The Fallacy that Attorney-Client Privilege Has Been Eroded: Ramifications and Lessons for the Bar

Abstract

It is a common conception that modern courts have eviscerated the doctrine of attorney-client privilege. This Article posits that courts have done no such thing. The perception stems largely from two phenomena: the use of privilege exceptions and privilege exclusions in complex civil practice and criminal prosecutions has increased over time; and the fact that courts, legislatures, and the bar continue to fail to grasp the differences between attorney-client privilege and attorney-client confidentiality. The bar's vision of appropriate secrecy diverges significantly from the vision of legislatures establishing just laws and judges evaluating claims of privilege within the truth seeking litigation process.

This Article highlights the differences in vision. That, in turn, helps identify a central problem that ultimately redounds to the disadvantage of clients and the orderly development of the law; namely, the failure of all participants in the legal process to adequately distinguish privilege from confidentiality. The Article discusses some of the alternative responses available to the bar for addressing this failure.