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.

a miniature rant about the corrosive implications of attorney-client privilege

The rant is courtesy of William Otis, in "A tale of truth in modern America," found in the Harvard Journal of Law and Public Policy, Winter 2003, pp. 235-37.

Some might think it odd to believe that a relationship of authentic trust can be built on a shared, if unspoken, understanding that authentic trust is impossible. And, of course, a good deal of the time there simply is no trust. Clients intuitively understand that a person who will dissemble for them might sooner or later dissemble to them. Readiness to cut a corner here and another there is not a character trait easily confined. The willingness to deceive, the temptation to call deceit by a more polite name, and the consequent ever-expanding seepage of dishonesty in the way we deal with one another, all have their own cancerous dynamic in the soul of a human being, of a profession, and of a nation. It is thus not mere circumspection that accounts for the fact that clients so often lie to their lawyers. On the contrary, clients wisely view lawyers with the suspicion we have earned by our penchant for excusing everything from willful blindness to soft-core perjury.

We feel the need to ponder the question before us today because we have long since abjured the simple man's answer to the question of what should be a lawyer's responsibility to the truth. The simple man's answer is, "Tell it." But that won't do for the more sophisticated among us, those who see, or say they see, the nuances and complexities of the world in general and the practice of law in particular. Ours are the precincts of more refined thinking. Only I suggest it is not refinement; it is equivocation impersonating refinement-or at least so I used to think. Increasingly, I think it's just dishonesty impersonating equivocation.

a summary of attorney-client privilege, with quotes

Stephen A. Calhoun, in "Globalization's Erosion of the Attorney-Client Privilege and What U.S. Courts Can Do to Prevent It" (found in the Texas Law Review, Nov 2008, pp. 235-265), offers a decent summary of the rationale for attorney-client privilege.

The privilege is generally codified as a rule of evidence. Though the attorney-client privilege was originally conceived to cover communications between lawyers and individual clients, it is now clear that the privilege also covers certain communications with clients that are corporations or other entities.

The principal rationale for the attorney-client privilege in the United States is that privileged communication is needed for the "ascertainment of truth for the ends of justice." As stated by McCormick's famous evidence treatise, this utilitarian theory rests on three propositions:

First the law is complex and in order for members of the society to comply with it in the management of their affairs and the settlement of their disputes they require the assistance of expert lawyers. Second, lawyers are unable to discharge this function without the fullest possible knowledge of the facts of the client's situation. And last, the client cannot be expected to place the lawyer in full possession of the facts without the assurance that the lawyer cannot be compelled, over the client's objection, to reveal the confidences in court.

Though this is the principal rationale for the privilege, it is bolstered by other theories. McCormick states that "[a]t the present time it seems most realistic to portray the attorney-client privilege as supported in part by its traditional utilitarian justification, and in part by the integral role it is perceived to play in the adversary system itself." The Supreme Court endorsed this rationale for the attorney-client privilege in Upjohn Co. v. United States:

Its purpose is 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. The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer's being fully informed by the client.

What is "Attorney-Client Privilege?"

The American Bar Association has some helpful information defining the rules and scope of attorney-client privilege. It also includes the relevant court cases for further / deeper study.

What is the privilege?

Under principles of federal common law, the attorney-client privilege protects confidential communications by a client to an attorney made in order to obtain legal assistance from the attorney in his or her capacity as a legal adviser and the advice given by the lawyer in the course of representing the client. SeeUnited States v. Amerada Hess Corp., 619 F.2d 980, 986 (3d Cir. 1980); In re Benun, 339 Bankr. 115, 126 (Bankr. D.N.J. 2006); In re Universal Service Fund Telephone Billing Practices Litigation, 2005 WL 3725615 at *5 (D. Kan. July 26, 2005):

What are its essential elements?

Under federal common law, the essential elements of the attorney-client privilege are: (1) where legal advice of any kind is sought (2) from a professional legal advisor in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal advisor, (8) except if the protection be waived.

It's important to note that not every aspect of the case is protected by the privilege.

Only the communications pertaining to advice, and not the underlying facts, are protected by the privilege. Upjohn Co. v. United States, 449 U.S. 383, 389 (1981); Williams v. Sprint/United Management Co., 2006 WL 1867478 at *5 (D. Kan. July 1, 2006) ("The protection of the privilege extends only to communications and not to facts. A fact is one thing and a communication concerning that fact is an entirely different thing."); United States v. Keystone Sanitation Co., 885 F. Supp. 672, 675 (M.D. Pa. 1994) ("attorney billing statements and time records are protected by the attorney-client privilege only to the extent that they reveal litigation strategy and/or the nature of services performed."); Philadelphia v. Westinghouse Elec. Corp., 205 F. Supp. 830, 831 (E.D. Pa. 1962). As the Supreme Court explained in Upjohn: "The client cannot be compelled to answer the questions, ‘What did you say or write to the attorney?', but may not refuse to disclose any relevant fact within his knowledge merely because he incorporated a statement of such fact into his communication with his attorney." 449 U.S. at 396.

Privilege is a response to a request by the opposing counsel. It's similar to--but not the same as-- confidentiality, which is an ethical obligation on the attorney to keep interactions with her client "close to the vest."

The ABA's definition of confidentiality can be found here.