Purpose of the Privilege

Scope of the Attorney-Client Privilege

Purpose of the Privilege

The attorney-client privilege lets a person seeking legal help tell the lawyer everything the lawyer needs to know, and that aim explains most of the doctrine that follows. In Upjohn Co. v. United States, the Supreme Court said the privilege exists “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.”¹ The Court tied that aim to how legal work gets done: sound advice or advocacy serves public ends, but it depends on the lawyer being fully informed by the client.² The privilege is also old. It is the oldest of the privileges for confidential communications known to the common law.³

The privilege works as a right of refusal. A client may refuse to disclose confidential communications made to obtain professional legal services, and may prevent anyone else, the lawyer included, from disclosing them.⁴ The right applies at trial and in discovery. Even when a statement bears on a disputed issue, the client may refuse to answer “What did you tell your lawyer?”, may stop the lawyer from revealing what the client said, and may keep a letter to the lawyer out of evidence.⁵ Wigmore’s formulation, quoted in Upjohn, describes the protection as permanent at the client’s instance, unless waived.⁶

The client holds that right because the privilege exists for the client, not for the lawyer. It is grounded in facilitating the lawyer’s representation, but the client has the right to assert it and the ultimate authority to waive it. A lawyer who asserts or waives it acts as the client’s agent, not under any authority of the lawyer’s own.⁷

The leading justification is instrumental: a privilege is defended by the behavior it encourages. The attorney-client privilege encourages full and candid revelations by the client, which lets the lawyer give appropriate advice, and it encourages people who need legal advice to seek it in the first place.⁸ The same rationale answers the obvious objection that suppressing evidence hurts the search for truth. If clients would never convey these communications without the privilege, the truth-seeking process loses nothing from it, and the legal system gains better advocacy from the full and frank exchange between lawyer and client.⁹ The Supreme Court has relied on similar reasoning for other confidential relationships, as in the psychotherapist-patient privilege recognized in Jaffe v. Redmond.

A second justification rests on privacy and fairness. On this humanistic view, the law should leave a protected zone around the lawyer and the client, and forcing a trusted counselor to betray a client’s confidences is profoundly wrong.¹⁰ Privacy concerns are the junior rationale, since the utilitarian one is described as more important.¹¹ Still, the privacy rationale explains why the privilege does not presume that the communications concern anything unlawful. Out of embarrassment, privacy concerns, or other reasons, clients may want to shelter conversations from family, friends, the public, or even the state.¹²

The purpose also sets the privilege’s reach. Modern lawyers can hardly practice without secretaries, file clerks, messengers, and other aides, and the client’s communications are often necessarily committed to them. For that reason “the privilege must include all the persons who act as the attorney’s agents.”¹³ The sections below return to agents and consultants.

The purpose just as clearly limits what the privilege covers, as the next illustration shows.

The first question seeks a communication, so the privilege applies. The second seeks what the defendant knows about the event. That knowledge would exist whether or not the defendant ever consulted a lawyer, and shielding it would do nothing to encourage candor. The source puts the point exactly: if information can be developed without relying on a communication made in a confidential relationship, privilege doctrines have no effect. They keep secret the fact that the information was discussed, but they do not make the information itself a secret.¹⁴ A client who wants the privilege to conceal physical evidence or hide his identity is asking for protection only tenuously connected to full and frank communication, and the privilege is generally inapplicable to those efforts.¹⁵

Privilege is unusual among evidence rules because it deliberately costs something. Almost every other rule aims at accurate and efficient fact-finding. Privileges instead protect certain relationships and values even when protection imposes significant costs on litigation, and in a given trial they may impede the search for truth.¹⁶ The cost is concrete: probative evidence is suppressed, the trier decides without it, and the probability of an erroneous outcome rises, while the benefits of conferring the privilege are difficult to measure.¹⁷ Citing Wigmore, lower federal courts have often said that the privilege should be strictly confined within the narrowest possible limits consistent with the logic of its principle, because its benefits are indirect and speculative while its obstruction of the truth is plain and concrete.¹⁸ That tension is why courts quarrel over boundaries, and it is why the elements taught in the next sections work as limits: each asks whether the communication at hand is the kind the purpose requires the law to protect.

Narrow construction has its own limit. The Supreme Court has said courts should not narrow a long-established application of the privilege on no more than “thoughtful speculation” that the narrowing would be consistent with the privilege’s purpose.¹⁹ In Swidler & Berlin v. United States, the government sought an exception to the posthumous application of the privilege where a deceased client’s communications were relevant to a criminal proceeding. It argued that so limited an exception was unlikely to diminish a client’s willingness to confide in a lawyer. The Court held that this argument did not make the compelling case needed to “overturn the common-law rule.”²⁰ The result matches the privilege’s general shape. The client’s personal representative may claim it after the client’s death,²¹ and the content of the conversations stays undiscoverable in perpetuity, even after the client has died.²²

Which body of law supplies the privilege’s rules, and then what a communication must show to qualify, are the questions the next sections take up.