Attorney-Client Privilege Neither “Sacred” Nor “Dead”

Attorney-Client Privilege Neither “Sacred” Nor “Dead”
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Attorney-Client Privilege Neither “Sacred” Nor “Dead”; Strange History; Dubious Justification Increasingly Challenged 

WASHINGTON, D.C.  (April 17, 2018) – Reacting angrily to the raids on his lawyer, President Donald Trump declared that the attorney-client privilege is now “dead,” and his lawyer in court characterized the privilege as “sacred,” but it is neither, says public interest law professor John Banzhaf, who has looked at its historical beginnings, and to the dubious justifications offered for its full-throated application.

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The privilege originally didn't even apply to lawyers, notes Banzhaf.   In the mid-1700's, British courts created the privilege to prevent any "gentlemen" - including the great majority of gentlemen who were not lawyers - from having to breach any promise of secrecy.

As one scholar noted, the privilege was not initially based upon any specific goal or societal need (e.g., to encourage people to be open with their lawyers), "but on the client's interest in secrecy and the damage to the lawyer's honor should a vow of secrecy be broken."

In short, a privilege which was originally created simply so that no gentlemen would have to betray confidences was transmuted into a narrower one helping only attorneys, and not to encourage justice or for any other higher purpose.

To justify keeping the privilege alive, if not to expand it, lawyers have tried to argue that it is of overwhelming importance that clients be able to speak frankly to the lawyers, but exactly why this is true, and is so important to society in general, is often glossed over.

If a client tells his lawyer something favorable to his case (e.g., "I didn't do it"), he is not harmed if his attorney might be required to later divulge the conversation.  So, at least in that situation, there is no need whatsoever, much less a compelling need, for the privilege.

Similarly, if the client tells his lawyer something unfavorable (e.g., "I did do it"), and he is willing to truthfully admit it, there is no harm in later requiring disclosure by the lawyer.

In a civil case, where the client can be forced to answer questions under oath, he would be upset if his lawyer were required to divulge his earlier harmful admission, but only if he is going to lie.

So, at least in a civil proceeding, the attorney-client privilege would seem to protect only clients who lie - hardly a strong justification for retaining it.

If, in a criminal proceeding, the defendant takes the stand and lies, a privilege which prevents his lawyer from being required to divulge what he had said in effect makes that lie possible, thereby tending to free criminals who have not only committed the crime for which they were charged, but also the often-more-serious crime of perjury.  This hardly seems to be a justification for maintaining the privilege.

Only in situations involving a criminal trial in which the defendant declines to testify does the privilege seem to make much sense, but even then encouraging accused criminals not to lie to their own attorneys seems a very slim foundation for maintaining it, and it certainly seems far from "sacred."

Moreover, countless attorneys have reported that criminal defendants tend to lie, or otherwise withhold vital information which they believe might hurt them, despite the privilege - so it's value in helping to insure justice is dubious.

Indeed, as another scholar has observed: "Yet assuming there are [instances where the privilege is invoked solely as a matter of principle], it seems fair to say they are greatly outnumbered by those in which the principle of privacy is invoked to conceal legally dubious or dirty business. And when dubious or dirty business has been done, most likely someone has suffered as a result. In the nature of things, then, the attorney-client privilege has its victims."

The analysis continues, "The common sense estimate of situations involving the attorney-client privilege is that the lawyer, though an 'officer of the court,' is allowed to conceal wrong-doing by the client in the face of a specific demand for its disclosure by the very person suffering the wrong. . . .  No argument of justification should ignore the fact that the attorney-client privilege, as far as it goes, is not only a principle of privacy, but also a device for cover-ups."

In summary, then, the attorney-client privilege may serve little purpose in civil proceedings, and in criminal ones if the defendant chooses to testify.  And even in the limited situations in which a criminal defendant refuses to plead to a lesser charge or to testify at his trial, it arguably "conceal[s] legally dubious or dirty business," and serves as "a device for cover-ups."

Even assuming that the attorney-client privilege serves an important public interest and should be retained, that does not mean that it is absolute, and that any apparent inroad or other alleged violation means that it is "dead," and that sacred American values are at stake.

Virtually no privilege - including those clearly more valuable, important, and fundamental - are absolute and admit of no exceptions or limitations.  The privilege of free speech has numerous exceptions, as does the privilege to engage in peaceful demonstrations.  Even the freedom to practice one's religion has to be limited when it must be balanced against other important societal interests.

Clearly, learning whether the President and/or those very close to him committed serious crimes, including some which may have compromised the fundamental right of all Americans to a free and fair presidential election, is of paramount public importance, and so that interest must be weighted against the public interest underlying the attorney-client privilege in this situation.

Here, where there was sufficient evidence to convince several Republican officials appointed by a Republican president, as well as an impartial federal judge, that attorney Michael Cohen - who bragged that he was a fixer who would do anything for Trump - might not fully comply with an ordinary subpoena, and might instead try to destroy or tamper with vital evidence of a crime, the facts would seem to justify the issuance of a judicial order permitting the unannounced seizure of various types of evidence.

So, despite claims to the contrary, the recent seizure of attorney files in these extraordinary circumstances, and subject to various well established strict controls (e.g., an independent and impartial "taint" team), certainly does not mean that the privilege is "dead," argues Banzhaf.


Professor of Public Interest Law

George Washington University Law School,

FAMRI Dr. William Cahan Distinguished Professor,

Fellow, World Technology Network,

Founder, Action on Smoking and Health (ASH),

2000 H Street, NW, Wash, DC 20052, USA

(202) 994-7229 // (703) 527-8418  @profbanzhaf

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