Rethinking Attorney-Client Privilege

Abstract

Words matter. This is particularly true in the legal profession, where the common-law system dictates that from the opinions of judges, stems the edict of law. With the written word of judicial decisions carrying such weight, courts must take care to ensure their rulings are adequately justified and penned in a manner that provides sufficient notice as to what acts or omissions are legal. Nowhere is this more necessary than in cases where government and corporate officials, who often wield vast spheres of influence, attempt to invoke one of the oldest and most frequently discussed topics of legal scholarship—the attorney-client privilege. In spite of more than four-hundred years of judicial history and countless law-review articles establishing the privilege as part of the very foundation of the practice of law, courts continue to struggle with its application to corporate and government entities. The resulting opinions are inconsistent and often so void of reasoning that corporate executives, government officials, and their attorneys are without sufficient notice as to what communications are protected from disclosure. The current circuit split on this issue, combined with President Donald Trump’s recent invocations of the privilege, have only fueled the need for clarity on a law seemingly as well known to the general public as to members of the bar. This Article is the first to examine the perspectives employed by courts in entity-privilege cases to answer a question more than four-hundred years in the making: based upon the competing perspectives utilized by courts in entity- privilege cases, how should the attorney-client privilege apply to government agencies and corporations? I employ an interdisciplinary approach, using illustrative modeling to reveal the analytical perspectives developed by courts in these difficult cases. The result is data that upends a previously accepted legal doctrine characterizing the interactions among attorneys, agents, and entities as being triangular in nature. My analysis uncovers how judicial opinions in entity-privilege cases operate far differently in practice than theory, which has only fueled confusion as to what communications are protected from disclosure. Equipped with a better understanding of how judges arrive at their decisions in these cases, I “rethink” attorney-client privilege by drawing from established principles of agency law to develop a rule that furthers the privilege’s goal of fostering candid conversations between clients and their attorneys. Lastly, I apply the proposed rule in a test suite involving two of the most well-known entity-privilege cases to measure the rule’s practical applicability. After observing its effectiveness, I conclude by summarizing this rethinking of attorney-client privilege and noting the rule’s promise in light of current events and the divide amongst courts on this issue.