For starters, the term is a bit misleading. The client is the one who has the privilege - the right to speak to a lawyer with confidence that discussions will remain secret. What the lawyer has is a legal duty. On threat of disbarment, the lawyer must shield and protect the client's secrets unless or until the client releases the lawyer from the obligation. And, without that release, the lawyer's responsibility remains even after the client dies.

Let's look at some instances where attorney-client privilege affects everyday people. For example, a group of employees may wish to open their own business together. If they consult a lawyer about establishing a partnership for a new firm, they need to know that their plans will remain confidential until they are ready to announce their venture.

A childless couple may want to explore aspects of adoption while not wanting to reveal their exploratory forays until they are certain whether or not they will proceed with formal applications.

Parents writing a will may prefer to make those arrangements without telling their children about its provisions in advance.

Creating a business, adopting a child, writing a will, in addition to signing a contract, buying a home or dealing with previous or future employers - each of these activities can involve confidential information and trigger legal concerns. The attorney-client privilege is what allows people to address those legal issues without fear that secrets will be exposed.

The attorney-client privilege is not the only legally recognized shield for shared secrets. Other commonly recognized privileges exist between husbands and wives, priests and penitents, and doctors and patients. But the attorney-client privilege predates them all.

In January, the new Congress has the opportunity to protect the integrity of our legal system by introducing legislation that will formalize the right of attorney-client privilege. Write to your senators and Congressional Representative asking them to formally acknowledge this traditional right. Ask them to resist regulating our longest-held freedom.

© 2008 American Bar Association