Dirty laundry.

• Jurisdiction: United States
• Author: Pope, Daniel J.
• Date: 01 January 1999

IN 1997, I was asked to be on a panel entitled "Ethics in Cyberspace" for the Tort and Insurance Practice Section of the American Bar Association. When I learned the program was to be in La Jolla, at the Sheraton Torrey Pines, home of two of the great public golf courses in the world, I quickly accepted.

Much later I found out that my topic was the attorney-client privilege, a subject that can be as dry as dirt. Then, the U.S. Supreme Court, in a unanimous decision, held that the President of the United States had to appear for a deposition in a civil case of dubious merit, the Court reasoning that his deposition would prove to be no unusual distraction for him or the country.

Well, some decisions we know in our heart are right, some are wrong, and some are really wrong. Often it takes a lot of time to determine the difference. It did not take long to place this one in the "really wrong" category.

Privileges in the news

About the only bright spot has been the making of the subject of privileges as fashionable and titillating as an Elmore Leonard novel. We have read and heard about privileges of every stripe, from the attorney-client privilege, to executive privilege, and protective function privilege. We have discovered that while you cannot force a husband to testify against his wife, or vice versa, you can force a mother to testify before a federal grand jury in exquisite detail about sexual conversations she had with her daughter, that there is no Secret Service agent privilege, and that even records of book purchases may not be safe.

For a long time during this saga it appeared that executive privilege would save the day. Although most lawyers may think executive privilege was first used by Nixon, the right of executive privilege was first advanced by Washington in 1794 and has been used successfully by presidents since, including Jefferson, Madison, Jackson, Polk, Lincoln, both Roosevelts, Truman, Eisenhower and Kennedy. But as in Nixon's case, although the issue there was power, not sex, executive privilege was not successful for Clinton in 1998.

Death is not the end

Last June, the U.S. Supreme Court addressed the issue of the attorney-client privilege in a criminal investigation when the client is dead in Swidler & Berlin v. United States, 118 S.Ct. 2081 (1998). The D.C. Circuit had allowed posthumous disclosure of client confidences in a criminal case that involved notes taken by Vincent W. Foster Jr.'s lawyer, James Hamilton, shortly before Foster's suicide. In re Sealed Case, 124 F.3d 230 (1997).

The D.C. Circuit proposed a balancing test that would have required disclosure when confidential communications were of "substantial" importance to a criminal investigation, and the risk of chilling an attorney-client communication was relatively "insignificant." Although the Supreme Court disagreed and reversed, the majority ominously added that it was not saying that a common law rule such as the attorney-client privilege, once established, should endure forever.

Swidler should give us all pause. The events of the early 1970s helped define the public's view of lawyers that has persisted since, and it was a view that was and is significantly unflattering. After all, almost all of the major players in the Watergate scandal were lawyers--Nixon, Erlichmann, Dean, Mitchell. The last three went to jail. Today's scandal is different, but again lawyers are in the middle of it. This time, however, important and lasting judicial opinions regarding fundamental rights --like the attorney-client privilege--are being issued in a highly emotional atmosphere, giving new meaning to the old saying that bad facts make for bad law.

In order to understand the attorney-client privilege today, and where it will be tomorrow, particularly in a highly computerized world, one has to look back to see how it developed and has worked.

A historical perspective

A long, long, time ago, in a place far, far away, an individual had one lawyer, and that lawyer had one client. The lawyer generally worked alone, maybe with a law clerk and secretary. When the client visited the lawyer with a problem, the lawyer would listen, take a few notes, have the clerk do a little research, think about it, and then dispense some advice in person, not unlike the family doctor--another relic from ancient times.

If the communication by the client to the lawyer was made in confidence for the purpose of seeking legal advice, the communication was protected. Period. It may surprise you to know that this protection dates back to Roman times, although for reasons different than those advanced today.(1) Trial lawyers in Roman times, first by custom and then by imperial decree, were considered incompetent to testify as witnesses for obvious reasons. If the testimony was favorable, who would believe it? If the testimony was unfavorable, well, who would believe the lawyer? The same was true, by the way, for family members and servants.

In England, the attorney-client privilege was not even questioned as late as 1577. Instead of incompetence, however, the privilege was based on the oath and honor of an English barrister. (The solicitor--not quite as noble as a barrister--still could maintain the privilege based on principles of...