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Debate: Attorney-Client Privilege

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Should the attorney-client privilege be abolished?

Background and Context of Debate:

The attorney-client privilege, sometimes called ‘lawyer-client privilege’, or ‘legal professional privilege’ is a rule of law that protects communications between attorneys and their clients. It means that a client may, and his lawyer must, refuse to give evidence in legal proceedings about what was said or written between them. Neither the lawyer nor his client can be compelled by any court (or any other authority for that matter) to disclose or answer questions about any communication between them. This privilege arises in a lawyer-client relationship regardless of the matter at hand – whether it is a criminal matter, a civil or commercial matter, a family matter or any other matter. It is important to note that the attorney-client privilege does not extend to communication about a plan to commit a crime in the future – if a client goes to a lawyer asking for legal ‘advice’ on how to commit crime X, the lawyer may of course (in fact often he has a duty to) report the client to the authorities. In addition to the attorney-client privilege, many legal systems recognise other forms of privilege, such as the ‘privilege against self-incrimination’, ‘doctor-patient privilege’, and ‘public interest immunity’ privilege to protect undercover intelligence officers or secret service agents. The crucial point, however, is that all these other privileges can often be overridden where there is good reason. For example even public interest immunity can be prised open if it is necessary to get the information to prevent the conviction of an innocent person. Attorney-client privilege, by contrast, can almost never be overridden – even when the privileged communication can conclusively prove the innocence of another person about to be wrongly convicted for, say, murder – which in some places carries a death sentence. This near-absolute nature of the attorney-client privilege is not only unusual but extremely controversial.

Other background resources.

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Justice: Does the attorney-client privilege uphold principles of justice?

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Yes

  • Attorney-client privilege upholds justice by improving legal access. Convictions can result from lack of access to legal advice. In criminal cases, convictions can result from a lack of access to legal advice and knowledge as much as it can from actual wrongdoing. To ensure defendants are willing to seek legal counsel, it is necessary to guarantee that their communications with attorneys will not later be used against them. In other words it is necessary to guarantee that whatever is said or written will remain absolutely confidential. The attorney-client privilege has been regarded as one of the most fundamental rights in any legal system for this reason. It is the foundational right that ensures that every defendant has equal and effective access to legal help, and therefore access to justice.


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No

  • Attorney-client privilege obstructs justice. In criminal cases ‘justice’ fundamentally demands two things: that the guilty are convicted, and, even more importantly, that the innocent are acquitted. The attorney-client privilege obstructs both. It blocks the courts’ access to attorney-client communication when such evidence could conclusively show that X has committed a criminal offence, even when X is some other person and not the client himself. Worse, the privilege stubbornly blocks access to evidence that may well prove somebody’s innocence – even when such evidence will in no way incriminate the client himself. Besides, there is no evidence that confidentiality is an important factor in encouraging people to seek legal advice. In fact, many accused persons seem willing to freely ‘confide’ in relatives and acquaintances, knowing that those third parties can be subpoenaed and compelled to testify against them. When defendants do not freely seek legal advice, the main reason by far is that they are too poor afford it. That is the true ‘access to justice’ problem in the legal system.



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Information: Does the attorney-client ensure clients give lawyers the full story?

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Yes

  • Without attorney-client privilege, people would not tell their lawyers anything. Even if a defendant is willing to seek legal advice, in the absence of the privilege they will be reluctant to be completely honest with their lawyers, for fear that what they say may be used against them later. It is important to realise that even an innocent client may have ‘bad’ things that he may wish to remain confidential. It is not true that only guilty people will have something to hide. Yet, to advise a client properly, an attorney must have a complete knowledge of the facts, including any ‘bad’ or damaging facts. This gives the lawyer a better understanding of the client’s legal liabilities, and a better idea of what he will need to answer at trial. This in turn allows him give more accurate advice to his client, and to prepare his defence accordingly. By guaranteeing that privileged communications will remain strictly confidential and encouraging defendants to be more forthright, the law is giving real meaning to a defendant’s right to a fair trial and a proper defence.



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No

  • Attorney-client privilege does not cause clients to divulge all information. Clients frequently withold information from their lawyers because they worry that a lawyer will not ‘try his best’ if the lawyer thought they were guilty or that they were ‘bad people’. This has nothing to do with a fear about a lack of confidentiality. Indeed, this is why many clients frequently do withold vital information from their lawyers now, even though we do currently have the attorney-client privilege.
  • Rules of law should not be designed to protect the guilty. And it is worth noting that the attorney-client privilege often protects, and is the most valuable to one particular group - the guilty.
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Argument #3

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Yes

  • The client’s interests would be harmed without the client-attorney privilege. The client's estate could become civilly or criminally liable because of the disclosure. The evidence may contain scandalous matter that could blacken the memory of the client or embarrass his family. Clients want confidentiality for a wide variety of reasons, not only for reasons connected to personal criminal liability. Even if these confidences are not any sort of admission of criminal wrongdoing, they may nonetheless be matters that the client, for one reason or another, would not wish divulged. Abolishing the privilege not only violates a person’s right to privacy, but a person who knows that his communications may be later revealed (even after his death, or even with ‘use immunity’) may well decide that it is better not to go to a lawyer in the first place – in other words, leading to the access to justice problem.


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No

  • There are many situations in which attorney-client privilege can/should be restricted. Such as where doing so cannot possibly affect the interests of the defendant adversely. One example of this has already been raised: when the confidential information just does not incriminate the client himself (although it might clear somebody else). A second situation is when the client is dead. Few people will be discouraged from being candid with their lawyers if there is merely the possibility that the communications may be disclosed after their death. Few people are concerned about criminal liability after they are dead, and few people care about their posthumous reputation. A third situation may be when the communications have already been somehow leaked to the public anyway. And a fourth situation is when the state is willing to grant ‘use immunity’ to the client – which means that any confidential communication disclosed cannot thereafter be used in any way against that particular client. ‘Use immunity’ has already been used to make feasible certain restrictions on other privileges, such as the privilege against self-incrimination. A fifth possible situation is when the matter at hand has simply nothing to do with criminal or civil liability. The matter might well just be about conveying a piece of land or drawing up a testamentary will. There would seem little reason to fear that, if privilege were not available in such circumstances, communications between lawyer and client would be inhibited.


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Exceptions: Are exceptions to the client-attorney privilege inappropriate?

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Yes

  • The predictability in the application of the privilege protection is critical to its effectiveness and success. Openness and candour by the client can only be encouraged if the client knows that his communications with legal counsel are, and will remain, confidential and protected. The problem with recognising piecemeal ‘exceptions’ to the privilege is that uncertainty is created by such exceptions. People become unsure about the extent of such exceptions (which may be ever-enlarging) and therefore cannot be sure that their communications will remain confidential five or ten years down the road.


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No

  • In addition to situations where the client’s interest cannot possibly be hurt, there are situations where the client’s interest may indeed be hurt but where this should be outweighed by some other very important public interest. In other words perhaps there should be ‘necessity’ or ‘public interest’ or ‘in the interests of justice’ balancing exceptions to the privilege. One such situation has already been highlighted: when the confidential communication is necessary to prove somebody else’s innocence. A second situation may be when public safety is at risk, for example if the client holds some very vital information but is not willing to disclose it to anyone other than his lawyer. A third situation may be where the crime involved is some kind of financial crime or fraud, where the people that stand to lose may be thousands or even millions of vulnerable shareholders or (worse) old-age pensioners [see further below]. In such cases there is a strong argument for courts weighing up and balancing the client’s interests against society’s and making a decision accordingly; instead of rigidly clinging on to the attorney-client privilege rule.


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Corporations: Is the client-attorney privilege important to corporations?

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Yes

  • An higher judicial willingness to remove the privilege may damage compliance. Fear of compulsory disclosure may deter candid, careful, detailed, written advice being given by lawyers to their clients. Does effective corporate regulation require the greater use of intrusive measures like the removal of legal professional privilege, or would more informal, cooperative or voluntary mechanisms – like leniency or immunity policies and discretions – achieve better outcomes?


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No

The corporate sphere is a special one in this debate. Given the complexity of large corporate structures and their activities, often the best and only evidence about the conduct of a corporation can be obtained from that corporation’s own communications, including communications with its lawyers (hence the increasing importance of corporate ‘whistleblowers’). Furthermore powerful corporations may (often successfully) use their resources deliberately to conceal evidence of wrongdoing and to frustrate investigations. If corporations can further employ yet another advantage – the attorney-client privilege – the public interest in detecting and punishing corporate crime will inevitably almost always be defeated.


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Pro/con resources

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Yes

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No


References:

This article is based on a Debatabase entry written by Nicholas Tan. Because this document can be modified by any registered user of this site, its contents should be cited with care.

Motions:

  • This House would abolish the attorney-client privilege
  • This House would recognise ‘public interest’ exceptions to the attorney-client privilege
  • This House wants the truth, the whole truth
  • This House believes that the goal of preventing the conviction of the innocent should never take a back seat in the law
  • This House would make lawyers put the interests of justice first

In legislation, policy, and the real world:

See also

External links and resources:

Books:

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