The Purposes of Advocacy and the Limits of Confidentiality

Abstract

T HE privilege of confidentiality between lawyer and client is a significant barrier to the search for truth and the attainment of justice. Since bankers, accountants, psychiatrists, and confessors are not entitled at common law to confidentiality in their relationships with those with whom they deal, one may well inquire why lawyers possess such an extraordinary privilege. In the early English case which established the lawyer-client privilege, counsel offered several justifications: (1) A gentleman of does not disclose his client's secrets. (2) An attorney identifies himself with his client, and it would be contrary to the rules of natural justice and equity for an individual to betray himself. (3) Attorneys are necessary for the conduct of business, and business would be destroyed if attorneys were to disclose their communications with their clients.' None of the above justifications seems very persuasive today. Gentlemen of character have no legally recognized immunity from testifying about their friends' secrets. The identification of lawyer and client is, at best, only a metaphor, indicating an underlying policy justification for the privilege. Finally, attorneys are no more essential to the conduct of general business than are accountants, bankers, and secretaries, who do not enjoy the privilege. The suspicion arises that the legal profession has carved out for itself a privilege which it is reluctant to grant to other equally necessary and honorable men merely because the privilege is good for the legal business. However, the secrecy of information communicated by a client to a lawyer may have a more rational justification than those discussed above when the information is divulged in preparation for a trial. The purpose of employing a trial lawyer is to assert one's rights in a lawsuit; this purpose might be defeated if a relevant secret were available to one side merely by calling the opposing counsel to testify. Therefore, if the essential function of lawyers is to conduct trials, they must be able to receive relevant information and keep it confidential. To say that a lawyer's function is to conduct a trial, however, does not suffice, for one must inquire into the purposes of a trial