The Privilege of Probity: Forgotten Foundations of the Attorney Client Privilege
Publication Date:December 01, 2013
In its modern formulation, the attorney-client privilege is justified only insofar as it promotes compliance with law. As the Supreme Court emphasized at the outset of its analysis in Upjohn v. United States, 449 U.S. 383 (1981), the purpose of the privilege “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 Court repeated this formulation in the course of reducing the burden of proof necessary to establish the crime-fraud exception and suggesting that the exception may apply to future wrongdoing beyond crime or fraud. See Zolin v. United States, 491 U.S. 554 (1989). Many state courts rely on the same justification for the privilege, and a growing number of jurisdictions apply the crime-fraud exception to future wrongdoing beyond crime or fraud. The drift is understandable—if law compliance is the primary justification for the privilege, there is no reason to recognize the privilege when the client intends to resist or defy the law.
In early American cases, however, the privilege was treated as fundamental not just to encouraging law compliance, but to the client’s right to know the law and to make an informed decision about whether or not to comply. Indeed, the privilege was regularly upheld in contexts where the modern crime-fraud exception would preclude its application because the client sought advice with respect to future fraud or other wrongdoing. In expanding the crime-fraud exception and reducing the burden to establish it the Supreme Court and many state courts have simply ignored these early American cases. Courts have instead relied on a tendentious history of the privilege provided by John Henry Wigmore in his famous evidence treatise, first published in 1904. Wigmore, however, was influenced by English precedent that played almost no role in the development of the privilege in early American practice. Based on a survey of all attorney-client privilege cases published between 1789 and 1904, this article recovers early American understandings of the privilege and situates them in the context of changing views about the adversary system as well as the growth, authority, and probity of the legal profession at a time when access to law increasingly required access to a legal expert. The article contends that Wigmore’s approach to the privilege, and hence the approach of modern courts, is not merely inconsistent with the early American cases, it obscures the tension in a democratic society between promoting law compliance and protecting the right of citizens (rather than elite professional advisers) to decide whether and on what terms to comply with law.