10.02. Attorney-Client Privilege

The attorney-client privilege is recognized to encourage clients to fully disclose embarrassing or harmful information to their lawyer. The lawyer, fully informed, can then provide advice on how to proceed. If a client couldn’t trust their lawyer to keep the lawyer’s mouth shut, a client might very well omit facts or outright lie. Even more extreme, if a client could not count on the silence of a lawyer then they might not go to a lawyer at all – causing claims to go unprosecuted or defended.[1]

When thinking about the privilege it is important to keep in mind the consequence of keeping these communications a secret. It means that some conversations/facts are denied to courts and others who might have a very strong interest in knowing them. In this way, the attorney-client privilege runs counter to the belief that all relevant facts should be set out in court so the judge or jury can come to a just and correct outcome. Consider this hypothetical: a client confesses to his lawyer in confidence that he committed a crime. The problem is that another man has been charged, convicted, and sentenced to life for the crime. The client tells the lawyer that he must not reveal the fact that he committed the crime until after the client’s death. Certainly, the court, the victim’s family, the wrongfully-convicted man and his family have an interest in knowing the true state of affairs. But can the lawyer reveal what the client said?[2] No. Why not? Because the communications are protected by the attorney client privilege.[3] So, recognizing the attorney client privilege can have significant costs, but society believes that encouraging clients to speak frankly with lawyers outweighs these other interests. You do not have to agree with the balance – there are a number of very smart people who question whether this blanket recognition of the privilege is the best approach.

     I do not want to dwell on this too much at this point, but it is worth a word here about how the attorney client privilege is unique – different from the other confidentiality doctrines. I have already mentioned that the privilege is a rule of evidence that prohibits forced disclosure by a court. I also want you to keep in mind the scope of the information protected compared to the ethical duty of confidentiality and the procedural rule protecting the attorney’s work product. Think about this as we study the scope of coverage and which doctrine protects the most information.  I think the Purcell case in the Readings provides a very nice introduction to the difference between the doctrines of confidentiality.

[1] Restatement (Third) of the Law Governing Lawyers § 68, cmt. c.

[2] This is a real case that is commonly known as the Buried Bodies Case.  Radiolab did a podcast on this case that you can listen to (or read about) at:  https://www.wnycstudios.org/story/the_buried_bodies_case.

[3] You will learn when we talk about Rule 1.6 – the ethical rule prohibiting a lawyer from disclosing client confidences – that there is an exception to the duty of confidentiality when a court orders disclosure (Rule 1.6(b)(6)).