WASHINGTON: There is a good reason why the attorney-client privilege exists. It is not to protect criminals, but to ensure that an attorney and her/his client can speak freely in framing a defense. A basic legal right we have is that we are innocent until proven guilty. The attorney-client privilege is considered by many to be absolute protection against a client accidentally incriminating themselves.
One misnomer is that if the attorney is aware that a crime is committed her or she is somehow compelled to disclose that information to the court or law enforcement. That is the furthest thing from the truth.
What is the Attorney-Client Privilege
The privilege works to bar any testimony by the attorney against his or her client.
The Attorney-Client Privilege Test
The rules state that if the attorney is not informed that the conversation will lead to a crime and the following three conditions are met:
- The defendant has hired a licensed attorney in good standing
- Communication is confidential, i.e., not held in a crowded restaurant where they could be overheard
- The client has retained the lawyer for the purpose of legal advice or defense.
The attorney-client privilege applies unless the client waives that privilege. Most, if not all communications, are covered by the attorney-client privilege unless the client is sloppy and incriminates him or herself. See no. 2 above.
The system was designed to actuate a trial by jury system in which the defendant is judged by not only his peers but his actions in comportment with the law.
Did President Trump consult an attorney? Over the decades, he has had many. Those communications for the sake of a jury trial must remain confidential.
Attorney-client privilege limitation is not legality.
Reviewing Upjohn Co. v. United States, 449 U.S. 383, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981), the Supreme Court decision is that the attorney-client privilege protects communications the lawyer may have in creating his client’s defense. Including a survey of managers regarding questionable payments to foreign governments.
Once established, the attorney-client privilege provides what has been referred to as “absolute protection,” protecting information against disclosure regardless of the need or good cause for
Nonetheless, what is or is not legal is still and has always been subject to the interpretation of a judge.
Innocent until being proven guilty
If the protections of the attorney-client privilege are eliminated, the entire legal system as we know it would collapse. Compelling someone to admit guilt is the equivalent of imposed tyranny.
If no one could deny guilt to a crime, you would have no trial. You might as well enlist the SS and revert to communism. Take away free speech and the right to bear arms while you are at it.
The legal system was constructed to ascertain the truth, record the facts and preserve society.
Attorney-client privilege is part of the backbone of that concept and one of the key legal tenets that hold together trial by jury and the rule of constitutional law.
The essence of jurisprudence relies on the fact pattern analysis, application of precedent, and most of all use of a rational basis free of bias or prejudice.
Weakening attorney-client privilege sets a very bad precedent for America.
If communications with your agent presupposes guilt, absent an actual trial, then you have resorted to Marshall law. Meaning that individuals no longer enjoy and assumption of innocence until a fair trial occurs.
Attorneys need to consider the slippery slope. What else would he or she be held liable for?
Could the law later be construed to hold attorneys criminally liable for things they neglected to ascertain from their client during trial?
Without the attorney-client privilege, attorneys become accessories after the fact.
Would that also include murder?
Can communications with your attorney to prove that you are guilty. What about typographical errors? Or the hypothetical process of legal strategies? Once you open the door on eroding rights it becomes harder and harder to close.
For a defense attorney, the privilege of being able to openly discuss events with a client should be guarded very carefully.
Destroying that degree of parity profoundly impacts our legal system as a whole.
Trump and Cohen aside, the discussion on attorney-client privilege is unique and it is important to the practice of law.
The assertion that society functions better absent some degree of confidence in the legal system is absurd.
- Krauland, E. J., & Cribb, T. H. (2003). The Attorney-Client Privilege in the United States, an Age-Old Principle under Modern Pressures. In Prof. Law. Symp. Issues (p. 37).