Although attorney-client privilege resonates with lawyers, non-lawyers
may wonder why there is so much concern about a concept that may seem esoteric.
The following questions and answers may help in explaining the privilege
to a general audience:
What is the attorney-client privilege?
Attorney-client privilege is the right of clients to refuse to disclose
confidential communications with their lawyers, or to allow their lawyers
to disclose them. It is the client's privilege, not the lawyer's, and is
the earliest known "privileged communication" in the law. The
attorney-client privilege is viewed as fundamental to preserve the constitutionally
based right to effective assistance of legal counsel, in that lawyers cannot
function effectively on behalf of their clients without the ability to
communicate with them in confidence. Attorney-client privilege extends
to the work product.
What is a work product?
A work product in context of attorney-client
privilege can range from the lawyer's records of the client discussion,
the lawyer's perceptions of what is being said or notes on how to
proceed with the case.
Are communications with lawyers the only types of communication protected
as confidential?
No. Communications between other persons with special relationships
also are accorded confidentiality protections, or "privileged" status.
All of these reflect a societal view that it is more important to foster
full and frank communication between people with specific relationships
than it is to allow others to break the protection of confidentiality that
such privileges provide. Among other privileged communications are priest-penitent
communications, between clergy and those whom they counsel; doctor-patient
communications, allowing people with physical or mental illness to consult
physicians in confidence; and, under certain circumstances, spousal communications,
which can protect from forced disclosure confidential conversations between
married couples.
Why does the ABA have a task force on the Attorney Client Privilege?
The ABA Task Force on the Attorney Client Privilege was created in
October 2004 in response to what was perceived as a growing trend to encourage
or coerce corporations to waive their privilege in exchange for lenience
in government investigations, prosecutions or sentencing for alleged corporate
crime.
Why should the public care about protecting corporations' confidential
communications with lawyers, especially after egregious examples of corporate
crime such as Enron?
The ABA agrees that all criminals should be subject to prosecution
and punishment, in accordance with due process and preservation of constitutional
protections. But a basic tenet of our Constitutional system is that people
cannot be forced to incriminate themselves. The courts have ruled that
organizations are entitled to the same attorney client privilege as are
individuals.
The ABA, coalition members and the former Justice Department officials
are asking only that corporations retain the same privileges accorded to
individuals and recognized by the courts as corporate rights. Corporate
leadership threatened with indictment of the company can be pressured into
surrendering legal rights even when no wrongdoing has taken place, to avoid
harm to stock values, business relationships and public trust. When the
rights of corporations are infringed, the impact on society at-large can
be enormous. Corporate value is diminished and investors lose money. Investors
include such entities as pension plans serving retired people who worked
their entire lives, and pensions are put at risk. Employees lose jobs,
and their families are put at risk. In 2006 the Supreme Court of the United
States overturned the conviction of Arthur Andersen, but that was too late
to save the jobs of 28,000 employees.
A more complete list of questions and answers is available at: http://www.abanet.org/media/issues/acprivilegeqa.html.
© 2008 American Bar Association
