NCJ Number
44803
Journal
Harvard Law Review Volume: 91 Issue: 2 Dated: (DECEMBER 1977) Pages: 464-487
Date Published
1977
Length
24 pages
Annotation
INCONSISTENCIES IN JUDICIAL APPLICATIONS OF ATTORNEY-CLIENT PRIVILEGE ARE EXAMINED, AND A MODEL THAT REFLECTS THE PRIVILEGE'S GROUNDING IN CALCULATIONS OF SOCIAL COSTS AND BENEFITS IS PROPOSED.
Abstract
TRADITIONALLY THE COURTS HAVE CONSTRUED THE ATTORNEY-CLIENT PRIVILEGE TO CONFER UPON LAWYERS AND CLIENTS ABSOLUTE PROTECTION AGAINST THE FORCED DISCLOSURE OF THEIR CONFIDENTIAL LEGAL DISCUSSIONS. THE COURTS HAVE BEEN UNWILLING TO BALANCE IN DISCRETE CASES THE HARMS OF EXCLUDING EVIDENCE AGAINST THE BENEFITS OF THE ATTORNEY-CLIENT PRIVILEGE. IT IS SUGGESTED THAT THIS STRESS ON THE NEED FOR CERTAINTY IN THE ATTORNEY-CLIENT PRIVILEGE CONFLICTS WITH THE UNDERLYING RATIONALE FOR THE PRIVILEGE, I.E., ITS CONTRIBUTION TO MAXIMUM LAWYER-CLIENT DISCUSSION. IF THE PRIVILEGE IS JUSTIFIED INSTRUMENTALLY, THEN THE COURTS SHOULD NOT NEGLECT THE COMPETING COSTS INCURRED BY APPLICATION OF THE PRIVILEGE. FOR INSTANCE, CERTAINTY MAY NOT ITSELF BE ABSOLUTELY NECESSARY; EVEN IF IT IS, NOT ALL CLIENTS HAVE AN EQUAL NEED FOR ITS PROTECTIONS. EXAMINATION OF THE UTILITARIAN ARGUMENT FOR A FIXED RULE OF PRIVILEGE INDICATES THAT THE ARGUMENT'S APPEAL TO THE NEED FOR CERTAINTY IS OVERSTATED. THE MANNER IN WHICH A FULLY AD HOC BALANCING OF ALL COMPETING INTERESTS MIGHT AFFECT CLAIMS FOR PRIVILEGE MADE BY CORPORATE AND INDIVIDUAL CLIENTS IS DISCUSSED. THREE POSSIBLE NONUTILITARIAN JUSTIFICATIONS FOR PRIVILEGE ARE CONSIDERED WITH A VIEW TOWARD THE DERIVATION OF A RIGHT TO PRIVILEGE, FREE FROM UTILITARIAN BALANCING. IT IS ARGUED THAT INDIVIDUAL CRIMINAL DEFENDANTS DO HAVE SUCH A RIGHT, BUT THAT THE PRIVILEGE CLAIMS OF ALL OTHER CLIENTS MUST BE SUBJECT TO RIGOROUS BALANCING ANALYSIS.