Great (and Reasonable) Expectations: Fourth Amendment Protection for Attorney-client Communications
| Jurisdiction | United States,Federal |
| Citation | Vol. 32 No. 01 |
| Publication year | 2008 |
I. Introduction
"How much should I tell my attorney?"
Almost every client seeking legal advice for the first time probably asks herself or himself this question. The attorney will likely urge the client to disclose everything, because without complete information the attorney may be unable to give comprehensive and accurate advice. In order to encourage full disclosure, the attorney may assure the client that the attorney-client privilege protects the communication, thereby persuading the client to divulge all relevant information without fear that the communication will be disclosed against the client's wishes. Yet, such assurance may be misleading because application of the privilege to a particular communication may be difficult or impossible for the attorney to predict or control.
The attorney-client privilege is generally understood to protect confidential communications between the client and attorney made for the purpose of giving or receiving legal advice.(fn1) "Its purpose 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."(fn2) The privilege is the oldest common law confidential communication privilege(fn3) and is recognized in some form in every state and in the federal judicial system.(fn4) Its universal acceptance reflects the common belief that society as a whole benefits when people have access to sound legal advice, and such advice can only be provided when the attorney is fully informed.(fn5) Furthermore, clients will only be willing to disclose all relevant information-particularly potentially incriminating or embarrassing information-if the client is confident that the information disclosed to the attorney will not be disclosed to others or used against the client in a criminal prosecution or civil litigation.(fn6)
While the attorney-client privilege is recognized in every jurisdiction in the United States, the precise contours of the privilege vary from jurisdiction to jurisdiction. Indeed, different privilege rules can apply in the same case, such as when federal claims are joined with state law claims in state court or pendant state claims are attached to federal question claims in federal court.(fn7) Because it is often impossible to know which jurisdiction's (or jurisdictions') privilege rules will apply in future litigation, the attorney may find it difficult to ensure that all communications will remain protected by the privilege.(fn8) The problem is rooted in the fact that the attorney-client privilege has always been governed by common law, state or federal rules of evidence. Because it has not been recognized as a constitutional right, the protection of the privilege is not guaranteed in any particular jurisdiction. Thus, there is no minimum level of protection upon which attorneys and clients may rely.
Such conflicts between jurisdictions and the related dilemmas are inevitable consequences of the American judicial system. But in the context of attorney-client communications, the conflicts can profoundly affect the relationship between attorneys and clients and the attorney's ability to provide competent legal advice.(fn9) The Supreme Court observed:
The far-reaching implications of having conflicting rules has prompted attempts to create a uniform set of privilege rules by enacting a preemptive federal statute, or by revising the choice of law rules to make it easier to predict which jurisdiction's law will apply, but such efforts have not yet been successful.(fn11) Consequently, alternate solutions and strategies should be explored. This Article proposes looking to an existing preemptive federal law: the Fourth Amendment to United States Constitution.
The Fourth Amendment protects against unreasonable government searches and seizures.(fn12) The protection extends to communications in which a person or entity has a legitimate and reasonable expectation of privacy that society is prepared to accept as reasonable.(fn13) Clients certainly have a legitimate and reasonable expectation of privacy in their confidential communications with their attorneys. Therefore, the Fourth Amendment protects those communications from unreasonable government intrusion, including unreasonable court orders compelling production of attorney-client communications.
This Article does not argue that the Fourth Amendment affords the same protection to all civil discovery requests, or even that it applies to all discovery requests.(fn14) The expectation of privacy in some types of non-privileged communications and documents may not meet the test for Fourth Amendment protection because either the litigant has no reasonable expectation of privacy or that expectation is not one that society is prepared to recognize as reasonable.(fn15) Instead, this Article argues that confidential attorney-client communications are different. Even-or perhaps especially-in the litigation context, parties have a reasonable expectation of privacy with respect to those communications, and society is prepared to recognize that expectation as reasonable. Thus, the Fourth Amendment applies and provides protection. When the Fourth Amendment applies, any court order compelling disclosure must be reasonable. Whether disclosure is reasonable in a given set of circumstances would be a constitutional question that must be decided consistently in all jurisdictions. That, in turn, would alleviate at least some of the uncertainty that currently plagues lawyers and clients.
This Article begins by focusing on the elements of a claim under the Fourth Amendment. Part II identifies the elements and subsequent sections address each element in the context of attorney-client communications. Specifically, Part III considers the legitimate expectation of privacy in confidential attorney-client communications. Part IV addresses the search and seizure requirement, explores authority distinguishing between "actual" and "constructive" searches, and concludes that in addition to actual searches, court-ordered production of attorney-client communications (a "constructive" search and seizure) can implicate the Fourth Amendment. Part V addresses the requirement of government action for a Fourth Amendment claim and analyzes the ways in which government action might exist in criminal and civil cases involving court-ordered disclosure or production of attorney-client communications. Part VI explores the reasonableness requirement of a Fourth Amendment claim and examines when an order compelling disclosure of an attorney-client communication can be unreasonable.
This Article then addresses how Fourth Amendment protection of attorney-client communications can resolve, or render moot, some of the problems created by conflicting privilege rules. Part VII identifies several circumstances in which jurisdictions' privilege rules are inconsistent and explains how Fourth Amendment protection of attorney-client communications in those circumstances could lead to consistent and predictable protection. Finally, Part VIII discusses why recognition of Fourth Amendment protection is a necessary and prudent means of protecting the reasonable expectation of privacy in attorney-client communications.
II. Fourth Amendment Requirements
While the attorney-client privilege is universally recognized in some form in all United States jurisdictions, whether by statute, rule of evidence, or under the common law, "it has not yet been held a constitutional right."(fn16) It is time to recognize that, in some instances, the Fourth Amendment protects attorney-client communications from court-ordered disclosure.
The Fourth Amendment to the United States Constitution states:
Unlike many cases assessing Fourth Amendment applicability, determining whether, and to what extent, the Fourth Amendment protects attorney-client communications requires careful analysis of each part of this test. First, the claimant must prove that he or she has a reasonable expectation of privacy in a communication with his or her attorney. The...
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