NCJ Number
56664
Journal
California Law Review Volume: 66 Issue: 5 Dated: (SEPTEMBER 1978) Pages: 1061-1092
Date Published
1978
Length
31 pages
Annotation
THIS ARTICLE EXAMINES THE ENGLISH AND AMERICAN LEGAL TRADITION WHICH SUSTAINS A PRIVILEGE TO THOSE COMMUNICATIONS BETWEEN A LAWYER AND CLIENT THAT ARE DIRECTLY RELATED TO PENDING OR ANTICIPATED LITIGATION.
Abstract
THE RULE OF CONFIDENTIALITY FOR COMMUNICATIONS OF A CLIENT TO HIS OR HER LAWYER IS CRUCIAL TO THE PRACTICE OF LAW. CLIENTS MUST REMAIN ASSURED THAT THE STATEMENTS WHICH THEY MAKE WILL BE HELD SECURE AGAINST THE SUBPOENAS AND INQUIRIES OF PROSECUTORS. IT HAS BEEN RECOGNIZED, HOWEVER, THAT THE RULE MUST NOT BE MISUSED IN SUCH A WAY THAT LEGAL CONSULTATION CONCEALS CRIMINAL PLANS AND CONSPIRACIES. AN EXAMINATION OF THE DEVELOPMENT OF THE ATTORNEY-CLIENT PRIVILEGE DOES NOT ASSIST IN DEFINING THE BOUNDARY FOR THE PROPER INVOCATION OF THE PRIVILEGE, BUT SUCH INQUIRY DOES REVEAL MANY OF THE COMPLEX ISSUES REGARDING PUBLIC POLICY AND INDIVIDUAL RIGHTS. UNDER THE UNIFORM RULES OF EVIDENCE, THE SCOPE OF THE PRIVILEGE EXTENDS TO CONSULTATIONS CONCERNING BOTH CRIMINAL AND CIVIL CASES, TO PLAINTIFFS AND DEFENDANTS, AND TO ADVISORY AS WELL AS ADVOCACY SERVICES. THE PRIVILEGE BREAKS DOWN WHEN A CLIENT SEEKS ASSISTANCE CONCERNING FUTURE CRIMES OR TORTS. MOREOVER, AS AN OFFICER OF THE COURT, AN ATTORNEY IS OBLIGATED TO REVEAL TO THE PROPER AUTHORITIES ANY INFORMATION NECESSARY TO PREVENT A THREATENED CRIME. SEVERAL DIFFICULT AREAS OF THE LAW EXIST, HOWEVER, WHERE THE ATTORNEY HAS DISCRETION IN THE FORM AND EXTENT OF WHAT HE REVEALS TO THE COURT. IN CERTAIN INSTANCES, THE ATTORNEY'S OBLIGATION TO ZEALOUSLY DEFEND HIS CLIENT COULD REQUIRE THE ATTORNEY TO TOLERATE HIS CLIENT'S COMMISSION OF PERJURY. FURTHER DISCUSSION EXAMINES THE ENGLISH AND EARLY AMERICAN CASE LAW ON THE CONFIDENTIALITY RULE. FOOTNOTES ARE PROVIDED. (TWK)