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Resolved: In the United States criminal justice system, truth-seeking ought to take precedence over attorney-client privilege

October 16, 2013
Published in Issues

Resolved: In the United States criminal justice system, truth-seeking ought to take precedence over attorney-client privilege.

Planet Debate release

acp

Introduction

The November-December Lincoln-Douglas resolution asks the question of whether or not truth-seeking out to take precedence over attorney-client privilege. In this brief essay, I will review the key terms and discuss they main arguments on each side.  Substantially more evidence (hundreds of cards) and more detailed arguments are available in the Planet Debate evidence release.

Terms

Attorney-client privilege. They key term in the resolution is “attorney-client” privilege.  It refers to communications between an attorney (a lawyer) and his or her client when those communications are focused on obtaining legal advice, communication for that purpose that is made in confidence by that client and are, at the client’s insistence, permanently protected from disclosure unless that investment is waived.

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).

According to Wikipedia, it is one of the oldest recognized privileges for confidential communications and the site explains in more detail:

Though there are minor variations, the elements necessary to establish the existence of the attorney client privilege are:

  1. The asserted holder of the privilege is (or sought to become) a client; and
  2. The person to whom the communication was made:
    1. is a member of the bar of a court, or his subordinate, and
    2. in connection with this communication, is acting as an attorney; and
  3. The communication was for the purpose of securing legal advice.[3]

There are a number of exceptions to the privilege in most jurisdictions, chief among them:

  1. the communication was made in the presence of individuals who were neither attorney nor client, or disclosed to such individuals,

  2. the communication was made for the purpose of committing a crime or tort,

  3. the client has waived the privilege, for example by publicly disclosing the communication.

A corollary to the attorney–client privilege is the joint defense privilege, which is also called the common interest rule.The common interest rule “serves to protect the confidentiality of communications passing from one party to another party where a joint defense or strategy has been decided upon and undertaken by the parties and their respective counsel.”[

An attorney speaking publicly in regard to a client’s personal business and private affairs can be reprimanded by the bar and/or disbarred, regardless of the fact that he or she may be no longer representing the client. Airing of a client’s or past client’s dirty laundry is viewed as a breach of fiduciary responsibilities.

Vs. “confidentiality.” One very important to understand in the context of attorney-client privilege is that attorney-client privilege is a PART of attorney-client confidentiality.  Confidentiality refers to the idea that all communications between an attorney and client should be kept confidential. This expectation is governed by rules of professional responsibility and ethics. Privilege refers to the idea that certain communications cannot be offered in evidence at trial or other judicial proceedings.

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.

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.

Wikipedia explains the difference between these two systems.

Criminal justice.  The resolution is limited to a discussion of the attorney-client privilege in the context of criminal law, as opposed to civil law. Wikipedia, again, explains the difference between these two systems. Criminal justice is the system of practices and institutions of governments directed at upholding social control, deterring and mitigating crime, or sanctioning those who violate laws with criminal penalties and rehabilitation efforts. Those accused of crime have protections against abuse of investigatory and prosecution powers.

In England and Wales, civil law means non-criminal law.[1] The law relating to civil wrongs and quasi-contracts is part of the civil law.[2] Civil law can, like criminal law, be divided into substantive law and procedural law.[3] Civil law is the branch of law dealing with disputes between individuals or organizations, in which compensation may be awarded to the victim. For instance, if a car crash victim claims damages against the driver for loss or injury sustained in an accident, this will be a civil law case.[4] Civil law differs from criminal law, which emphasises more upon punishment than on dispute resolution.[citation needed

In the United States.  Resolutions do not always limit thee subject matter up for discussion to “in the United States.”  This resolution does, and I think it is important to highlight here because the norms and laws of different justice systems vary. It is important that both sides’ arguments are specific to  the US criminal justice system (or, more importantly, do not give examples from the criminal justice systems of other countries).

Affirmative

The primary argument in favor of abandoning the attorney-client privilege is that it undermines truth-seeking in the criminal justice system.

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.

The privilege even excludes evidence that is related to, but not necessarily a part of what is covered in by the privilege

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 attorney-client 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.

And truth seeking has always had a very high priority in the criminal 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. 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.

In fact, it seems to be the central purposes of the judicial 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.

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.”

And without it, the moral foundation of the law collapses.

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.

Public faith in the legal system will also collapse unless it remains committed to 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. 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?

Some proponents of the privilege argue that abandoning the privilege will discourage people from seeking legal advice, but this is not empirically proven.

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

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.

And even if it is true that abandoning the privilege will discourage some from seeking legal advice, only those who are guilty would be discouraged from doing so. The innocent have nothing to hide.

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.

A related argument of privilege advocates is that the privilege is important for attorneys to provide effective representation, but there is no actual evidence to support this claim.  It’s just asserted.

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.

And given how inconsistently the privilege is applied to protect evidence, it is just not that critical to providing effective representation.

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.

The failure of the privilege to facilitate attorney client communications undermines the entire utilitarian rational for the privilege

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.

And since the privilege prevents attorneys from disclosing information, it potentially violates free speech.

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.

Negative

The primary argument in favor of retaining the privilege is that it facilitates effective representation, which is important to justice.

The purpose of the attorney-client privilege is to enable clients to make “full and frank” disclosures to their attorneys so that those attorneys can provide effective advice and candid representation.   Without the privilege, people would not be able to use attorneys effectively because they would be deterred from sharing critical information with their attorneys out of fear that it could be used against them in trial.

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.” 

And without effective representation, it would be difficult to achieve 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.

This is particularly true in an adversarial justice system that the US has.

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.

Beyond the benefits of effective representation to the individual client, there are society-wide benefits, namely more fair “transactions” in the criminal justice system that benefit society on the whole.

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.

And this fairness in “transactions” increases respect for the rule of law.

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.

These society-wide, utilitarian social benefits outweigh any harm to truth seeking

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.

As discussed above, the primary argument in favor of eliminating the privilege is that it undermines truth-seeking. There are two answers to the “truth-seeking good” argument that has been discussed above.

First, Negative debaters can question the value of truth-seeking.

While some argue that the privilege excludes evidence that is important for truth-seeking, it is important to note that this evidence would not exist in the first place without the privilege. It’s not as if the privilege is covering up evidence that would otherwise be known.

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.

Some argue that the purpose of the justice system is not to seek truth  but simply to determine a winner. Given that some clients have more resources than others and that  some attorney are smarter than others,  it doesn’t seem that we prioritize 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. 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 victoriousSometimes 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 adversarySometimes 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.

Certainly, it’s not 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. 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 missionCourts 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.

Second, Negative debaters can argue that other values, such as human dignity, which is protected by the attorney-client privilege, are more important than 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. 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.” 

The protection of constitutional rights facilitated by the protection of the attorney-client privilege can also trump truth-seeking.

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 

Third, Negative debaters can argue that the attorney client privilege does not undermine truth truth-seeking.   This is arguably true for  a number of reasons.

One, the evidence would not otherwise exist without the privilege.  This is the case because clients would not share the potential “evidence” with attorneys if it was not protected by the privilege in the first place.

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.

Two, it’s a qualified, non-absolute privilege.  It is not a broad privilege that covers a lot of evidence.

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.

Three, the privilege is actually applied in such a narrow manner that a lot of evidence is not excluded.

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.

While some argue that the privilege only protects the guilty, it is also the case that it could be used to deny evidence to the accused.

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.

See also

Attorney-Client Privilege.  The Free Dictionary

What the Attorney-Client Privilege Really Means.  Smith, Gambrell, Russel.

Survival of the Attorney-Client Privilege.  Michigan Bar

The basics of the attorney-client privilege.  Legal Zoom

Your Lawyer’s Duty to Keep Things Confidential.  NOLO

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