legal system applies to both the criminal and civil areas of the law.
TRUTH SEEKING IS NOT A GOAL OR OUTCOME OF THE US JUSTICE SYSTEM
Thane Rosenbaum, Law Professor Fordham University & Novelist, 2004, The Myth of Moral Justice:
Why Our Legal System Fails to Do What's Right, p. 15-6
Unfortunately, the law is not the place to find those answers. Justice may be about many things, but the moral
complexity of distinguishing between right and wrong, or arriving at the truth of a given situation, is neither
its strength nor its ostensible mission. Courts of law are there to administer justice, to efficiently streamline
cases, to ensure the availability of a forum that offers the chance at some relief. It's the possibility of justice that it
guarantees, not the quality of that justice, nor the certainty that, in the end, justice will make sense, feel right, and resolve matters in a
way that leaves the parties better off and reconciled to move on with their lives. The institution of law defines itself as an
arbiter of legal disputes, and not as a dispenser of moral lessons or seeker of truths . It thrives on an adversarial
process that only takes prisoners and leaves little room for peace.
Truth has a way of seeming incidental to the law, an accidental by-product of a stated goal that generally
gets short shrift . The legal system justifies its role in society by imposing discipline on the lawless and resolving conflicts -- often
inadequately -- among the rest. These are its fundamentally narrow objectives. As long as caseloads progress, justice is done. That's
what servants of the law mean when they proclaim, unapologetically, even after an unjust verdict, that "the law has spoken.'" But
when the results are immoral, what can be said about the words that were used to justify the law's spoken decree? When the
application of the law is perceived as senseless, it has a shattering effect on the capacity of the parties and
the community to reconcile and move on.
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ADVERSARIAL SYSTEM MEANS THAT WINNING MATTERS MORE THAN TRUTH
James Marshall Crotty, Forbes Contributor, 10/03/2013, "Do Debaters Make Better Lawyers?,"
http://www.forbes.com/sites/jamesmarshallcrotty/2013/10/03/do-debaters-make-better-lawyers/#750d5d,
Nevertheless, as any debater or philosopher knows, in capitalist jurisprudence, the very idea of paid service is inextricably tied up with
self-serving gain. For that reason, law, like debate, is, in the end, about sophistry, not Socratic dialogue. While judges,
juries, and lawyers claim to be interested in Truth with a capital T, a law trial is not a St. John’s College Don
Rag seminar. It’s a game. And those defendants or plaintiffs with the better players on their team – no matter
what each player’s moral imperative – end up garnering more favorable results, regardless of their ultimate
guilt or innocence.
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Attorney-Client Privilege Does Not Conflict with TruthSeeking: Turn-Increases Information
TURN: ATTORNEY-CLIENT PRIVILEGE INCREASES INFORMATION
Adam M. Chud, Law Student, 1999, "In Defense of the Government Attorney-Client Privilege," 84
Cornell L. Rev. 1682, p. 1689-90
Although one generally assumes that the attorney-client privilege reduces the amount of information available to a court, there is
support for the contrary proposition that the attorney-client privilege actually preserves some information that
would be lost absent the privilege. The privilege encourages discussion between an attorney and a client
and thereby prevents the loss of information due to the client's fading memory as the time gap between the
relevant event and trial increases. This preservation of information aids the court in its search for truth. Additionally,
after a lawyer informs a client that conversations are privileged, the client will not refrain from discussing sensitive and potentially
damaging subjects with her attorney for the fear that the discussion will be used against her in court. In sum, the attorney-client
privilege allows a lawyer to give high quality legal advice while depriving a court of little information; the
client would not necessarily have divulged the information to the court absent the protection offered by the
attorney-client privilege.
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Attorney-Client Privilege Does Not Conflict with TruthSeeking: Evidence Would Not Be Available Without Privilege
PRIVILEGE HAS LITTLE IMPACT ON TRUTH-SEEKING, WITHOUT IT THE STATEMENTS
WOULD NOT BE MADE
Edward J. Imwinkelried, Law Professor-University College Dublin, 2003, "An Essay on Rethinking the
Foundations of Evidentiary Privileges," 83 B.U.L. Rev. 315, p. 318
The Supreme Court has repeatedly endorsed this theory. In 1976 in Fisher v. United States, the Court remarked that the
attorney-client privilege is intended to "protect[] only those disclosures ... which might not have been made
absent the privilege." In the 1996 Jaffee opinion, Justice Stevens, writing for the majority, elaborated:
The likely evidentiary benefit that would result from the denial of the [psychotherapist-patient] privilege is
modest. If the privilege were rejected, confidential conversations between psychotherapists and their patients would surely be chilled
... . Without a privilege, much of the desirable evidence to which litigants such as [plaintiff] seek access - for example,
admissions ... by a party - is unlikely to come into being. This unspoken "evidence" will therefore serve no
greater truth-seeking function than if it had been spoken and privileged .
Most recently, in the 1998 Swidler & Berlin decision dealing with the attorney-client privilege, the Chief Justice stated that
"without the privilege, the client may not have made such communications in the first place." Hence, as
Chief Justice Rehnquist continued, "the loss of evidence is more apparent than real."
ATTORNEY-CLIENT PRIVILEGE DOES NOT IMPAIR TRUTH SEEKING
Daniel Walfish, Law Clerk for Southern District of NY, 2005, "Making Lawyers Responsible for the
Truth," 35 Seton Hall L. Rev. 613, p. 624-5
Another response to Frankel's proposal was instrumental: Making lawyers affirmatively responsible for the truth would
have undesirable side effects. Albert Alschuler, for example, suggests that protecting confidentiality does not impair
the search for truth because the purpose of confidentiality is to induce disclosures to the attorney that the
client would not make (and therefore, no one would know) in the absence of the protection. Under Frankel's proposals,
therefore, a client would refrain from revealing material adverse facts. Uviller argued that in the commercial context, impairing
confidence might be undesirable because the lawyer often obtains complete disclosure from the client, and the lawyer can use the
disclosures to steer the client away from unlawful activities. William T. Pizzi has argued that if a lawyer were required to
disclose adverse information, the lawyer might strategically avoid obtaining full knowledge. A defender of
Frankel's proposals might respond that under those proposals, a lawyer would be prohibited from avoiding full knowledge so as to be
able to tell half-truths to the court.
COSTS TO SYSTEM OF EXCLUDING EVIDENCE ARE OVERBLOWN
Harvard Law Review, 1985, "Privileged Communication: III. Attorney Client Privilege" 98 Harv. L. Rev.
1450, p. 1507-8
-- In tallying the cost of the attorney-client privilege, utilitarians traditionally seize upon the evidentiary cost, claiming
that the privilege "sacrifice[s] [the] availability of evidence." Yet, to the extent that the privilege induces a
client to reveal information to his attorney, it keeps from the court only sources of information that would
not exist without the privilege. As the Supreme Court has recognized: "Application of the attorney-client privilege .
. . puts the adversary in no worse position than if the communications had never taken place." Therefore,
the evidentiary costs are less weighty than utilitarians have traditionally assumed.
PRIVILEGE ONLY PROTECTS INFORMATION THAT WOULD NOT OTHERWISE BE
DIVULGED
Ronald Goldfarb, Attorney, 2009, In Confidence: When to Protect Secrecy and When to Require
Disclosure, p. 27
Wigmore advanced the pragmatic, albeit speculative, rationale that but for the absolute guarantee of privilege, patients or
clients or penitents would not communicate information essential for their relationship to succeed. Thus, the
privilege must be absolute and not subject to exceptions based on countervailing interests warranting disclosure in specific situations.
Wigmore's was "a bright-line standard"." It was "cost-free to the judicial system," Professor Imwinkelried
suggests, because under this theory the privilege "suppresses only evidence that would not exist but for the
privilege."
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Attorney-Client Privilege Does Not Conflict with TruthSeeking: Narrowly Tailored-Confidentiality Requirement
CONFIDENTIALITY REQUIREMENT LIMITS PRIVILEGE'S IMPACT ON NECESSARY
EVIDENCE
Melanie B. Leslie, Law Professor-Benjamin Cardozo School of Law, 2000, "The Costs of
Confidentiality and the Purpose of Privilege," 2000 Wis. L. Rev. 31, p. 35-6
Rice misses the point. The attorney-client privilege does not seek to encourage attorney-client communication
at any price. Rather, scholars and courts adjudicating privilege issues have long struggled with the tension between
the need for the privilege and the substantial cost of shielding relevant evidence from the fact finder. The
law of attorney-client privilege therefore contains a number of restrictions designed to narrow the privilege's
application to exclude as little evidence as possible without deterring open communication between
attorney and client. The confidentiality requirement, as one such restriction, seeks to ensure that the privilege
protects only those attorney-client communications that would not have been made absent the privilege . It
acts in opposition to the privilege by serving an important limiting function. Rice's mistake is that he assumes that the
rationale for the rule should be the same as the rationale for the exception.
ATTORNEY-CLIENT PRIVILEGE ONLY COVERS CONFIDENTIAL COMMUNICATIONS
Paul C. Giannelli, Law Professor-Case Western Reserve, 2009, Understanding Evidence, p. 594-5
The attorney-client privilege covers only confidential communications. Thus, where the information
communicated is intended to become public, the privilege is inapplicable . Similarly, information concerning a
defendant's obligation to appear for trial or sentencing is not "of a confidential nature" and thus not covered by the privilege.
The privilege does not apply when the client's actions are inconsistent with an intention of confidentiality -for example, if the communication is made in the presence of a third person . The presence of outsiders
indicates that confidentiality was not intended. Confidentiality will be considered preserved, however where the third
person is assisting in the legal consultation, such as the case with legal secretaries, investigators, and paralegal assistants. In some
cases, the privilege is retained when a spouse, parent, or business associate is present.
As long as the client did not know of the presence of an eavesdropper when the communication took place, and the client took
reasonable steps to preserve confidentiality, the privilege remains and the eavesdropper may be prohibited from testifying about what
was overheard.
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Attorney-Client Privilege Does Not Conflict with TruthSeeking: Courts Carefully Weigh Costs/Benefits
COURTS HAVE METHOD FOR WEIGHING BENEFITS AND LIMITING HARM TO TRUTHSEEKING
Ronald Goldfarb, Attorney, 2009, In Confidence: When to Protect Secrecy and When to Require
Disclosure, p. 32
Under the present approach in America, privileges are not favored and may be justified only if there is a
transcendent public good that outweighs the search for truth. In determining whether there is such a public good,
courts should consider whether there is an "imperative need for confidentiality"; whether "public ends"
would be served; whether the evidentiary cost would be modest; and whether any federal rule would have a
negative impact on state practices. This approach is reasonable, and is based on historical ideal of the federal system that the
states would be versatile jurisprudential engineers of social policies.
PRIVILEGE IS WEIGHED AGAINST COSTS -- NOT ABSOLUTE
Ronald Goldfarb, Attorney, 2009, In Confidence: When to Protect Secrecy and When to Require
Disclosure, p. 61
No negative inference may be drawn from a client's insistence on the secrecy of his confidential
communications with counsel; there should be no suggestion that the information privileged would be
unfavorable to the client. There are exceptions--in cases of prospective crime or fraud, for example--and they are noted in bar
rules and codes of ethics. The privilege is qualified, not absolute.
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Attorney-Client Privilege Enhances Truth-Seeking
ATTORNEY-CLIENT PRIVILEGE ENHANCES TRUTH-SEEKING
Fred C. Zacharias, Law Professor Cornell Law School, 1989 "Rethinking Confidentiality," 74 Iowa L.
Rev. 351, p. 358-9
The bar, however, has relied on other justifications for confidentiality. By encouraging clients to communicate
information they would otherwise withhold from their lawyers, confidentiality enhances the quality of legal
representation and thus helps produce accurate legal verdicts. Proponents also claim that confidentiality improves the
attorney-client relationship. It can foster aspects of lawyer and client "dignity." And, in theory, confidentiality helps
lawyers discover improprieties that the client plans, advise against them, and ultimately stop the
misconduct.
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Privilege Fails to Increase Truth-Seeking
PRIVILEGE DOES NOT ENCOURAGE MORE TRUTHFUL STATEMENTS
Ronald Goldfarb, Attorney, 2009, In Confidence: When to Protect Secrecy and When to Require
Disclosure, p. 227
The rationale for excluding certain classes of valuable, often crucial, evidence is that such evidence derives from
relationships that supposedly could not exist if the parties to them could not be assured of the
confidentiality of their revelations. That premise has been challenged by knowledgeable practicing professionals
and by critics of these privileges. Sick patients will discuss their problems with their doctors, husbands will
talk to wives, anonymous sources will talk to reporters, even if they know that their communications might
be made public, though they would surely prefer otherwise. An experienced jurist fears that without a
privilege parties will disclose facts selectively to doctors and attorneys, which will result in inappropriate
treatment or advice based on incomplete data. Cynics wonder if clients and patients tell the whole truth
even when they presume that their communications are confidential.
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Restricting Attorney-Client Privilege Doesn't Increase Truth
Seeking: Other Privileges
LAW RECOGNIZES IMPORTANCE OF PROTECTING CONFIDENTIALITY IN A VARIETY
OF RELATIONSHIPS
Ronald Goldfarb, Attorney, 2009, In Confidence: When to Protect Secrecy and When to Require
Disclosure, p. 24-5
Historically, state secrets involving national defense and international relations were protected. In addition, several classes of
relationships have been considered so special that the law deemed it improper to intrude on their
confidentiality; confidential relationships between clergy and their parishioners, between lawyers and their clients,
between doctors and their patients, and between husbands and wives. The rationale for protecting the sanctity
of communications within these privileged relationships was obvious and reasonable; there was deemed to be a
social interest in protecting the confidentiality of these conversations so that these intimate relationships
could thrive. In these limited situations, privacy was more exalted than the search for truth in civil and
criminal cases. Under the common law and various statutes, Anglo-American law has traditionally honored the privileged
confidentiality in these special situations.
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Restricting Attorney-Client Privilege Doesn't Increase Truth
Seeking: Alternate Causalities
PLEA BARGAINING UNDERMINES TRUTH SEEKING
Thane Rosenbaum, Law Professor Fordham University & Novelist, 2004, The Myth of Moral Justice:
Why Our Legal System Fails to Do What's Right, p. 87
Whatever happened to the truth in the criminal-justice system? We tolerate the idea of putting people in
jail for crimes for which they were willing to plead guilty but which they did not commit. Truth becomes
hostage to the efficiencies gained from negotiated pleas. In fact, it is the untold truths that we sentence to jail, not just
the criminals themselves. We incarcerate truth and reward mendacity. Criminals are behind bars, but under very false
pretenses. The truth has been punished even more severely--locked up in solitary confinement, forever.
Indeed as part of the plea bargain, criminal defendants are not required to testify as to what they did, or even to show remorse. And in
some cases, defendants who are completely innocent plead guilty because they have been pressured into
doing so by prosecutors who have threatened them with even more severe penalties should the case actually
proceed to trial and the defendant is found guilty.
WEAK PERJURY SANCTIONS UNDERMINES TRUTH-SEEKING IN THE JUSTICE SYSTEM
Thane Rosenbaum, Law Professor Fordham University & Novelist, 2004, The Myth of Moral Justice:
Why Our Legal System Fails to Do What's Right, p. 106-7
The legal system has a high tolerance for lying, and it doesn't seem too concerned about the public's growing
cynicism that justice lacks the institutional integrity to root out lies. The law accepts virtual truths for
actual truths, statements that are admittedly and intentionally misleading. They are not technically perjurous but not entirely true,
either. The burden is placed on the examining attorney to get to the truth by asking the right questions. And
if the witness is more clever than the attorney, and answers in an evasive, elliptical manner, so be it .
Consistent with the conventional legal paradigm, with its sporting-contest, winner-take-all ground rules, judges and lawyers believe
that it is ultimately the job of the jury to ascertain the truth. They are the finders of fact. They are the ones responsible for judging the
credibility of witnesses. It almost doesn't matter whether witnesses are lying or telling the truth, because the
finality of the trial will result in findings of facts, and those facts will stand in for the truth, even if they
were derived from lies.
EVIDENCE RULES AND COURTROOM PROCEDURES FRUSTRATE TRUTH SEEKING
Thane Rosenbaum, Law Professor Fordham University & Novelist, 2004, The Myth of Moral Justice:
Why Our Legal System Fails to Do What's Right, p. 107-8
For the most part, evidence rules are seen as essential to the proper and dignified workings of a trial or hearing.
They narrow the scope of the inquiry, simplify issues and narratives, set boundaries. They ensure that what
gets presented inside the courtroom, and what the jury can permissibly hear, conforms to a set of efficient
administrative rules that manage the proceedings and assist in justice.
But these efficiency-saving values also severely undermine truth and storytelling. Indeed, in limiting the scope of
the narrative, evidence rules only allow so much of the story to be told. When citizens come before the law,
they wish to speak, and they don't wish to be interrupted when doing so. They also have no preconceived notion of the order in
which the story should be relayed. They may be reliable, yet entirely disorganized witnesses. And since trials are
emotionally taxing, and parties appear in court at their most vulnerable, they tend to repeat themselves on the witness stand. We may
swear on the Bible, or simply swear to tell to the truth, but after that, our responses are not always so measured, confident, and clear.
Nervousness and anxiety are crucial to the witness's demeanor.
EVIDENCE RULES AND OBJECTIONS FRUSTRATE TRUTH-SEEKING
Thane Rosenbaum, Law Professor Fordham University & Novelist, 2004, The Myth of Moral Justice:
Why Our Legal System Fails to Do What's Right, p. 108-9
These objections, aside from being rude and insulting, also limit the story and rob it of all the nuance and emotion of
the human experience. What kind of a legal system says to people testifying under oath, right in front of
their faces, as if they are not there hearing the interruption, that their words are "irrelevant," or worse, "not credible "-simply not be believed? Evidence rules turn the entire courtroom proceeding into something frigidly cold,
artificial, and staid. This is absurd, given that courtrooms are filled with people at their most animated, alive, and infinitely
nervous. In light of the extreme, raw emotions that attend these proceedings, you would think that the legal system would have
figured out by now that, morally, you can't turn testimony on and off with a switch. If the whole point of the trial is to
determine the truth by allowing people to describe, in their own words, what happened, then why are the
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rules governing evidence so committed to telling people to shut up, that the manner and order in which they
are speaking, and its prescribed relevancy, is more important than what they have to say?
EXCLUSIONARY RULE UNDERMINES TRUTH-SEEKING
Tom Stacy, Law Professor-University of Kansas, 1991, "The Search for Truth in Constitutional Criminal
Proceedings," 91 Colum. L. Rev. 1369, p. 1374
Some rights, appropriately characterized as truth-impairing, deliberately subordinate accurate adjudication to
other values. The Fourth Amendment prohibition against unreasonable searches and seizures, the most
prominent example, protects privacy at the expense of the search for the truth . This prohibition makes it more difficult,
and sometimes impossible, for law enforcement officials to obtain evidence of criminal wrongdoing. So long as it is obeyed, the
Amendment has the effect of withholding relevant evidence from the criminal adjudicatory process.
EVIDENCE RULES PRECLUDE CONTEXT NECESSARY FOR TRUTH SEEKING
Thane Rosenbaum, Law Professor Fordham University & Novelist, 2004, The Myth of Moral Justice:
Why Our Legal System Fails to Do What's Right, p. 112-3
Evidence rules maintain such a tight lid on the story that trials lose their common meaning as places where
truths are honored and told. The story becomes incidental to the administration of legal justice. If we end up hearing the entire
tale, it's more by way of accident than design. Stories are introduced and redacted in synthesis alone, the cold Cliff's Notes
version rather than the director's cut. Far from being an open forum, courtrooms are places where we are mostly told to
shut up, to stop talking. Relevancy becomes an entirely external process. It's not what you want to say but
what we need to hear. Stories are deemed useful only in resolving the legal issues, without elaboration or repetition, and without
any consideration of human feelings. They have a limited purpose at trial -- to serve the law rather than the other way around.
EVIDENCE RULES DISTORT THE TRUTH BY FILTERING OUT SUBJECTIVE
IMPRESSIONS
Thane Rosenbaum, Law Professor Fordham University & Novelist, 2004, The Myth of Moral Justice:
Why Our Legal System Fails to Do What's Right, p. 150
Evidence rules are often used to defeat the testimony of witnesses who are either parties to the action, or are
deemed too emotionally and subjectively involved to speak factual truths . Because of the general assault on
subjectivity in the law, the information these witnesses possess isn't taken seriously, and is ignored legally. What the
legal system wants are eyewitnesses whose eyes remain clear of subjective interference. But in rooting out
what would exist anyway--in nature, in the human soul--courtrooms are deprived of eyewitness veracity, truths of
the best kind precisely because they involve the direct recounting of an event, along with the simultaneous
emotion of having a life radically upended and altered.
FIFTH AMENDMENT PROTECTION AGAINST SELF-INCRIMINATION FRUSTRATES
TRUTH-SEEKING
Tom Stacy, Law Professor-University of Kansas, 1991, "The Search for Truth in Constitutional Criminal
Proceedings," 91 Colum. L. Rev. 1369, p. 1376-7
The Privilege Against Self-Incrimination. -- The Fifth Amendment provides that "[n]o person . . . shall be compelled
in any criminal case to be a witness against himself." In part, the privilege against self-incrimination may be
understood as a truth-furthering guarantee. It insures that criminal convictions are not based on compelled
confessions, which are less likely to be trustworthy than voluntary ones. But the privilege, like the Fourth Amendment, also
reflects a truth-impairing concern for privacy -- for "the inviolability of the human personality and of the
right of each individual 'to a private enclave where he may lead a private life .'" No matter how relevant her
knowledge, the defendant has an absolute right not to testify at trial, and the prosecution is precluded from using a coerced confession
whose reliability is beyond dispute.
PROTECTION AGAINST DOUBLE JEOPARDY FRUSTRATES TRUTH SEEKING
Tom Stacy, Law Professor-University of Kansas, 1991, "The Search for Truth in Constitutional Criminal
Proceedings," 91 Colum. L. Rev. 1369, p. 1380-1
Double Jeopardy. -- The Double Jeopardy Clause states that no person shall "be subject for the same offence to be twice put in
jeopardy of life or limb." Like the privilege against self-incrimination, the aim of the double jeopardy
prohibition is in part truth-furthering. By barring repeated attempts to convict a person for the same offense, the Clause
diminishes the possibility that an innocent person will be found guilty. But the Double Jeopardy Clause also protects the
truth-impairing value of relieving the accused of the "embarrassment, expense, . . . and anxiety and
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insecurity" of repeated trials. A defendant thus may not be retried even after an "egregiously erroneous"
acquittal.
STATUTE OF LIMITATIONS UNDERMINE TRUTH
Thane Rosenbaum, Law Professor Fordham University & Novelist, 2004, The Myth of Moral Justice:
Why Our Legal System Fails to Do What's Right, p. 133
Truth should never be time-barred. Yet there are truths that never come to light, and injustices that go
uncorrected, all because of limitations placed on the time period in which lawsuits can be brought. Some of these
statutes of limitation vary by state or by the type of action being contemplated, but the basic principle remains the same: After a
certain period of time, if the case has not yet been filed, the claimant is prevented by the passage of time
from doing so.
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Due Process Protections Outweigh Any Harm to Truth Seeking
From Attorney-Client Privilege
TRUTH-SEEKING GOAL DOES NOT TRUMP INDIVIDUAL RIGHTS PROTECTED BY
ATTORNEY-CLIENT PRIVILEGE
Michael B. Dashjian, Law Student, 1982, "The Attorney-Client Privilege and the Criminal Defendant's
Constitutional Rights," California Law Review, July, 70 Calif. L. Rev. 1048, p. 1064-5
The state's interest in truth-seeking cannot support the restriction of constitutional rights found in Meredith. The
fifth amendment protection against self-incrimination is necessary to protect individual liberty from
government abuse even though this necessarily restricts the state in its truth-seeking. Moreover, it is a basic
tenet of the common law system that on balance, effective assistance of counsel advances, rather than
impedes, the search for truth. Finally, to ensure that no one is alone in defending a criminal charge prosecuted
by the government's vast resources, society should maintain the privacy of the attorney-client relationship
in spite of any perceived threats to the search for truth:
Truth like all other good things may be loved unwisely, may be pursued too keenly, may cost too much . And
surely the meanness, and the mischief of prying into a man's confidential communications with his legal adviser, the general evil
of infusing reserve and dissimulation, uneasiness and suspicion and fear, into these communications which
must take place, and which, unless in a condition of perfect security, must take place uselessly or worse, are
too great a price to pay for truth itself.
Thus, if privileges exist to afford necessary safeguards to those who must use the legal system, then
sometimes the truth-seeking function must give way to those safeguards. Still, the conclusions so far reached, while
protecting the attorney-client privilege, show only that the defense must be allowed to remove and study evidence without penalty.
They do not show what the defense should do with the evidence once it is studied, or whether it is possible to avoid irreparable
damage to the prosecution's ability to investigate the case while maintaining the privilege. There is, however, a solution to the problem
which ensures that only minimal, speculative harm will be done to the "search for truth" while maintaining the attorney-client
privilege and the individual constitutional rights underlying it.
CONSENSUS THAT THE BENEFITS OF PRIVILEGE OUTWEIGH THE COSTS
Grace M. Giesel, Law Professor-Brandeis School of Law, 2010, "Upjohn Warnings, the Attorney-Client
Privilege, and the Principles of Lawyer Ethics--Achieving Harmony, 65 U. Miami L. Rev. 109, p. 127-8
The generally recognized cost of the privilege is that applying the privilege in a particular situation may
keep relevant evidence away from the truth-finder. This cost probably is less than one might imagine because
the privilege protects communications between client and lawyer, but does not protect the facts underlying the
communications.
Even with this downside, the attorney-client privilege has been an accepted creature of the law for
centuries. This acceptance indicates a shared belief that the benefits of the privilege ultimately outweigh the
costs. Yet, courts recognize and fear the obstruction of the truth that the attorney-client privilege may cause. As a result, courts
have "strictly confined [the privilege] within the narrowest possible limits consistent with the logic of its
principle." As a United States District Court for the District of New Jersey recently stated:
While it is true that the attorney-client privilege is narrowly construed because it "obstructs the truthfinding 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.
Placing the burden on the claimer to prove the applicability of the privilege also reflects a healthy skepticism of it.
BENEFITS OF PRIVILEGE OUTWEIGH THE COSTS
David A. Nelson, Law Student - Northwestern, 1992, "Attorney-Client Privilege and Procedural
Safeguards: Are They Worth the Costs?", 86 Nw. U. L. Rev 368, p. 383-4
The attorney-client privilege is the oldest of all the confidential privileges. The English courts first recognized the privilege in the
1500s. Although created to protect the attorney from forced violation of his oath of secrecy to the client, it is now well established that
the purpose behind the privilege is to promote full and open communication between the attorney and
client. As a result of this communication, an attorney will be better able to represent his client in a competent manner.
The attorney-client privilege also promotes "broader public interests in the observance of law and
administration of justice" by providing the attorney and client with a confidential forum in which to
communicate and resolve the client's problem. While the privilege may suppress important evidence, it has
been determined that the need to allow the attorney to provide sound legal advice generally outweighs any
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disadvantage of withholding evidence in a particular case. For these reasons, the attorney-client privilege is one of the
cornerstones of our judicial system.
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Presumption Against Abrogating Privilege
PRESUMPTION WITH PROTECTING PRIVILEGE
Ronald Goldfarb, Attorney, 2009, In Confidence: When to Protect Secrecy and When to Require
Disclosure, p. 231
Thus, the law should encourage and protect confidentiality as much as possible. Associations -- professional and
others -- that have rules governing confidentiality should enforce them. Private confidentiality agreements ,
explicit or implicit under the circumstances, should be enforced unless there are overriding public-policy reasons for
breaching such agreements.
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Utilitarianism Justifies Attorney-Client Privilege
UTILITARIANISM JUSTIFIES ATTORNEY-CLIENT PRIVILEGE -- BENEFITS OUTWEIGH
HARMS
Thomas P. Glynn, Law Professor, Seton Hall, 2002, "Federalizing Privilege", 52 Am. U.L. Rev. 59, p.
69-70
Rather, the widely accepted, overarching purpose for the modern attorney-client privilege is utilitarian or
instrumental. The predominant modern rationale for the privilege is that it fosters client candor and full
communication between attorneys and clients, which produce social benefits that outweigh the privilege's
social costs. The Supreme Court has unambiguously endorsed this view:
[The privilege's] purpose 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 . 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. Correspondingly, without the attorney-client privilege, the argument goes, clients would
be deterred from making open and candid disclosures to their attorneys. Absent reasonable assurance that such disclosures could not
be used against them later - via their attorney's testimony or otherwise - clients would be unwilling to disclose embarrassing,
unpleasant, or otherwise harmful facts.
FULL UTILITARIAN BALANCING JUSTIFIES BROAD ATTORNEY-CLIENT PRIVILEGE
Harvard Law Review, 1985, "Privileged Communication: III. Attorney Client Privilege" 98 Harv. L. Rev.
1450, p. 1504-5
The utilitarian and non-utilitarian justifications of the privilege are not as irreconcilable as their proponents imply.
In fact, the traditional concerns of non-utilitarians can be incorporated within a broad utilitarian framework
that takes account of the full range of benefits to which the attorney-client privilege gives rise. This full
utilitarianism is more consistent with the principle of weighing all social benefits than is the balancing
traditionally done by privilege utilitarians, because full utilitarianism considers additional benefits that accrue from the
attainment of the rights valued by the non-utilitarians. Full utilitarianism is also consistent with non-utilitarian
principles because it takes account of the relative weight of the various rights with which non-utilitarians
are concerned. This Subsection undertakes a full utilitarian balancing of the costs and benefits of the attorneyclient privilege and argues that this approach justifies a broad application of the privilege except when it protects
clients who rely on attorneys to further prospective crime or fraud.
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Attorney-Client Privilege Grounded in Utilitarian and NonUtilitarian Justifications
ATTORNEY-CLIENT PRIVILEGE JUSTIFIED THROUGH UTILITARIANISM AND RIGHTS
Harvard Law Review, 1985, "Privileged Communication: III. Attorney Client Privilege" 98 Harv. L. Rev.
1450, p. 1501
The attorney-client privilege has for so long been trumpeted as the oldest of the interpersonal communication privileges that the
present-day issue "is not whether it should exist, but precisely what its terms should be." Nonetheless, debate over why the privilege
should exist has continued throughout its history to the present time. Two principal theories have been advanced to
justify the attorney-client privilege. One justification is based on utilitarian principles and would privilege
attorney-client communications only if doing so would create a degree of social good that outweighs the
harm that it would do to the judicial system's fact-finding process. The other justification is non-utilitarian and
would privilege attorney-client communications not because of any beneficial consequences that can be
achieved through the privilege, but because compelled disclosure of attorney-client communications is
itself intrinsically wrong in certain circumstances. This non-utilitarian justification often takes the form of a
theory of rights.
PRIVILEGES SERVE BOTH PRAGMATIC AND HUMANISTIC ENDS
Ronald Goldfarb, Attorney, 2009, In Confidence: When to Protect Secrecy and When to Require
Disclosure, p. 227
Eliminating these privileges might discourage other competing values --both pragmatic and humanistic--that
are also reflective of our democratic system. Pragmatic, because they are considered necessary to encourage
relationships deemed important enough to warrant incursions on the search for truth at trial. Humanistic,
because they reflect a social value system that respects human autonomy and the need for zones or enclaves
of privacy that are protected from invasions. The pragmatic approach has been based on a questionable behavioral
assumption; the humanistic rationale is based on a valuable normative assumption.
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Attorney-Client Privilege Key to Just and Moral System
SOCIETY HAS AN INTEREST IN PROTECTING THE PRIVILEGE THAT IS KEY TO A JUST
AND MORAL SYSTEM
Ronald Goldfarb, Attorney, 2009, In Confidence: When to Protect Secrecy and When to Require
Disclosure, p. 64
In addition to the "instrumental" rationale, which argues that without the attorney-client privilege clients
would not consult attorneys, is the "humanistic" rationale. Some scholars contend that personal autonomy or
privacy, some basic sense of decency, is what is at stake in the attorney-client privilege. The inquiry should be made, one
treatise suggests, about what kind of society would empower courts to compel intimates to betray their trusts .
As fiduciary agents of their clients, attorneys have a duty of loyalty to them, and society has an interest in
this social investment in a just and moral system.
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Attorney-Client Privilege Key to Justice
FULL AND FRANK ATTORNEY-CLIENT COMMUNICATION ESSENTIAL TO JUSTICE
Thomas P. Glynn, Law Professor, Seton Hall, 2002, "Federalizing Privilege", 52 Am. U.L. Rev. 59, p. 70
In addition to serving the independent interests described above, full client disclosure and the corresponding interchange between
attorney and client purportedly produce several social benefits. First, full and frank communication is necessary for the
provision of effective legal representation. In the litigation context, for example, attorneys otherwise would be
deprived of information necessary for the preparation and anticipation of claims and defenses, which would
harm both the client's interests and the adversarial process. The vindication of rights in, and overall efficacy
of, our justice system often depends on sound and adequate legal advice and assistance . Outside the litigation
context, candid interchange between attorney and client is necessary to assess legal risks and consequences, and to allow counseling in
avoidance of risks, adverse consequences, and litigation in our modern, complex regulatory regime.
ATTORNEY-CLIENT PRIVILEGE PROMOTES PUBLIC INTEREST IN FURTHERING THE
ADMINISTRATION OF JUSTICE
Adam M. Chud, Law Student, 1999, "In Defense of the Government Attorney-Client Privilege," 84
Cornell L. Rev. 1682, p. 1688-9
The attorney-client privilege is the oldest federal testimonial privilege. As the Supreme Court has noted, the law
traditionally has exempted confidential discussions between lawyer and client from disclosure "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." Proponents of the attorney-client
privilege believe that it improves the quality of the communications between lawyer and client and therefore
improves the quality of the legal advice clients receive. If clients hesitate to speak openly with their attorneys, lawyers
cannot accurately inform clients of their legal obligations and advise them of the best way to meet those obligations. This law
compliance function, the Supreme Court has said, serves the public's interest.
COMPLEXITY OF LEGAL SYSTEM NECESSITATES PRIVILEGE FOR JUST OUTCOMES
Ronald Goldfarb, Attorney, 2009, In Confidence: When to Protect Secrecy and When to Require
Disclosure, p. 62-3
Once business required the involvement of professionals trained in the administration of justice and
jurisprudence, it became necessary that citizens be able to consult with their skilled representatives and feel
safe that in doing so their private thoughts and remarks would be protected from disclosure. "The communication must be
privileged to the utmost extent, or it will not be made," an 1837 case declared. And the privilege covered not just
communication in connection with court cases but general counseling as well, recognizing that professional advice
was required to avoid litigation as well as to engage in litigation. Even the identification of a client can be privileged if it would be
tantamount to revealing confidential information about that client. The privilege is mutual and may be claimed by the client or by the
attorney on behalf of the client, but it can be waived only by the client. One modern court called the privilege "the most
sacred of all legally recognized privileges."
SOCIETAL INTEREST IN JUST OUTCOMES MET THROUGH ATTORNEY-CLIENT
PRIVILEGE
Mary C. Daly, Law Professor-Fordham University, 1996, "Executing the Wrong Person: The
Professional's Ethical Dilemmas", 29 Loy. L.A.L. Rev. 1611, p. 1624
Confidentiality does more than enhance the individual attorney-client relationship, however. Its proponents also
advance a utilitarian justification. Based on arguments very similar to those discussed in the preceding paragraphs, they contend that
confidentiality improves the quality of legal advice that lawyers give clients. Improved legal advice leads to
more just verdicts and settlements and to more fair transactions, thus benefitting society as a whole.
ATTORNEY-CLIENT PRIVILEGE IMPROVES THE ADMINISTRATION OF JUSTICE
Grace M. Giesel, Law Professor-Brandeis School of Law, 2010, "Upjohn Warnings, the Attorney-Client
Privilege, and the Principles of Lawyer Ethics--Achieving Harmony, 65 U. Miami L. Rev. 109, p. 125-6
The primary rationale for the privilege is utilitarian. By protecting communications between attorneys and clients, the
privilege encourages clients to fully and completely disclose information. Only with this complete
information can attorneys render competent and proper legal assistance and advice. The assumption is that
clients will not be so open and disclose so much and thus cannot obtain such assistance and advice unless
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those clients are confident that the communications with attorneys will remain confidential . Long ago in
Annesley v. Anglesea, an English court stated:
No man can conduct any of his affairs which relate to matters of law, without employment and consulting with an attorney; even if he
is capable of doing it in point of skill, the law will not let him; and if he does not fully and candidly disclose every thing that is in his
mind, which he apprehends may be in the least relative to the affair he consults his attorney upon, it will be impossible for the attorney
properly to serve him.
Two hundred and thirty-eight years later, the United States Supreme Court in Upjohn Company v. United States reiterated this
rationale and expanded upon it by noting that the attorney-client privilege encourages client candor, full
disclosure, and frequent consultation by the client with the attorney. This complete candor and consultation
means that attorneys can counsel clients as to how to conduct themselves within the bounds of the law.
Ultimately, the administration of justice improves.
PRIVILEGE IS ESSENTIAL FOR FULL AND FRANK ATTORNEY-CLIENT
COMMUNICATION
Julie Peters Zamacona, Law STudent, 1999, "Attorney-Client Privilege Survives the Death of the
Client..." 21 U. Ark. Little Rock L. Rev. 277, p. 286-7
Beyond philosophical theories, there is surprisingly little empirical evidence regarding the actual, real-time effect of confidentiality on
client behavior. The few studies that have been performed indicate that clients frequently do not understand the privilege, but that
many attorneys and still feel that a general awareness of the privilege's existence encourages open communication. The studies that
have been performed lead to few, if any, firm conclusions. According to two studies, many attorneys and clients believe
that without the confidential communications privilege, attorney-client communication would be hampered.
Another study suggests that limited exceptions to the confidential communications privilege might not
curtail open communication
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Attorney-Client Privilege Increases Social Welfare Through
Improved Respect for the Law
ATTORNEY-CLIENT PRIVILEGE FACILITATES LAW COMPLIANCE
Thomas P. Glynn, Law Professor, Seton Hall, 2002, "Federalizing Privilege", 52 Am. U.L. Rev. 59, p. 71
In addition, greater client candor and communication facilitates ongoing compliance with the law. Legal rules
are complex and fact-specific in application; attorneys are better situated to appreciate the meaning and effect of
such rules and to determine whether or not actions conform to these rules . Moreover, legal compliance
enhances social welfare by furthering the underlying aims of the law.
ATTORNEY-CLIENT PRIVILEGE SERVES MULTIPLE SOCIAL GOODS
Harvard Law Review, 1985, "Privileged Communication: III. Attorney Client Privilege" 98 Harv. L. Rev.
1450, p. 1505-7
A full utilitarian conception would incorporate the value that non-utilitarians express as a layman's right to know the law and deal with
its complexity. This right stems from a basic principle inherent in the concept of the rule of law, that " the law must be capable
of being obeyed" and " of guiding the behaviour of its subjects." This right illuminates two sets of benefits
that utilitarians traditionally overlook when considering the privilege .
The first set of additional benefits accrues when a client has an attorney act as his representative in litigation .
People can rest assured that they will not face unjust penalties only when they are able to defend themselves fully against any charges
may face. Litigation, however, presents an imposing array of complex formalities and modes of discourse. Laymen cannot be expected
to navigate their way through these complexities without attorneys. The privilege preserves the ability of laymen to
defend themselves vigorously and thereby assures them that the law will be applied justly. Moreover, the right
to be represented by a lawyer is constitutionally guaranteed in both the criminal and civil contexts. The privilege
protects the effective exercise of this right by insulating the attorney-client relationship from state intrusion.
The second set of additional benefits accrues when a client consults an attorney for advice concerning his rights
and responsibilities under the law. The ideal of the rule of law is a society in which individuals are able to
conform their behavior to the law. The law is so complex, however, that people need the assistance of counsel to
understand its dictates. A murky understanding of the law will deny an individual the repose that Professor Joseph Raz calls
"[p]redictability in one's environment." Liberty in fact, and not merely in form, requires that an individual be secure in the
expectations essential to making and carrying out life's plans. If an individual cannot understand the rules
by which he must act, his security and autonomy are compromised . Thus, by protecting a client when he seeks to
learn the dictates of the law, the attorney-client privilege protects the client's ability to pursue his own goals
within the confines of the law.
Conformity to the rule of law also increases the law's effectiveness in pursuing whatever goals are assigned
to it. Laymen can conform only to laws they understand. Without the aid of a lawyer's advice, people may
unknowingly break laws that they would have been willing to follow. Therefore, the attorney-client privilege
also furthers social good by promoting compliance with the law.
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Attorney-Client Privilege Key to Constitutional Due Process
Protections
ATTORNEY-CLIENT PRIVILEGE IMPORTANT TO 5TH AND 6TH AMENDMENT RIGHTS
Michael B. Dashjian, Law Student, 1982, "The Attorney-Client Privilege and the Criminal Defendant's
Constitutional Rights," California Law Review, July, 70 Calif. L. Rev. 1048, p. 1050-1
While the attorney-client privilege did not originate as a constitutional doctrine, in criminal cases it plays an important
role in protecting the defendant's fifth and sixth amendment rights. This Part establishes that in criminal cases
the attorney-client privilege is essential to both the fifth amendment privilege against self-incrimination and
the sixth amendment right to counsel. It further shows that without out the attorney-client privilege, a
constitutionally impermissible tension is created between those rights. Finally, it shows that the Meredith exception
to the attorney-client privilege is constitutionally defective because it creates such an impermissible tension between a defendant's
fifth and sixth amendment rights.
MULTIPLE JUSTIFICATIONS FOR ATTORNEY-CLIENT PRIVILEGE PROTECTIONS
Thomas P. Glynn, Law Professor, Seton Hall, 2002, "Federalizing Privilege", 52 Am. U.L. Rev. 59, p.
67-9
Throughout the attorney-client privilege's long history, a number of justifications have been offered to support the
protection it affords. For example, in 1768, Blackstone suggested that the privilege is an extension of the right
of individuals to avoid self-incrimination. Modern commentators have contended that the privilege is
necessary to preserve a criminal defendant's Fifth Amendment privilege against self-incrimination and
Sixth Amendment right to counsel. Others have argued that the privilege is necessary to uphold the
professional relationship between the attorney and client: without it, there could be no confidentiality and corresponding trust
and loyalty. Similarly, some commentators suggest that the attorney's traditional role as an advocate in our
adversarial system would be seriously undermined if attorneys could be utilized routinely as a source of
information about the client. Still others have contended that the attorney-client privilege is necessary to
protect the client's privacy or dignitary interest in preventing interference with the client's relationship with a close advisor.
Each of these justifications is consistent with the protections afforded by the modern privilege, and each
continues to receive scholarly recognition and support. Indeed, each justification highlights an important interest protecting against self-incrimination, facilitating maintenance of the trust relationship, guarding the integrity of the adversarial system,
and respecting legitimate expectations of privacy and human dignity - that the privilege ought to continue to serve. Thus, any
discussion of the adequacy of current privilege doctrine or reforms must include consideration of these interests. Yet none of these
justifications can fully explain the modern privilege, which applies in criminal and civil contexts, protects attorney-client
communications made in and outside of litigation, is generally unqualified, and affords protection for both natural and corporate
persons.
ATTORNEY-CLIENT PRIVILEGE PROTECTED BY 5TH AND 6TH AMENDMENT
Jocelyn N .Sands & Roy Conn, Law Students 1984, "Confidentiality and the Lawyer's Conflicting Duty,"
27 How. L.J. 329, p. 333-4
The attorney-client privilege is protected by the fifth and sixth amendments o f the United States Constitution: the
fifth amendment, as it relates to the privilege against self incrimination and the sixth amendment, as it provides for effective assistance
of counsel. In order to paint a complete picture about the matter about which the client has sought legal
representation, he or she may reveal incriminating information to the attorney. In such a situation, the
feasibility of seeking legal representation is based on an implicit promise that the information revealed to
the attorney by the client will not be disclosed to a tribunal. Without such assurances the potential client
would find himself in a "catch-22" situation. Should he retain a lawyer, he would not get the benefits of representation
without risking incrimination. A pro se appearance would be at the cost of not having the legal expertise which may bring him a
favorable solution to his problem.
ATTORNEY CLIENT PRIVILEGE IMPORTANT TO 5TH AND 6TH AMENDMENT RIGHTS
Harry I. Subin, Law Professor-NYU, 1985, "The Lawyer as a Superego: Disclosure of Client Confidences
to Prevent Harm," 70 Iowa L. Rev. 1091, p. 1132
In sum, it is plain that the attorney-client privilege does have constitutional implications, relating both to selfincrimination and the right to counsel. When a demand is made of an attorney to disclose privileged
communications, the defendant's fifth amendment rights may be jeopardized . Such communications can consist of
the client's statements, or of the testimonial aspects of his transmission of tangible evidence. In either case a court should not permit
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disclosure in the absence of a constitutionally adequate immunity provision. The invocation of such a provision would, however,
resolve the self-incrimination problem.
As to the right of access to counsel, again it is possible that a constitutional issue can be raised by requiring
the attorney to disclose communications, whether they are privileged or not, because such disclosure would
undermine the attorney-client relationship. If the attorney is compelled to disclose, however, the client's sixth amendment
rights can be protected by providing the client with another attorney or an opportunity to retain one.
ATTORNEY-CLIENT PRIVILEGE IMPORTANT TO MANY CONSTITUTIONAL RIGHTS
Ronald Goldfarb, Attorney, 2009, In Confidence: When to Protect Secrecy and When to Require
Disclosure, p. 63
The privilege has been honored in Supreme Court opinions, bar rules, and state statutes. It is spelled out in
the ABA's Model Rules of Professional Conduct as a "hallmark of the client-lawyer relationship," and in the
Restatement of the Law Governing Lawyers. It is even deemed by some to be integral to the Sixth Amendment's right to
counsel, the Fifth Amendment's protection against self-incrimination, and the right to privacy. It is subject to
few exceptions: to prevent a crime or fraud, to defend oneself, or if the client agrees.
CONFIDENTIALITY GROUNDED IN CONSTITUION
Ronald Goldfarb, Attorney, 2009, In Confidence: When to Protect Secrecy and When to Require
Disclosure, p. 231
Confidentiality is a goal, not an absolute, and one that must be balanced against competing goals With roots in
everyday experience and the common law and expression in modern statutes and widely held value systems, confidentiality has a
historic and precedential claim to respect and protection. Confidentiality also has derivative constitutional
sources.
PRIVILEGE IS A SUBSTANTIVE RIGHT
Bankim Thanki, Queens Counsel, 2011, The Law of Privilege, Second Edition, p. 224
As was noted in Chapter 1, legal professional privilege is not simply a rule of evidence, but a substantive right
and "a fundamental condition on which the administration of justice as a whole rests." As a matter of practice,
issues of privilege tend to arise in a procedural context, entitling the client (and his lawyer on his behalf) to refuse to disclose for
inspection documents or information to which the privilege attaches. This will usually be in the context of disclosure. In particular,
the right to claim privilege over a document entitles a party to withhold inspection of the document from his opponent under CPR Part
31.
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Attorney-Client Privilege Key to Sixth Amendment Protections
ATTORNEY-CLIENT PRIVILEGE CRITICAL TO EFFECTIVE REPRESENTATION
IMPLICATED IN 6TH AMENDMENT
Michael B. Dashjian, Law Student, 1982, "The Attorney-Client Privilege and the Criminal Defendant's
Constitutional Rights," California Law Review, July, 70 Calif. L. Rev. 1048, p. 1051
The Sixth Amendment provides that "[i]n all criminal cases, the accused shall enjoy the right . . . to have
the Assistance of Counsel for his defense." This constitutional right is only fulfilled if an attorney provides
his client with reasonably effective legal assistance. Although some courts and commentators have stated that effective
assistance requires a privilege for attorney-client communications, most of them have not set forth their reasoning in
detail. An examination of case law, however, shows strong authority for the proposition that a limitation on
attorney-client confidentiality results in a denial of effective assistance of counsel because it deprives a
defendant of a partisan advocate and restricts attorney-client communications.
PRIVILEGE CRITICAL TO PARTISAN ADVOCACY & INVESTIGATION ABILITY WHICH
6TH AMENDMENT RELIES ON
Michael B. Dashjian, Law Student, 1982, "The Attorney-Client Privilege and the Criminal Defendant's
Constitutional Rights," California Law Review, July, 70 Calif. L. Rev. 1048, p. 1052-4
If a state denied a criminal defendant the attorney-client privilege, the client's sixth amendment rights
would be violated because he would be deprived of an active, partisan advocate. A fundamental premise of
American law is that justice is achieved through the adversarial system. Each side presents its case and challenges
the other's arguments. This is accomplished mainly through the use of attorneys who are advocates for the parties they represent.
Active, partisan advocacy, however, is impossible when a defense attorney is expected to give evidence to
the prosecution while he is supposed to defend his client. Without the attorney-client privilege, defense
attorneys could routinely be subpoenaed to give evidence against their clients. Far from being partisan advocates,
they would instead become "medium[s] of confession against their clients." Thus, active, partisan advocacy can only be
achieved if the attorney cannot be required to divulge his client's confidences to the prosecution.
The denial of the attorney-client privilege would also violate the client's sixth amendment rights because it
would damage the attorney's ability to investigate his client's case. To provide effective legal assistance, an
attorney must investigate the facts of his client's case. A proper investigation can only be made if an attorney is
able to communicate with his client and ascertain the client's version of the facts. Based on those communications,
the attorney may then perform other functions required for an adequate defense, such as interviewing witnesses or examining physical
evidence. Without the attorney-client privilege, however, the client would be reluctant to confide in his
attorney. Thus, by fostering attorney-client communication, the attorney-client privilege helps to ensure that an
attorney has whatever information might be necessary for a full investigation.
When an action of the state prevents a defense attorney from discharging functions vital to effective
representation of his client, a sixth amendment violation will be found without a need for showing
prejudice. Thus, in Geders v. United States, the Supreme Court held that a court order preventing a criminal defendant from
communicating with his attorney during an overnight recess deprived him of his sixth amendment right to counsel. Because such
recesses are frequently necessary for attorney-client communications, the Court reasoned, barring an attorney from meeting with his
client could stifle the attorney's ability to conduct a proper defense. The defendant was not required to show prejudice to obtain a
reversal; as another Supreme Court case stated, such a requirement would require "unguided speculation" in cases where counsel is
prevented from carrying out his normal functions. These principles demonstrate that a state's abridgment of the
attorney-client privilege, by limiting the attorney's ability to communicate with his client and to investigate
the case, would deny the client effective assistance of counsel.
ATTORNEY-CLIENT PRIVILEGE GROUNDED IN 6TH AMENDMENT
Paul C. Giannelli, Law Professor-Case Western Reserve, 2009, Understanding Evidence, p. 587
The attorney-client privilege is "the oldest of the privileges for confidential communications known to the
common law." A separate qualified privilege for work product has also been recognized.
The attorney-client privilege is intended to permit clients to receive informed legal advice and effective
representation, which depends on "full and frank communication between attorneys and their clients." This,
in turn, is thought to "promote broader public interests in the observance of law and 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." In criminal cases, the Sixth Amendment right to the
effective assistance of counsel also supports the privilege.
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PRIVILEGE CRITICAL TO THE RIGHT TO EFFECTIVE COUNSEL
Ronald Goldfarb, Attorney, 2009, In Confidence: When to Protect Secrecy and When to Require
Disclosure, p. 59
Francis Bacon, Of Counsel
The greatest trust between men...is the trust of giving counsel. For in other confidences men commit the parts of life;
their lands, their good, their children, their credit. Some particular affair; but to such as they make their counselors they commit the
whole, by how much the more they are obliged to all faith and integrity. The lawyer must have the whole of his client's
case...to give any useful advice...That the whole will not be told to counsel unless the privilege is
confidential, is perfectly clear.
LEGAL REPRESENTATION BETTER WHEN ATTORNEY KNOWS ALL THE FACTS
Stephen Ellmann, Law Professor, NYU, 2000, "Symposium Case Studies in Legal Ethics: Truth and
Consequences," 69 Fordham L. Rev. 895, p. 901
Ordinarily, it is in the client's interest for his lawyer to know the truth. A lawyer represents her client best
when she knows all of the relevant circumstances. Only with this complete knowledge can a lawyer present
the client's case or position in the most favorable light, avoid disastrous surprises, devise strategies to
handle whatever weak points exist as well as they can be handled, and ensure that the eventual outcome of
the case fits the client's actual wishes and interests as accurately as possible . For pragmatic and professional
reasons, therefore, seeking the truth makes sense.
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Attorney-Client Privilege Key to Fifth Amendment Protections
ATTORNEY-CLIENT PRIVILEGE CRITICAL TO 5TH AMENDMENT PROTECTION
AGAINST INCRIMINATION
Michael B. Dashjian, Law Student, 1982, "The Attorney-Client Privilege and the Criminal Defendant's
Constitutional Rights," California Law Review, July, 70 Calif. L. Rev. 1048, p. 1054
The fifth amendment provides that "[n]o person . . . shall be compelled in any criminal case to be a witness
against himself." The amendment prohibits compelled testimonial disclosures which might serve as a "link in a chain" of evidence
leading to a criminal conviction. The privilege against self-incrimination, like the right to counsel, has frequently been
linked to the attorney-client privilege.
Some courts have stated in dictum that the attorney-client privilege is essential in criminal cases if the client is to maintain his fifth
amendment protection against self-incrimination. In People v. Belge, a New York court said: "[T]he criminal defendant's
self-incrimination rights become completely nugatory if compulsory disclosure can be exacted through his
attorney." Similarly, in State v. Kociolek, the New Jersey Supreme Court stated that the "attorney-client
privilege in this country . . . [i]s indispensable to the fulfillment of the constitutional security against selfincrimination. . . . "
PRIVILEGE NECESSARY TO VIOLATE 5TH AMENDMENT PROTECTION VIA
COMPULSION
Michael B. Dashjian, Law Student, 1982, "The Attorney-Client Privilege and the Criminal Defendant's
Constitutional Rights," California Law Review, July, 70 Calif. L. Rev. 1048, p. 1055
Compulsion of an accused is found whenever the accused must suffer a penalty for invoking his fifth
amendment right to remain silent. For example, in Garrity v. New Jersey, the Supreme Court held that statements obtained
under threat of removal from public office could not be used in subsequent criminal proceedings. The defendants' choice either to
forfeit their jobs or to incriminate themselves caused the statements to be "infected by coercion." It was considered irrelevant that the
defendants in Garrity actually chose to make the incriminating statements, as the statutory scheme which penalized a defendant for
invoking his right to remain silent was itself sufficient coercion to violate the fifth amendment.
Denial of the attorney-client privilege is compulsion because it penalizes the client's right of effective
counsel if he wishes to avoid self-incrimination. Without the attorney-client privilege, an attorney could
routinely be subpoenaed to produce his communications with his client. The only way the client could
prevent self-incriminating statements from reaching the prosecution would be for him to limit his
communications with his attorney. If this occurs, the attorney may not receive all the facts necessary for an
adequate defense. As shown earlier, such limitations on communication between attorney and client constitute automatic
violations of the sixth amendment guarantee of effective counsel. Thus, without the attorney-client privilege, the client
loses his constitutional right to counsel in order to avoid self-incrimination. This is compulsion violating
the fifth amendment.
ORIGINAL JUSTIFICATION FOR ATTORNEY CLIENT PRIVILEGE GROUNDED IN
PROTECTION AGAINST SELF INCRIMINATION
Harvard Law Review, 1985, "Privileged Communication: III. Attorney Client Privilege" 98 Harv. L. Rev.
1450, p. 1502
Historians do not agree on why courts originally granted a privilege for attorney-client communications. They do agree, however,
that the original justification for the privilege was non-utilitarian. The privilege may have first arisen as a judicial
extension of the right of individuals to avoid self-incrimination. As Blackstone stated in 1768:
no man is to be examined to prove his own infamy. And no counsel, attorney, or other person, intrusted
with the secrets of the cause by the party himself, shall be compelled, or perhaps allowed, to give evidence of
such conversation or matters of privacy, as came to his knowledge by virtue of such trust and confidence .
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Attorney-Client Privilege Central Feature of Justice System
ATTORNEY-CLIENT PRIVILEGE HAS LONG BEEN A CENTRAL PART OF ANGLOAMERICAN JUSTICE SYSTEMS
Thomas P. Glynn, Law Professor, Seton Hall, 2002, "Federalizing Privilege", 52 Am. U.L. Rev. 59, p.
65-7
The attorney-client privilege is the oldest of the evidentiary privileges, predating the Constitution. The AngloAmerican privilege developed contemporaneously with the right of compulsory process, and the availability of the doctrine is
unquestioned in every jurisdiction in this country. Indeed, some form of the privilege is probably guaranteed in
the criminal context by the Sixth Amendment to the Constitution and parallel state constitutional provisions. In the civil
context, the protections that the privilege provides do not rise to the constitutional level, but such protections are recognized by the
federal courts and all fifty states.
Despite the privilege's long history and the enormous amount of litigation it has spawned, the basic elements of the privilege
have remained largely the same for over a century. Unless it is waived, the attorney-client privilege protects
confidential communications between the client and attorney made for the purpose of obtaining or
providing legal advice. Of course, questions regarding each of these elements generate controversy - i.e., who is the client, when
is a communication made in confidence, when are attorney communications to the client privileged, and when is confidentiality
waived.
LONG TRADITION OF SUPPORT FOR ATTORNEY-CLIENT PRIVILEGE
Jeffrey R. Baker, Law Professor - Faulkner University School of Law, 2011, "Necessary Third Parties:
Multidisciplinary Collaboration and Inadequate Professional Privileges in Domestic Violence Practice," 21
Colum. J. Gender & L. 283, p. 325-7
The attorney-client privilege is the oldest, longest recognized testamentary privilege in legal history. Tracking
Wigmore's authoritative narrative, the privilege appears in many historic and modem treatises. The privilege even existed in
primitive form among the advocates of Rome.
In early English law, the privilege was premised upon a lawyer's own theory of oath and honor . By the late
1700s, the doctrine shifted to the client and the client's fear of disclosure, looking to "the necessity of providing
subjectively for the client's freedom of apprehension in consulting his legal advisor." This theory is the root of the privilege
in America--recognizing a cost to truth-seeking, but balancing it against the necessity of free, unguarded
communication between client and attorney. The theory assumes privilege imposes no real cost on truth seeking because,
without a promise of confidentiality vested in the lawyer, the client would not make the statements or admissions at all.
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Attorney-Client Privilege Central Feature of the Adversarial
Justice System
PRIVILEGE FACILITATES EFFECTIVE FUNCITONING OF ADVERSARIAL SYSTEM
Nancy J. Moore, Law Professor-Rutgers, 1985/1986, "Limits to Attorney-Client Confidentiality: A
'Philosophically Informed' And Comparative Approach to Legal and Medical Ethics," 36 Case. W. Res.
177, p. 204-5
The Advocate in the Adversary System. The adversary system of litigation is characterized by three essential
elements: an impartial tribunal, formal rules of procedure, and parties who are assigned the responsibility
for presenting their own best cases and challenging the presentation of their opponents. The primary duty of
the advocate in the adversary system is "one-sided partisan zeal," which is expected to produce, at least in the long
run, either protection of the individual against the power of the state (in the case of criminal defendants) or factually
and legally accurate verdicts (in the case of civil plaintiffs and defendants). In this scheme, the duty of confidentiality is
but a "collateral duty" designed to enhance the quality of partisan advocacy, under the utilitarian
assumption (borrowed from the law of evidence) that confidentiality encourages clients to give lawyers the
information necessary for effective advocacy.
Keeping in mind the subordinate position of the duty of confidentiality, it should be obvious that the critical questions under
the adversary system are not what limits should be placed on confidentiality, but rather what limits should
be placed on partisan zeal in order that the various goals of the adversary system may be best achieved.
There are already a number of well-accepted limitations on advocacy -- for example, rules which prohibit a lawyer from
lying, from counseling or assisting clients in crimes and frauds, and, in civil cases, from violating rules requiring
truthful pleading and compliance with extensive discovery requests. These limitations may well have the effect of
deterring clients, even "innocent" clients, from full disclosure, but they have been determined to be justifiable nonetheless.
PRIVILEGE NECESSARY FOR EFFECTIVE ADVERSARIAL SYSTEM
Auburn K. Daily & S. Britta Thornquist, Law Students-Georgetown University, 2003, "Has the
Exception Outgrown the Privilege?", 16 Geo. J. Legal Ethics 583, p. 583
Competent legal advice requires a complete understanding of the circumstances surrounding a client's
needs and such an understanding may only be gained by encouraging complete disclosure within the attorneyclient relationship; if a client fears subsequent disclosure of communicated information in a court of law, then
full disclosure is unlikely; and, fully informed advice, or advocacy in our adversarial system, promotes the
administration of justice.
EFFECTIVE REPRESENTATION BY COUNSEL CRITICAL TO THE ADVERSARY SYSTEM
Martin R. Gardner, Law Professor-University of Nebraska, 2000, "The Sixth Amendment Right to
Counsel and its Underlying Values: Defining the Scope of Privacy Protection," 90 J Crim. L. &
Criminology 397, p. 397-8
The Sixth Amendment has been described by leading commentators as the central feature of our adversarial
system, nevertheless "scholars, lawyers, and judges have often lost their way" in their attempts to understand the Amendment's scope
and underlying values. Such observations are particularly fitting in the context of the right to counsel provision. A search of the
scholarly literature reveals a variety of viewpoints regarding the interests embraced by the Sixth
Amendment's promise that "in all criminal prosecutions, the accused shall ... have the Assistance of
Counsel for his defense." Moreover, the reported cases bespeak a body of law lacking theoretical cohesion.
EFFECTIVE REPRESENTATION BY COUNSEL CRITICAL TO A FAIR TRIAL
Martin R. Gardner, Law Professor-University of Nebraska, 2000, "The Sixth Amendment Right to
Counsel and its Underlying Values: Defining the Scope of Privacy Protection," 90 J Crim. L. &
Criminology 397, p. 399-400
The most prominent value bottoming the Sixth Amendment right to counsel provision is the concern for
providing fair trials for criminal defendants. The cases seek to protect the fairness value not only during the actual trial but
also under certain circumstances during the pretrial phase.
In Gideon v. Wainwright, the Court addressed the unfairness inherent when defendants are financially
unable to obtain counsel during trial. In Gideon, the Court recognized the applicability of the Sixth Amendment counsel right
to the States and held that indigent defendants were entitled to counsel at state expense. The court noted:
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Reason and reflection require us to recognize that in our adversary system of criminal justice, any person
haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.
This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish
machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public's interest in
an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get
to prepare and present their defenses. That government hires lawyers to prosecute and defendants who have the
money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal
courts are necessities, not luxuries ... From the very beginning, our state and national constitutions and laws have laid great
emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant
stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a
lawyer to assist him.
The Gideon Court recognized the unfairness of forcing a defendant untrained in the law to defend himself against the power and legal
acumen of the State. Fairness requires rough equality between adversarial opponents .
ATTORNEY-CLIENT CONFIDENTIALITY FOUNDATION OF EFFECTIVE ADVERSARIAL
SYSTEM
Fred C. Zacharias, Law Professor Cornell Law School, 1989 "Rethinking Confidentiality," 74 Iowa L.
Rev. 351, p. 358
The primary argument in favor of attorney-client confidentiality in civil cases rests on a three-step
syllogism. First, for the adversary system to operate, citizens must use lawyers to resolve disputes and the
lawyers must be able to represent clients effectively. Second, attorneys can be effective only if they have all
the relevant facts at their disposal. Third, clients will not employ lawyers, or at least will not provide them with
adequate information, unless all aspects of the attorney-client relationship remain secret. Thus, the systemic
argument goes, attorney-client confidentiality is the foundation of orderly and effective adversarial justice.
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Attorney-Client Privilege Grounded in Various Moral Theories
ATTORNEY-CLIENT PRIVILEGE GROUNDED IN DEONTOLOGICAL AND UTILITARIAN
THEORY
Nancy J. Moore, Law Professor-Rutgers, 1985/1986, "Limits to Attorney-Client Confidentiality: A
'Philosophically Informed' And Comparative Approach to Legal and Medical Ethics," 36 Case. W. Res.
177, p. 246
As in the physician-patient relationship, the principle of confidentiality in the attorney-client relationship is wellgrounded in both utilitarian and deontological moral theory. At least with respect to individual clients, the attorney
is clearly under a prima facie duty not to disclose information relating to the subject of the representation
without the client's consent. Just as in medical ethics, however, difficult questions do arise in determining when
this prima facie duty ought to be overridden by other, more weighty considerations . Under utilitarian theory, the
answer lies in attempts to make realistic assumptions regarding, first, the extent to which clients would actually be deterred from
confiding in their attorneys and, second, the net balance of benefit over harm, both to present and potential victims. Under
deonotological theory, the answer lies in determining whether the client's right to privacy is forfeited
entirely by an act of unjust aggression or simply overridden by other, more important rights and duties .
While neither approach results in easy solutions to all of the perennial problems of confidentialty and disclosure, the "philosophically
informed" approach can be useful, both in evaluating various provisions of current and proposed ethics codes for lawyers and in
suggesting areas for future exploration by lawyers and philosophers alike.
ATTORNEY-CLIENT PRIVILEGE GROUNDED IN DEONTOLOGICAL AND UTILITARIAN
THEORY
Nancy J. Moore, Law Professor-Rutgers, 1985/1986, "Limits to Attorney-Client Confidentiality: A
'Philosophically Informed' And Comparative Approach to Legal and Medical Ethics," 36 Case. W. Res.
177, p. 246
As in the physician-patient relationship, the principle of confidentiality in the attorney-client relationship is wellgrounded in both utilitarian and deontological moral theory. At least with respect to individual clients, the attorney
is clearly under a prima facie duty not to disclose information relating to the subject of the representation
without the client's consent. Just as in medical ethics, however, difficult questions do arise in determining when
this prima facie duty ought to be overridden by other, more weighty considerations . Under utilitarian theory, the
answer lies in attempts to make realistic assumptions regarding, first, the extent to which clients would actually be deterred from
confiding in their attorneys and, second, the net balance of benefit over harm, both to present and potential victims. Under
deonotological theory, the answer lies in determining whether the client's right to privacy is forfeited
entirely by an act of unjust aggression or simply overridden by other, more important rights and duties .
While neither approach results in easy solutions to all of the perennial problems of confidentialty and disclosure, the "philosophically
informed" approach can be useful, both in evaluating various provisions of current and proposed ethics codes for lawyers and in
suggesting areas for future exploration by lawyers and philosophers alike.
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Attorney-Client Privilege Promotes Respect for Individual
Autonomy
PRIVILEGE IMPORTANT PROTECTION FOR INDIVIDUAL AUTONOMY
Edward J. Imwinkelried, Law Professor-University College Dublin, 2003, "An Essay on Rethinking the
Foundations of Evidentiary Privileges," 83 B.U.L. Rev. 315, p. 328-30
As the last sentence suggests, liberal democratic theory repeatedly refers to the preferences and rights of
"persons," and the theory ultimately rests on a concept of personhood. The theory makes an ontological assumption
about the nature of the beings who populate liberal democracies, because only certain types of beings are capable of self-governance.
The autonomous person is a social being with cognitive and volitional capacity. In making his or her life
preference choices, the person should realize those capacities. Again, as Brandeis observed, "the final end" of the
liberal democratic state is to enable its citizens to develop their capacities and faculties.
To realize his or her cognitive faculty, the person ought to make intelligent life preference choices. The
person is a rational agent. To fully actualize his or her capacity as a rational agent, the person should make informed choices.
Sometimes, as a social being, the person needs to consult other members of society in order to make an
informed choice. The person may need to form a consultative relation with a third party to acquire essential
information or advice. By entering into the relation, the person can achieve a more complete understanding of both the range of
choices and the ramifications of the various choices.
In two situations, the person has an acute need for consultation. First, the
person may have to consult a third party when
the third party possesses expertise the person needs to make an informed life preference choice. A certain
body of knowledge, training, or skill is helpful in making an intelligent choice, and the person realizes that
he or she lacks that expertise. Hence, to decide whether to adopt a particular religious preference, the person may need to
confer with a knowledgeable representative of that religion. Alternatively, to resolve whether to make a certain choice as to a
contemplated medical procedure, the person might have to speak with a physician. Or if the person's life plan comes into
conflict with that of another citizen, the person may need to consult an attorney . As the Supreme Court has
recognized, the person may "require[] the guiding hand of counsel. " In all these cases, consulting an expert
increases the intelligence and genuine autonomy of the person's choice.
The second situation is a case in which the person needs to consult other family members. Persons are capable of self-sacrifice and
choosing altruistic preferences. Especially in the family context, the person may choose the good of another family member as his or
her own preference. Fellow family members are natural objects of the person's love. Even when the person's relationship with his or
her family is a close one, however, it can be difficult for the person to discern the other family member's desires. Another family
member's preferences can be opaque to the person. To learn those preferences, the person may need to engage in intimate conversation
with the fellow family member, just as the person would with an expert.
PRIVILEGE GROUNDED IN PERSONAL AUTONOMY
Edward J. Imwinkelried, Law Professor-U. Cal Davis, 2002, "The Historical Cycle in the Law of
Evidentiary Privileges," 55 Ark. L. Rev. 241, p. 259-60
An alternative, perhaps more promising theory is that privilege doctrine can be grounded in the right to personal
autonomy. In this context, personal autonomy means decisional privacy, or freedom from control (as opposed to
freedom from scrutiny). In a liberal democracy, personal autonomy is-or at least approaches-the status of an ultimate
value. The following is a possible line of argument, linking personal autonomy to evidentiary privileges. The line of argument begins
with a conception of the persons who populate liberal democracies-persons possessed of both cognitive and volitional capacities. In a
liberal democracy, to an important degree these persons are allowed to choose their own life preferences. In the
United States, the courts have conferred special constitutional protection on the independence of life
preference choices related to such matters as religion, family, health, and law. To fully realize their
potential as cognitive beings, persons should be allowed to make intelligent life preference choices in these
matters.
However, in some cases the persons lack the information or expertise to make such choices . In that event, they
must consult either a fellow family member or an expert such as a member of the clergy, a physician, or an attorney. At this point,
though, a dilemma arises. In the process of consultation, the person exposes himself or herself to the risk of coercion or manipulation
by the other party. The person needs to consult because he or she lacks the necessary expertise or the requisite
information about a fellow family member's preferences. Lacking that expertise or information, the person cannot
independently confirm the third party's representations and advice . There is a risk of manipulation precisely because
the person must make an act of faith in the third party consultant. This risk could imperil the independence of the person's life
preference choice and thereby frustrate his or her self-fulfillment as a person with volitional capacity.
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STATE HAS DUTY TO FOSTER CONDITIONS THAT CREATE TRUST IN CONSULTATIVE
RELATIONSHIPS NECESSARY FOR INDIVIDUAL AUTONOMY
Edward J. Imwinkelried, Law Professor-University College Dublin, 2003, "An Essay on Rethinking the
Foundations of Evidentiary Privileges," 83 B.U.L. Rev. 315, p. 333-7
A liberal democratic state should assure its citizens that they may enter into intimate consultative
relationships with minimal risk that their autonomy will be violated during the consultation . To accomplish this,
the state must create conditions conducive of trust. "As a matter of elemental decency," a democratic
society ought to promote conditions allowing the person to trust that the consultation itself will not
compromise his or her autonomy.
Initially, the person must be able to trust that he or she may disclose to the consultant all of the information
that the consultant needs in order to help the person make an intelligent choice . If the person cannot give the
consultant the pertinent facts, the consultant's advice will be "useless, if not misleading ." The person must be able to engage
in limited, protected communication with the consultant. When the person holds information back, the consultant is less
than ideally informed, and the person will not enjoy the full benefit of the consultant's expertise.
Furthermore, the person ought to be able to trust that the consultant will not allow any other person's interests to influence the tenor of
the advice. If the person is to have enough faith in the consultant to rely upon and act decisively on the advice, the person must have
trust in the consultant's integrity. The person has to be in a position to believe that the consultant will not take advantage of the person
for personal aggrandizement. The consultant must act as part of the person's "extended self." Moreover, if the consultant is to serve
faithfully the person's interests, the consultant must be willing to give the person advice that would strike third parties as
unconventional or unpopular.
Society can employ several possible social strategies for promoting a person's trust in his or her consultant.
One is to impose substantive law fiduciary duties on the consultants. Another promising strategy, however, is to establish
conditions of privacy conducive to trust. Privacy is the currency or "moral capital" for creating intimacy and trust. As Justice
William O. Douglas once observed, the "bilateral loyalty" essential to intimacy is virtually inconceivable without a measure of
privacy. Privacy is part of the "necessary atmosphere" for trusting intimacy. The bilateral understanding includes the
person's willingness to surrender his or her privacy by sharing confidential information with the consultant. In response, the consultant
expressly or implicitly promises that in the future, he or she will respect and maintain the confidentiality of the information as against
outsiders.
In this analysis, privacy is not conceived as an end in itself. For that matter, privacy is not even considered a primary right. Instead,
it is deemed a derivative right, arising from the more fundamental right to autonomy. Privacy is viewed as a
condition for promoting autonomy.
Society can and should create private enclaves in which a person and his or her consultant may engage in limited,
protected communication. The individuals communicating within these enclaves must not only have negative
freedom from the molestation of their relationship, but must also feel that they have an affirmative freedom to engage
in the intimate communication that is necessary to the person's making intelligent, independent life
preference choices. Within the enclave, the person should have a sense of freedom to disclose all the
information necessary for the consultant to advise the person. The person ought to be at liberty to reveal the facts
completely - "warts-and-all." To enjoy that freedom, the person must have confidence that his or her revelations
will generally be shielded from third parties outside the enclave . When the person completely informs the consultant,
the person can take full advantage of the consultant's expertise, and the end result should be a more intelligent life preference choice.
Further, in the enclave, the consultant ought to feel free to advise the person without fear of social sanction. If the consultant is to be
faithful to the person, the consultant cannot allow the advice to be distorted by concern for either the consultant's own interests or
those of third parties outside the enclave. Consultation about fundamental life preference choices requires "breathing space." The
consultant should be at liberty to "think aloud" about all the possible options and objects of preference available to the person. The
consultant must be able to broach controversial, divergent, and even dissident possibilities. When a certain option might further the
person's preferences, the consultant should be free to elaborate on that option even when it is at odds with prevailing social sentiment.
If the consultant knew, however, that his or her conversations with a client could be revealed to the public
that knowledge might, at least at a subconscious level, motivate the consultant to change the advice and
thereby manipulate the person's choice. In contrast, when the consultant generally can be assured that the confidences and
advice will be cloaked, the outcome of the consultation should be a more independent life preference choice. In short, evidentiary
privileges can serve as protection of private enclaves for consultative relationships centered on fundamental
life preference choices.
PRIVILEGE PROTECTS AUTONOMY
Ronald Goldfarb, Attorney, 2009, In Confidence: When to Protect Secrecy and When to Require
Disclosure, p. 27-8
Modern scholars--Professor Imwinkelried for one--have suggested that this is an unrealistic premise. A patient who is in severe
pain will communicate with the doctor, however reluctantly, without regard to the question of confidentiality. If
asked, no doubt the patient would prefer a commitment to confidentiality; but under extreme circumstances,
confidentiality would not remain a condition precedent to a patient's seeking help.
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A preferable rationale, in Professor Imwinkelried's and other experts' views, is one based on personal autonomy and
decisional privacy. For citizens to make intelligent, critical choices, they need expert advice from doctors,
lawyers, clergy, and others. To ensure that they get such expert advice, the argument goes, governments (courts,
legislatures) should "promote autonomy in the sense of decisional privacy" by, in Professor Imwinkelried's words,
"creating enclaves for intimate communication."
PERSONAL AUTONOMY JUSTIFICATION FOR PRIVILEGE COMBINES HUMANISTIC AND
INSTRUMENTAL VALUES
Ronald Goldfarb, Attorney, 2009, In Confidence: When to Protect Secrecy and When to Require
Disclosure, p. 28
Charles Alan Wright and Kenneth W. Graham, the authors of a well-known treatise on evidence, have defined the rationale
for privileges not as empirical but as humanistic: "What kind of people are we who empower courts in our names to
compel parents, friends, and lovers to become informants on those who have trusted them?" But such an ethical standard
leaves us with the question, In the search for truth in trials, when should courts intrude on confidential
communications?
Early jurisprudential rationales for confidentiality rules based on humanistic theories (that confidentiality
promotes decency by ensuring privacy) and instrumental theories (that confidentiality is needed to preserve
certain relationships) prevailed at different times. They eventually fused, and ultimately became one rule
that derives from both ideological sources. Some scholars use the broad and subjective term personal
autonomy to rationalize the basis for confidentiality.
EFFECTIVE REPRESENTATION BY COUNSEL CRITICAL TO PERSONAL AUTONOMY
RIGHTS
Martin R. Gardner, Law Professor-University of Nebraska, 2000, "The Sixth Amendment Right to
Counsel and its Underlying Values: Defining the Scope of Privacy Protection," 90 J Crim. L. &
Criminology 397, p. 407-9
In addition to trial fairness and attorney-client privacy concerns, the Court has focused on autonomy interests of the
accused as an underlying value of the Sixth Amendment right to counsel . For example, in Faretta v. California the
Supreme Court held that an accused who "competently and intelligently" decides to forego his right to be represented by counsel is
entitled to conduct his own defense without having a lawyer forced upon him against his will. The Court grounded its
recognition of the right to proceed pro se on the "inestimable worth of free choice" entailed as an inherent
Sixth Amendment value. The Court explained the rationale for its holding as follows:
The right to defend is personal. The defendant, and not his lawyer or the State, will bear the personal consequences of a
conviction. It is the defendant, therefore, who must be free personally to decide whether in his particular case
counsel is to his advantage. And although he may conduct his own defense ultimately to his own detriment, his choice must be
honored out of "that respect for the individual which is the lifeblood of the law."
The Court's acknowledgment that exercise of one's right to defend oneself might redound to his detriment is a clear realization that the
underlying constitutional value identified in Faretta is different from, and perhaps at odds with, the trial fairness value espoused in
Gideon and Massiah.
The Court further elaborated on the autonomy value in McKaskle v. Wiggins which addressed the problem of
reconciling the defendant's right to proceed pro se in situations where standby counsel has been appointed to assist the defendant
without his consent. The McKaskle Court reaffirmed the right to proceed pro se as an affirmation of "the dignity and autonomy of the
accused." Allowing that "occasionally" an accused proceeding pro se might actually present his "best possible defense," the Court
nevertheless acknowledged that in most cases "the right of self-representation is a right that when exercised usually increases the
likelihood of a trial outcome unfavorable to the defendant." Thus, while vindicating the defendant's autonomy, employment of the
right to proceed pro se often compromises the defendant's interest in obtaining a fair trial.
ATTORNEY-CLIENT PRIVILEGE GROUNDED IN RESPECT FOR AUTONOMY
Mary C. Daly, Law Professor-Fordham University, 1996, "Executing the Wrong Person: The
Professional's Ethical Dilemmas", 29 Loy. L.A.L. Rev. 1611, p. 1623-4
The arguments for autonomy and privacy are fairly straightforward. There is a distinguished tradition in western
philosophy enshrining autonomy as a fundamental right of all human beings. This right is critically threatened by
the increasing imbalance in power between the state and the individual or between private enterprises and the individual. Almost all
commercial relationships and many personal ones are subject to regulation by the state, for example, the licensing of businesses and
the licensing of marriages; private enterprises routinely intrude into decisions formerly considered a matter of individual choice, for
example, health care.
These changes lead to the inescapable conclusion that in many important areas of life the substantive and procedural
complexity of the law make the exercise of informed autonomy in decision-making and action virtually
impossible for individuals who lack legal training. Viewed from this perspective, confidentiality becomes an
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indispensable precondition. Autonomy can be preserved only if clients confide freely and without
reservation in their lawyers.
Furthermore, the interactive process of lawyer-client communications frequently requires a client to share
deeply personal information, facts that the client ordinarily considers "private" and jealously guards from
disclosure. Privacy is thus inextricably linked to autonomy and confidentiality. Without an assurance of confidentiality, a
client will not jeopardize the privacy of intimate details. The nondisclosure will hobble the lawyer's advice,
ultimately corrupting the client's autonomy.
Finally, it is sometimes argued that confidentiality promotes virtuous conduct by lawyers, especially loyalty. In entering into a lawyerclient relationship, lawyers assume the persona of the ultimate professional "friend." Friendship is impossible without loyalty - witness
the common pejorative designation, a "fickle friend." Loyalty demands that the lawyer stick through the thick-and-thin
of the attorney-client relationship despite profound reservations about the wisdom or the justice of the client's cause or
strategy. Thus, in the end, the lawyer's virtue - loyalty - is linked to the client's rights - autonomy and privacy.
PRIVILEGES JUSTIFIED BY PERSONAL AUTONOMY
Edward Imwinkelried, Law Professor, U. Cal. Davis, 1998, "The Rivalry Between Truth and Privilege,"
49 Hastings L.J. 969, p. 985-6
Thus, if we are going to construct a deontological case for evidentiary privileges, privileges must be linked
to an ultimate value or primary good other than privacy.
Autonomy is the most obvious candidate. It is conceived as an ultimate value in a liberal democratic system
such as ours. In a pluralist society, the person has a substantial degree of autonomy to determine the content of his or her own life
plan. In a liberal democratic society, the individual citizen is a chooser, and he or she has the right to select
the preferences which define his or her life plan.
The question is whether privacy and privilege can be linked to autonomy. The existence of a link is hardly self-evident; indeed, the
link is arguably counter-intuitive. Autonomy is often viewed as the right to decide and act independently; it seems to assume an
atomistic individual in solitude or isolation. However, relational privacy assumes an individual situated in a
community.
Yet, on closer scrutiny, there is a link. There is a strong argument that in certain contexts in modern society,
privacy is essential to the effective exercise of autonomy. More specifically, privacy promotes autonomy
by facilitating intelligent, independent life preference choices.
As previously stated, autonomy is the right to make choices as to certain preferences. However, the autonomy
in question is not the autonomy of a self-sufficient hermit or recluse isolated from society; again, it is the autonomy of a
social being situated in a society. In some contexts, the individual citizen cannot make an intelligent,
autonomous choice unless he or she is guaranteed the opportunity to consult third parties . If the person's life
plan collides with that of another citizen, the person may need to resort to the litigation system to pursue his or her plan. The litigation
system gives the individual the right to make choices as to the assertion or waiver of substantive and procedural rights. However, the
individual lacks the expertise to fully appreciate the consequences of the choices; thus, as the Supreme Court itself has
remarked, the individual needs "the guiding hand of counsel" to make those choices in a reflective manner.
Likewise, irrespective of the content of the person's life plan, he or she needs to maintain physical and mental health in order to
effectively pursue the plan. Our medical care system affords the individual a wide range of choices, but as in the case of the legal
system, the individual lacks the expertise to understand the full range of choice. Again, the individual has a substantial range of choice
in structuring his or her personal and family life. However, a rational individual will want to know the preferences of the other persons
directly affected by those choices. Before making a decision that could dramatically affect his or her family, any rational spouse would
want to know the relevant aspects of the life plan of the other spouse. In all these settings, a right to consult another person is
a condition for the effective exercise of the citizen's autonomy.
SOCIETY SHOULD ADOPT POLICIES THAT PROMOTE AND PROTECT AUTONOMY
Edward Imwinkelried, Law Professor, U. Cal. Davis, 1998, "The Rivalry Between Truth and Privilege,"
49 Hastings L.J. 969, p. 987
At this point, Joseph Raz' positive theory of freedom is highly pertinent . A liberal democratic society should not only
intervene to protect autonomy when the violation of a person's autonomy is certain or probable. More broadly, society should act
to create conditions conducive to autonomy - in this setting, conditions that conduce to truly autonomous life preference
choice. In particular, society should create conditions which give the person good reason to trust that the
consultant will make a bona fide effort to assist the person to make an intelligent, independent choice .
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Attorney-Client Privilege Critical for Domestic Violence
Victims
ATTORNEY-CLIENT PRIVILEGE IS A MATTER OF LIFE AND DEATH TO DOMESTIC
VIOLENCE VICTIMS
Jeffrey R. Baker, Law Professor - Faulkner University School of Law, 2011, "Necessary Third Parties:
Multidisciplinary Collaboration and Inadequate Professional Privileges in Domestic Violence Practice," 21
Colum. J. Gender & L. 283, p. 327-8
This theory of privilege remains in American law, but a "humanistic" theory also has arisen, based in
concerns of privacy and autonomy. Because the attorney-client relationship bears on the client's life and
decisional autonomy, the client "has a right to make choices with respect under the existing legal regime,
including the justice system. . . . When the person forms a relationship with an attorney to obtain advice about
those choices, that relationship should be left largely 'unmolested . . . by the state' ."
According to the Restatement (Third) of the Law Governing Lawyers, "[t]he rationale for the privilege is that
confidentiality enhances the value of the client-lawyer communications and hence the efficacy of legal
services." This rationale rests on three related assumptions. First, because of the complexity and uncertainty of rights,
obligations and modem legal procedure, clients need lawyers. Second, a client who consults with a lawyer
needs to disclose all of the facts to the lawyer and receive advice reflecting those facts to realize adequate
legal assistance. Third, without the privilege, clients would be reluctant to disclose personal, embarrassing or
unpleasant facts. These assumptions are consistent with and heightened in domestic violence cases.
Confidentiality is more than a matter of strategy or embarrassment for a victim of domestic violence.
Confidentiality is a matter of life, death, and liberation.
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Attorney-Client Privilege Recognized in Many Countries
MANY COUNTRIES PROTECT ATTORNEY-CLIENT PRIVILEGE
Ronald Goldfarb, Attorney, 2009, In Confidence: When to Protect Secrecy and When to Require
Disclosure, p. 31-2
Laws and professional codes that protect privileged communications are not unique to the U nited States.
According to a recent report from the European Union, the practice of protecting confidentiality is common
abroad, especially in the legal profession. Common-law countries (the United States and the United Kingdom
predominantly) have different rules from civil-law countries (European countries), however, and these differences are
reflected in their rules regarding privileged communications.
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Attorney-Client Privilege Serves Multiple Societal Interests
MANY LEGITIMATE SOCIAL ENDS SERVED BY PROTECTING SOME
CONFIDENTIALITIES
Ronald Goldfarb, Attorney, 2009, In Confidence: When to Protect Secrecy and When to Require
Disclosure, p. 29
In her book Secrets, the philosopher Sissela Bok offers four moral rationales for confidentiality. First and foremost, she
proposes, is the need for individual autonomy over personal information . People should be able to have
secrets--for reasons of privacy and self-protection--especially where this does not conflict with the rights of others.
However, that right must be conditional: if a person is infected with a contagious and dangerous disease, it would be morally wrong to
hid that fact from innocent others. Second, Bok states, is the need people have for private relationships and loyalties
with friends and family and organizations. Third, when a promise of silence is made, an obligation may
exist for contractual reasons--in business, for example, parties may are not to publicize trade secrets. The
professional confidentiality of doctors, attorneys, priests, and other professionals is Bok's final category; it is
premised on the value to society in protecting the privacy of these relationships . Since all these refuges of secrecy
can cause problems, regardless of the value of their rationales, Bok judiciously suggests that their invocation should be
considered prima facie, and should be subject to exceptions; for example, a doctor should not disclose a patient's secrets for
gossip, but he might well do so to prevent a suicide.
ATTORNEY-CLIENT PRIVILEGE BROADLY RECOGNIZED
Bankim Thanki, Queens Counsel, 2011, The Law of Privilege, Second Edition, p. 1-2
Every developed legal system provides special protection to communications between lawyers and their
clients. Such protection is generally not available to communications with other classes of professional adviser. In English law
this special protection is known as legal professional privilege , which extends to cover a broader range of
communications and documents generated in the context of litigation. If categorization is sought, legal professional
privilege can perhaps best be described as a species of confidence. For at its root lies the obligation of confidence
which a legal adviser owes his client in relation to confidential communications passing between them or the confidentiality attaching
to documents which 'form part of the brief' in the preparation of a party for the purposes of adversarial litigation. It has been
described by the Supreme Court of the United States as "the oldest f the privileges for confidential
information known to the common law."
PRIVILEGE BENEFITS PUBLIC INTEREST IN CLIENTS GETTING GOOD LEGAL ADVICE
Bankim Thanki, Queens Counsel, 2011, The Law of Privilege, Second Edition, p. 11
The general policy, applicable both to contentious and non-contentious matters, was thus explained by Baroness Hale in Three Rivers
6 in the following terms:
"Legal advice privilege restricts the power of a court to compel the production of what would otherwise be
relevant evidence. It may thus impede the proper administration of justice in the individual case. This makes the
communications covered different from most other types of confidential communication, where the need to encourage candour may be
just as great. But the privilege is too well established in the common law for its existence to be doubted now.
And there is a clear policy justification for singling out communications between lawyers and their clients from other professional
communications. The privilege belongs to the client, but it attaches both to what the client tells his lawyer and to what the
lawyer advises his client to do. It is in the interests of the whole community that lawyers give their clients sound
advice, accurate as to the law and sensible as to their conduct. The client may not always act upon that advice...but
there is always a chance that he will And there is little or no chance of the client taking the right or sensible course
if the lawyer's advice is inaccurate or unsound because the lawyer has been given an incomplete or
inaccurate picture of the client's position."
Planet Debate
Attorney Client Privilege
105
AT: "Attorney-Client Privilege Trumps Other Societal
Interests"
PRIVILEGE IS NARROWLY CONSTRUED AND BALANCED AGAINST OTHER INTERESTS
Nancy J. Moore, Law Professor-Rutgers, 1985/1986, "Limits to Attorney-Client Confidentiality: A
'Philosophically Informed' And Comparative Approach to Legal and Medical Ethics," 36 Case. W. Res.
177, p. 203
None of the above is meant to suggest that there will never be situations in which the client's interest in
confidentiality outweighs the interests of others in avoiding harm, perhaps even serious harm. The only conclusion to
be drawn at this stage is that the historical development of the principle of confidentiality has resulted in a
misguided and undue emphasis on the testimonial privilege, which has in turn led to the mistaken, but
prevalent, assumption that the law itself embodies a broad tradition where confidentiality almost always
takes precedence over other interests.
ATTORNEY-CLIENT PRIVILEGE NOT ABSOLUTE -- CAN BE WEIGHED AGAINST OTHER
SOCIETAL INTERESTS
Nancy J. Moore, Law Professor-Rutgers, 1985/1986, "Limits to Attorney-Client Confidentiality: A
'Philosophically Informed' And Comparative Approach to Legal and Medical Ethics," 36 Case. W. Res.
177, p. 231-2
At the outset, it must be noted that, with the exception of the present disclosure rules, the obligation to honor client
autonomy within the law is not presently accorded the status of an absolute obligation. Although the current
Model Code requires a lawyer to pursue "the lawful objectives of his client through reasonably available means permitted by law,"
exceptions are recognized both for a lawyer who "exercises his professional judgment to waive or fail to
assert a right or position of his client" and for a lawyer who refuses "to aid or participate in conduct that he
believes to be unlawful, even though there is some support for an argument that the conduct is legal ." While
the recognition of these and other exceptions by no means entails disclosure in these circumstances, it does clearly rebut
any argument against such disclosure based solely on an absolute duty to honor client autonomy within the
bounds of the law. The question remains whether there are other considerations, more directly related to the prima facie obligation
of confidentiality, that would support a refusal to permit disclosures, even to prevent death or substantial bodily harm, so long as the
client intends a clearly, or even arguably, lawful act.
Planet Debate
Attorney Client Privilege
106
AT: "Privilege Decreases Legitimacy/Public Respect for
Courts"
PRIVILEGE INCREASES THE LEGITIMACY OF THE JUSTICE SYSTEM
Harvard Law Review, 1985, "Privileged Communication: I. Introduction: The Development of
Evidentiary Privileges in American Law," 98 Harv. L. Rev. 1450, p. 1498-9
Rather than being seen as a means of encouraging communications, protecting privacy, or accommodating power, existing
privilege law may also be understood as a means of preserving the image and legitimacy of the legal system.
According to the image theory, courts and legislatures have established the set of existing privileges because they minimize
possible embarrassment to the legal system. The distribution of privileges minimizes this embarrassment in two ways:
(1) it masks the system's possible incapacity to compel obedience, and (2) it minimizes the possibility of
discovering facts after trial that would undermine the credibility of the judgments reached.
First, privilege holders seem to constitute those groups most likely to respond to a court order by lying or
by refusing to testify. They are bound by strong loyalties or oaths of confidentiality, often supported by
professional codes of ethics and the threat of professional sanctions. A court confronted with either perjury or a
refusal to testify would have two embarrassing options: it could either ignore the witness's public disobedience, or throw the priest,
spouse, lawyer, or doctor in jail. Ignoring disobedience would reduce respect for judicial commands; jailing
witnesses would probably generate public sympathy for the resolute witness and hostility toward the court .
Second, relative to others seeking privileges, those now holding privileges are arguably less likely to disclose, after
the verdict, information that they were privileged from disclosing in court . Although this argument does not
affirmatively justify the creation of a privilege, it does justify the distinction made between those now privileged and those not
privileged. Because the legitimacy of the legal system depends on the acceptability of its verdicts as credible
determinations of what happened, someone who invoked a privilege and later revealed information that
proved the verdict wrong could seriously undermine the system's legitimacy. Current privilege holders,
through such means as ethical codes, institutional procedures, or deeply held loyalties, provide some assurance that these
embarrassing revelations are unlikely to occur. Nonprivileged groups on the whole are probably less able to restrain their
members from making such revelations, and thus privileging one of these groups may carry a greater risk of delegitimating the legal
system.
ELIMINATING PRIVILEGE UNDERMINES COURT LEGITIMACY
Harvard Law Review, 1985, "Privileged Communication: I. Introduction: The Development of
Evidentiary Privileges in American Law," 98 Harv. L. Rev. 1450, p. 1500
Courts, then, even if acting as Machiavellian power-maximizers, would be unlikely to try to eradicate privilege law. Rather, they
would weigh legitimating and delegitimating forces and seek that array of privileges that maximizes the overall legitimacy of the
court. Although eliminating all privileges might maximize judicial power over witnesses, it would probably
lower the overall legitimacy, and therefore the power, of the courts. The interpretation of statutory
privileges by courts will thus represent not only the equilibration of legitimating and delegitimating forces, but also the
struggle for power between judicial and private forces.
Planet Debate
Attorney Client Privilege
107
AT: "Wrong to Separate What is Legal from What is Moral"
KANTIAN PHILOSOPHY JUSTIFIES DIVISION BETWEEN WHAT IS LEGAL AND WHAT IS
MORAL
Thane Rosenbaum, Law Professor Fordham University & Novelist, 2004, The Myth of Moral Justice:
Why Our Legal System Fails to Do What's Right, p. 258-9
The underlying thinking that supports such gross passivity and indifference in the law can be traced ,
unintentionally, to the philosophy of Immanuel Kant. Indeed, the influence of Kant can help explain a good deal of
what passes for immoral justice in America. For Kant, the moral and legal are naturally and inexorably
separate. He would be pleased and it would have come to him as no surprise that the American legal system focuses on one and
ignores the other. From a Kantian perspective, moral duties do not possess a legal counterpart . We should simply
resign ourselves to the fact that people who do the right moral thing are simply better than the rest of us. They have more virtue, and
therefore conduct themselves more virtuously. Their motivation comes from within; it is part of their spiritual and personal makeup
that makes them act in the way that they do.
According to Kant, the law has no application in the spiritual sphere of human existence. The law is about
regulating external conduct, looking at what people have actually done, and judging the lawfulness of those
actions. The law, however, should not be involved in forcing people to do what they otherwise would not do on their own. The
law simply can't compel citizens to be virtuous. We are all better off when virtue exists in the general population, and we
are worse off when it is absent. Yet in Kant's view, you can reward people for being better human beings, and you
can subject those who are not to moral censure, but you can't legally require them to act against their nature .
Planet Debate
Attorney Client Privilege
108
AT: "Attorney Client Privilege Protects the Powerful"
JUST BECAUSE PRIVILEGE LAW AND POWER MAY INTERSECT DOES NOT MEAN IT
SHOULD BE REJECTED
Harvard Law Review, 1985, "Privileged Communication: I. Introduction: The Development of
Evidentiary Privileges in American Law," 98 Harv. L. Rev. 1450, p. 1496-7
Both views of the power theory should be rejected because they proceed on an essentially misguided notion of the nature of empirical
and normative choice. Legal and political decisions are usually informed by a social vision that incorporates
particular assumptions about human behavior and values. The fact that the social vision, not the privilege
law justification, supplies these underlying assumptions does not show that such rationales are incoherent .
Rather, the coherence of privilege law justifications lies in their ability to isolate those empirical and
normative assumptions relevant to decisionmaking. Nor does the fact that political power influences the
assumptions made show that such rationales are applied illegitimately. Indeed, the legitimacy of these
decisions requires that the assumptions be politically influenced.
This analysis thus draws a quite different implication from the power theory: it recommends that privilege theory
concentrate not on "objectively" determining which behavioral and normative assumptions to adopt , nor on
excluding political input, but on providing a forum that best facilitates the form of political input that society
deems most legitimate. Deciding which form of political input is most legitimate clearly requires making a
normative choice. Nevertheless, most members of our society probably share the belief that responsiveness to the needs and input
of many people, particularly those people who will be affected by any particular decisions, is the most legitimating feature
decisionmaking can have.
Assuming that this view of legitimacy is shared by society, what can be said about the legitimacy of our system of making privilege
law? Almost all of the newer privileges have been created by statute. Courts, while generally professing an institutional incompetence
to create any privileges on their own, have construed statutory privileges narrowly. The power theory argues that both legislative and
judicial decisions on privilege law are influenced by powerful minorities seeking to advance their self-interest. The question
remains, however, whether the imperfect political input of powerful minorities is per se delegitimating or
whether it could ever actually legitimate privilege law.
If decisions about privilege law were made with explicit reference of the political power of the groups
involved, the decisions would necessarily be delegitimated. But as long as privilege laws are justified, albeit
on the basis of unverifiable assumptions about behavior and value, the contours of privilege law will be
shaped by the predominant social vision. Naturally, the more powerful a group is, the more likely it is that its vision of
behavior and value will predominate. But competing visions of behavioral patterns and social values will always
exist. The acceptability of any particular vision to other groups will determine both whether that vision predominates and,
concomitantly, the power of the group promoting that vision. Because, as a practical matter, the maintenance of power requires the
powerful to gain the acquiescence of the less powerful, a compromise equilibrium will be reached that advances the
interests of the powerful while accommodating the interests of the less powerful . In this regard, the nature of
privilege law is no different from the nature of most law in a democratic society.
PRIVILEGE PROTECTS CLIENTS NOT LAWYERS
Bankim Thanki, Queens Counsel, 2011, The Law of Privilege, Second Edition, p. 17-8
The privilege belongs to the client and not to his lawyer or agent. Only the client can invoke the privilege. It is not open
to a lawyer or other agent to do so, unless acting on behalf of the client, and the lawyer or agent cannot invoke the privilege if the
client has waived it. Privileged information or documents cannot therefore be disclosed without the client's consent.
The right to waive the privilege is also that of the client and not the lawyer or agent, but the client's legal advisers
are deemed to act with the client's authority in the conduct of litigation and their acts or omissions may therefore have the effect of
waiving privilege on the client's behalf even where such waiver is inadvertent and contrary to the client's interests.
Planet Debate
Attorney Client Privilege
109
AT: "Attorneys are Agents of the Court"
LAWYER'S ROLE AS AN AGENT OF THE COURT DOES NOT MEAN THEY ARE AGENTS
OF THE STATE
Ronald Goldfarb, Attorney, 2009, In Confidence: When to Protect Secrecy and When to Require
Disclosure, p. 64
A moral complexity has been noted by the philosophy professor Bruce Landesman: Does a requirement that lawyers
disclose certain categories of client communications make them "agents of the state": Of course, lawyers are
agents of the courts, but that is different from being forced to be agents of the police or prosecution against
their clients.
Planet Debate
Attorney Client Privilege
110
Should Not Exempt Exonerating Evidence From AttorneyClient Privilege
DUTY TO RESCUE UNDERMINES LIBERTY
Thane Rosenbaum, Law Professor Fordham University & Novelist, 2004, The Myth of Moral Justice:
Why Our Legal System Fails to Do What's Right, p. 259
A moral legal system would make no distinctions between moral and legal duties . But freedom from legally
mandated moral obligation is one of the many liberties that Americans possess. In some ways it is the guiding
ethos of what it means to be an American: our national obsession with freedom and autonomy . These AllAmerican principles make imposing a duty to rescue nearly impossible within our legal system. Requiring such a duty
would impinge severely on one's overall liberty. It would force one to act, even minimally, in a situation where he may
not wish to.
Planet Debate
Attorney Client Privilege
111
Should Not Conform Attorney-Client to Same Standards as
Dr./Patient Confidentiality
RATIONALE FOR DR/PATIENT AND ATTORNEY-CLIENT PRIVILEGES DISTINCT
Thane Rosenbaum, Law Professor Fordham University & Novelist, 2004, The Myth of Moral Justice:
Why Our Legal System Fails to Do What's Right, p. 126
Practicing attorneys maintain that the legal and medical professions are not similar in this regard, and that's why
the privilege rules operate differently. After all, patients don't visit doctors because they are suffering from a
secret (although they may wish to keep their illness a secret), nor do they seek out doctors on the basis of how well the
doctor can keep a secret. But a person who needs a lawyers will not visit one who cannot be trusted to
maintain a confidence.
Planet Debate
Attorney Client Privilege
112
Privilege Narrowly Constructed: Carefully Balanced
PRIVILEGE NOT ABSOLUTE -- IS BEING WEIGHED
Bankim Thanki, Queens Counsel, 2011, The Law of Privilege, Second Edition, p. vii
To this general rule there is one absolute, or all but absolute, exception: materials bearing on legal advice sought or given,
and materials which come into existence for the purpose of litigation, are privileged from disclosure. This
exception to the general rule was well understood and settled years ago.
Or was it? The exceptional nature of this privilege, and the suspicion of litigating parties that the material for which their
opponents claim privilege contains an armory of smoking guns, have one demonstrable result: that the nature, contents,
and bounds of the privilege are constantly tested, challenged, and explored . In recent past, judges at first instance,
in the Court of Appeal, in the House of Lords, and in the Privy Council have all been required to rule on various features of the
privilege. It is not a straightforward subject.
Planet Debate
Attorney Client Privilege
113
Privilege Narrowly Constructed: Prevent Death or Bodily
Harm
ATTORNEYS CAN BREAK PRIVILEGE TO PREVENT DEATH OR BODILY HARM
Thane Rosenbaum, Law Professor Fordham University & Novelist, 2004, The Myth of Moral Justice:
Why Our Legal System Fails to Do What's Right, p. 123
The American Bar Association's rules regarding the keeping of client confidences -- as embodied in its Model Code of
Conduct--mandates that in all cases the privilege should be maintained , but allows for disclosure "only to
prevent a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily
harm." Under this rigidly narrow standard, very few confidences would have fallen outside the privilege. In 2001, the ABA
relaxed the privilege slightly by allowing lawyers to breach client confidentiality "to prevent reasonably
certain death or substantial bodily harm."
Planet Debate
Attorney Client Privilege
114
Privilege Narrowly Constructed: Crime-Fraud Exception
CRIME-FRAUD EXCEPTION LIMITS ATTORNEY-CLIENT PRIVILEGE
Jeffrey R. Baker, Law Professor - Faulkner University School of Law, 2011, "Necessary Third Parties:
Multidisciplinary Collaboration and Inadequate Professional Privileges in Domestic Violence Practice," 21
Colum. J. Gender & L. 283, p. 334-6
Presently, the attorney-client privilege is codified in state codes of professional conduct and in rules of
evidence. While confidentiality is the professional duty to keep a client's communications secret, privilege is
the right to keep that confidence in court--specifically, the privilege to refuse to testify regarding the confidential
communication despite compulsory discovery and evidentiary rules. Attorney-client privilege in the federal context
extends from Rule 501 of the Federal Rules of Evidence, which refers to the privilege as it exists and
evolves in the common law as well as based in part on the "reason and experience" of the courts. However, in United States v.
Zolin, an early Supreme Court case construing the attorney-client privilege under Rule 501, the Court recognized that the
privilege has limits:
The attorney-client privilege is not without its costs. "[S]ince the privilege has the effect of withholding
relevant information from the factfinder, it applies only where necessary to achieve its purpose ." The
attorney-client privilege must necessarily protect the confidences of wrongdoers, but the reason for that
protection-- the centrality of open client and attorney communication to the proper functioning of our
adversary system of justice--"ceas[es] to operate at a certain point, namely, where the desired advice refers
not to prior wrongdoing, but to future wrongdoing." It is the purpose of the crime-fraud exception to the attorney-client
privilege 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 crime.
CRIME-FRAUD EXCEPTION IS A REASONABLE BALANCE OF COMPETING INTERESTS
Ronald Goldfarb, Attorney, 2009, In Confidence: When to Protect Secrecy and When to Require
Disclosure, p. 63-4
Supporters of the attorney-client privilege argue that there is no social cost to the privilege, because without it
the client would not have provided the incriminating evidence in the first place. Morally, it would be as wrong
for attorneys to be made into informers as it would be to force them to become "a cloak for criminal
conspiracy," one commentator argued. Drawing a distinction between advice about prior wrongdoings
(privileged) and future wrongdoing (not privileged) strikes a reasonable balance .
PRIVILEGE DOES NOT PROTECT KNOWLEDGE OF FRAUD OR CRIME
Bankim Thanki, Queens Counsel, 2011, The Law of Privilege, Second Edition, p. 198
The reason for the exception is perhaps obvious: it is not in the interests of justice to protect communications made in
furtherance of a criminal or fraudulent purpose. In Williams v Quebrada Railway, Land and Copper Company. Kekewich
J explained the exception as follows:
"It is of the highest importance, in the first place, that the rule as to privilege of protection from a production to an opponent of those
communications which pass between a litigant, or an expectant or possible litigant, and his solicitor should not be in any way departed
from. However hardly the rule may operate in some cases, long experience has shewn that it is essential to the
due administration of justice that the privilege should be upheld . On the other hand, where there is anything of
an underhand nature or approaching to fraud, especially in commercial matters, where there should be the veriest good faith, the
whole transaction should be ripped up and disclosed in all its nakedness to the light of the Court.
In focusing upon the rationale for the rule, one can see why it has been said that the crime/fraud exception is not so much
an exception to legal professional privilege, as a mark at the outer bounds of the definition of privilege . It
has been suggested that it is not that the privilege that would otherwise arise to protect the communications is ousted, but rather that
the communications never become privileged at all in such circumstances. However, it is suggested that the correct
analysis is that the rule does operate as a procedural exception to legal professional privilege. This is because it
would not be correct to say that the communications were never privileged if the allegation of crime or fraud turns out to be
unfounded (although the privilege may have been frustrated if the exception is invoked in such circumstances.)
Planet Debate
Attorney Client Privilege
115
Privilege Narrowly Constructed: Ethical Duty to Disclose
Perjury
ATTORNEYS HAVE AFFIRMATIVE DUTY TO PREVENT/REPORT PERJURED TESTIMONY
Thane Rosenbaum, Law Professor Fordham University & Novelist, 2004, The Myth of Moral Justice:
Why Our Legal System Fails to Do What's Right, p. 104-5
In addition to criminal penalties, there are professional ethical requirements that prohibit perjury as well. Based on the model Code of
Professional Responsibility and the Model Rules of Professional Conduct, state bar associations impose rules on lawyers
not to present testimony or evidence in court that the attorney either knows to be false, or reasonably
believes to be false. The ethical duty extends even further by requiring attorneys to disclose when a client
is about to commit perjury. If attorneys fail in their affirmative ethical duties to keep perjury out of the
courtroom, they can be subject to criminal prosecution, and even disbarment from the practice of law.
Planet Debate
Attorney Client Privilege
116
Privilege Narrowly Constructed: Confined to Actual Attorneys
PRIVILEGE NARROWLY CONFINED TO ACTUAL ATTORNEYS
Ronald Goldfarb, Attorney, 2009, In Confidence: When to Protect Secrecy and When to Require
Disclosure, p. 67
Whether the attorney-client relationship exists, and thus whether the attorney-client privilege applies, is scrutinized
conservatively by courts. In order for the attorney-client privilege to apply, a professional legal adviser
must provide legal advice. When, for example, union officials for the Patrolmen's Benevolent Association of New York City
sought to claim the privilege with respect to the advice it provided to union members regarding a federal criminal investigation, the
court ruled that no privilege attached to protect those communications; being akin to a legal adviser is not sufficient.
Planet Debate
Attorney Client Privilege
117
Terrorism Answers: Public Interest in Preventing Terrorism
Trumps Attorney-Client Privilege
TERRORISM THREATS CAN TRUMP ATTORNEY-CLIENT PRIVILEGE
Ronald Goldfarb, Attorney, 2009, In Confidence: When to Protect Secrecy and When to Require
Disclosure, p. 83
Post-September 11 civil-liberties curtailments by the federal government have impinged on the historical
attorney-client privilege. The Patriot Act permits government eavesdropping (monitoring) on conversations between
imprisoned defendants, detainees, and their lawyers. Intercepted communications are reviewed by a "privilege" team
to determine if terrorism is imminent. The team is not neutral; nor is it accountable for its decisions .
Traditional safeguards of the justice system were deemed contrary to the public interest in this time of
emergency, Attorney General John Ashcroft announced.
Planet Debate
Attorney Client Privilege
118
Case-By-Case Assessments Undermine Benefits from Privilege
CASE-BY-CASE BALANCING GUTS NECESSARY CERTAINTY OF PRIVILEGE
David A. Nelson, Law Student - Northwestern, 1992, "Attorney-Client Privilege and Procedural
Safeguards: Are They Worth the Costs?", 86 Nw. U. L. Rev 368, p. 394
The attorney-client privilege plays a vital role in our justice system. In order to play its role, the protection
of the privilege must be clearly defined and the full scope of that protection must apply in all cases. If the
existence of the privilege depends upon balancing the interests in every individual case, then no client can
rely upon that protection. Consequently, the free and open communication that the privilege is supposed to
foster will not result. Adherence to the reasoning of the Federal Circuit in these cases would result in a complete abrogation of
the attorney-client privilege.
Planet Debate
Attorney Client Privilege
119
Exceptions to Attorney-Client Privilege Snowball
EXCEPTIONS TO ATTORNEY-CLIENT PRIVILEGE SNOWBALL -- SUBJECT TO ABUSE
Auburn K. Daily & S. Britta Thornquist, Law Students-Georgetown University, 2003, "Has the
Exception Outgrown the Privilege?", 16 Geo. J. Legal Ethics 583, p. 590-1
In theory, the crime-fraud exception acts as a protective mechanism to prevent the existence of the attorney-client privilege from
acting as a shield precluding disclosure of an ongoing or future crime or fraud. In fact, there are many advocates who favor
further broadening of the exception. Nevertheless, inherent in a mechanism which allows a way to circumvent
the attorney-client privilege, a privilege which protects information that opposing parties would
undoubtedly find very useful, is the potential for abuse of that mechanism for purposes outside its original
intent. The broadening of the exception that has occurred with Zolin, and in state courts across the country, is a further
invitation to such abuse, and has caused one critic to suggest that the attorney-client privilege "does not
become viable until the exception is disproved."
Planet Debate
Attorney Client Privilege
120
Exceptions to Attorney-Client Privilege Undermine
Effectiveness
CERTAINTY CRITICAL TO EFFECTIVE PRIVILEGE
Bankim Thanki, Queens Counsel, 2011, The Law of Privilege, Second Edition, p. 11-2
The need for candour requires a high degree of certainty on the part of those involved in the relevant
lawyer-client dialogue. As the US Supreme Court has put it, an uncertain privilege is little better than no privilege
at all. Confidence in non-disclosure is essential if the privilege is to achieve its raison d'etre. A lawyer must be
able to give his client an absolute and unqualified assurance that whatever the client tells him in confidence will never be disclosed
without his consent Actual or apprehended litigation is emphatically not the touchstone of the underlying rationale in this context. As
Lord Simon said in D v NSPCC:
"...the adversary system, involving professional assistance, could hardly begin to work effectively unless the
client could be sure that his confidences would be respected. And a legal representative with only partial knowledge of
his case would be like a champion going into battle unconscious of a gap in his armour. But it is only the rare case which has to be
fought out in court. Many potential disputes, civil especially, are obviated or settled on advice in the light of the likely outcome if
they had to be fought out in court. This is very much in the interest of society, since a lawsuit, though a preferable way of settling a
dispute to actual or threatened violence, is wasteful of human and material resources. Thus similar considerations apply whenever a
citizen seeks professional guidance from a legal adviser--whether with a view to undertaking or avoiding litigation, whether in
arranging his affairs in or out of court."
Planet Debate
Attorney Client Privilege
121
Dr./Patient Confidentiality Spillover: Link - Rationale the
Same
CAN'T DISTINGUISH ARGUMENTS IN FAVOR OF PATIENT CONFIDENTIALITY FROM A
CLIENTS
Nancy J. Moore, Law Professor-Rutgers, 1985/1986, "Limits to Attorney-Client Confidentiality: A
'Philosophically Informed' And Comparative Approach to Legal and Medical Ethics," 36 Case. W. Res.
177, p. 197-8
There is no apparent reason to distinguish lawyers from doctors at the first stage of analysis -- the initial
justification for the obligation of confidentiality. Using either a utilitarian or a deontological approach, it
should be obvious that lawyers have, as do physicians, at least a prima facie obligation to maintain client
confidentiality. Without such an obligation, clients might be deterred from the full disclosure necessary for
effective legal representation. Moreover, the subject matter of lawyer-client communications (and other
information) is just as private as those involved in the physician-patient relationship. Because the very nature of a
prima facie obligation is that it is not absolute, but may give way in light of other substantial interests, the recognition of such an
obligation in the lawyer-client relationship should be uncontroversial.
Planet Debate
Attorney Client Privilege
122
CP - Federalize Privilege: Solves Uncertainty
CONGRESS SHOULD ACT TO CREATE FEDERAL ATTORNEY-CLIENT PRIVILEGE
STANDARD-- WILL SOLVE PROBLEMS OF UNCERTAINTY
Thomas P. Glynn, Law Professor, Seton Hall, 2002, "Federalizing Privilege", 52 Am. U.L. Rev. 59, p.
63-4
The time has come for a more radical solution. A quarter century after the last serious congressional consideration of, and
ultimate inaction on, the attorney-client privilege, this area of the law is now in serious need of renewed congressional
attention. Yet enhancing certainty demands more than changes in choice-of-law principles or the
codification of a set of privilege rules for the federal courts. Rather, to resolve both lingering conflicts between
jurisdictions and confusion within jurisdictions, we need a single, codified solution. Congress, therefore, should
federalize the law of privilege preemptively, creating uniform protection for client confidences that will
apply in every proceeding in federal and state court, as well as in arbitration proceedings, administrative hearings, and
legislative proceedings. Federal privilege legislation providing clear, unqualified, and generally applicable
privilege protections will produce a level of certainty sufficient to reap the potential benefits of the
privilege while ultimately lowering its transaction costs. Congress has both the capacity and the
constitutional power to enact this needed reform
CONGRESS SHOULD FEDERALIZE PRIVILEGE
Thomas P. Glynn, Law Professor, Seton Hall, 2002, "Federalizing Privilege", 52 Am. U.L. Rev. 59, p.
132-4
The only way to achieve reasonable certainty in privilege law is to enact federal legislation providing clear,
national protections for attorney-client communications that will apply regardless of the fortuity of the
forum - state, federal, or nonjudicial - in which the privilege is asserted. Only a codified, preemptive, and
unqualified federal privilege can resolve current privilege woes.
Perhaps contrary to prevailing thought, Congress is the most appropriate policy-making body to address the
existing problems with privilege doctrine. First, the common-law method has failed to develop predictable
privilege protections. Second, under the Rules Enabling Act, only Congress can codify federal privilege protections;
hence, even the more limited proposed reforms - such as codifying a set of privilege rules for federal courts - would require
congressional action. Although enacting sufficiently detailed legislation would require Congress to resolve a number of difficult,
lingering issues, these issues deserve vigorous debate and resolution. Congress is now well-equipped for such policy
making: it has far more commentary, history, and experience to draw upon than it did a quarter century ago, as well as established
vehicles for receiving judicial, scholarly, and other input.
Moreover, although privilege protections often are mischaracterized as procedural or evidentiary "rules," they
embody substantive protections or rights promoting extra-judicial interests. Thus, Congress - which already has
recognized the substantive nature of privilege protections - has the power under the Commerce Clause to enact
legislation guaranteeing these protections in all courts and nonjudicial fora, and this exercise of power does
not offend the Tenth Amendment.