defending ACP over objections

In "The Search and Seizure of Privileged Attorney-Client Communications," found in the University of Chicago Law Review, Eric D. McArthur offers a robust defense of attorney-client privilege, over those who would even justify seizing privileged files as part of a warranted investigation.

Why is the privilege so important? First, it secures constitutional rights, including

... a criminal defendant's rights to the effective assistance of counsel and a fair trial. Courts have also recognized that government invasions of the attorney-client privilege can deprive an individual of due process under the Fifth and Fourteenth Amendments. In short, if any evidentiary privilege is to be afforded the protection of the Fourth Amendment, none presents a more compelling case than the attorney-client privilege.

McArthur distinguishes several different objections to the privilege, demolishing each in turn. First up is the notion that ACP is a mere evidentiary privilege--in other words, the prosecution could be able to view ACP communications, provided they were not introduced at trial.

On this account, the government is allowed to search and seize privileged communications as to which there is probable cause and use the information thus obtained in preparing its case, so long as the privileged communications, and possibly their fruits, are not introduced at trial.

There are at least two problems with this theory. First, it misconceives the nature of the privilege. It is simply not the case that the attorney-client privilege applies only to the introduction of evidence at trial. For example, privileged communications are not subject to discovery, and this rule is absolute in the sense that it applies even when the party seeking access to the privileged communications can show substantial need. Similarly, a grand jury cannot compel an individual to produce privileged communications, even when there is probable cause to believe that the communications contain evidence of crime. It would be anomalous if the government, prohibited from gaining access to privileged attorney-client communications by way of discovery or subpoena, could make an end run around these procedures by searching and seizing the communications.

Second, to refuse to extend the protections of the attorney-client privilege to the investigatory stage preceding trial would be profoundly at odds with the policies behind the privilege. If the government could search and seize privileged communications, attorney-client communications would be severely chilled and lawyers' ability to represent their clients effectively would be undermined. Conscientious attorneys would advise their clients that the government could lawfully intercept their communications. Faced with such a possibility, few clients would feel free to communicate openly with their attorneys.

One of the most common responses to McArthur's argument is to claim that the, under this scheme, clients would still feel their information was protected, as it wouldn't be admissable at trial, mitigating the "chilling effect." McArthur dispenses with that counterargument:

This chilling effect is unlikely to be eliminated by explaining to clients that their intercepted communications cannot be introduced into evidence at trial. One suspects that such a distinction would be lost on many clients, whose candor is likely to be undermined by the bare threat of government intrusion into the attorney-client relationship and is unlikely to be rehabilitated by a lecture on the permissible uses of intercepted communications. In any event, any such lecture would also include the fact that evidence derived from intercepted communications-as opposed to the communications themselves-may well be admissible,44 a fact that can only be expected to confirm to clients that they communicate openly at their peril.

Attorney-client communications would be chilled by the search and seizure of privileged communications even if the use of derivative evidence were prohibited. If the government could access privileged information, it would be difficult for anyone, least of all the client, to be confident that no derivative evidence would be introduced at trial. Prosecutors and investigators would almost certainly be able to use privileged information in ways that neither the client nor the judge could detect. That possibility would cause individuals to think twice before disclosing potentially damaging information to their attorneys.

Moreover, attorney-client communications would be chilled even if courts were somehow able to detect and suppress all the fruits of the breach of the privilege. This is because the privilege extends not only to clients' disclosures of factual information about the case that would be damaging if introduced at trial or that would lead investigators to additional evidence, but also to other communications, including, for example, discussions of trial strategy. A party whose trial strategy had been disclosed would be at a substantial disadvantage and an exclusionary remedy would not be responsive.

This is a point that I haven't seen developed very well in the initial rounds I've judged. ACP covers strategic communications as well, and in our adversarial system, that gives far too much leverage to the prosecution, who have no such obligation to disclose their plans to the defense counsel.

So, it's clear that allowing the seizure of ACP communications inhibits a defendant's rights, and hampers their ability to have effective counsel. But what of the objection that the ACP, in McArthur's words, is in "derogation of the search for truth," and thus the privilege should be narrowly drawn?

[It] is not accurate to say that the privilege operates in derogation of the search for truth, because without the privilege, many of the statements that it shields would not be made in the first place. On this view, the attorney-client privilege simply serves to restore the status quo ante and is therefore truth-neutral.

In other words, ACP is a critical element to ensuring at least a modicum of truth in the proceedings.