Jeremy Bentham, Rationale of Judicial Evidence (1827)
Casebook, p. 528
1
Bentham opposed the attorney client privilege. He ridiculed the
argument that if attorney-client confidences are not protected from
disclosure, society will suffer because those confidences will not
be reposed:
“Not reposed? --Well: and if it be not, wherein will consist the mischief? The
man by the supposition is guilty, and if not, by the supposition there is nothing
to betray; let the law advisor say everything he has heard . . . . The client
cannot have anything to fear from it.”
Accordingly, he argued, the only consequence of abolishing the
privilege would be “That a guilty person will not in general be able
to derive quite so much assistance from his law advisor, in the
way of concerting a false defense, as he may do at present.”
Casebook, p. 528
Question: Was Bentham right?
2
Arguments against Bentham:
• The client with a good cause may still have something to
hide
• If clients didn’t tell their lawyers all the facts, settlement
will be more difficult
• It will also be harder for the attorney to guide future
conduct
• Were the privilege to be abolished, unethical attorneys
would have an advantage.
3
Jeremy Bentham today
4
Capsule definition, attorney client privilege
(Compare Woodruff case, p. 528)
Confidential communications between attorney and client
(or their representatives) made in the course of the
professional relationship are privileged.
5
Confidential communications between attorney and client
(or their representatives) made in the course of the
professional relationship are privileged.
6
Confidential communications between attorney and client
(or their representatives) made in the course of the
professional relationship are privileged.
7
Confidential communications between attorney and client
(or their representatives) made in the course of the
professional relationship are privileged.
8
Confidential communications between attorney and client
(or their representatives) made in the course of the
professional relationship are privileged.
9
Which of the following interviews would produce
communications that would be protected by the privilege?
1. Assuring him of
confidentiality, the attorney
interviews a bystander who
saw the accident that led to
the client’s lawsuit.
2. The attorney interviews the
client in front of a stranger
3. The attorney interviews the
client in front of the attorney’s
law clerk
4. None of the above.
10
Hypo. The attorney’s client becomes a fugitive. The
prosecutor calls the attorney for testimony before the grand
jury and asks him for a description of the client, including any
scars that the client has shown the attorney.
1. Privileged
2. Not privileged
3. It depends
11
Hypo. The client sends the attorney business records that
are relevant to the litigation. A cover letter from the client
says “here are the records of the questionable payments.”
The other side seeks to discover the records and the letter.
1. Privileged
2. Not privileged
3. Privileged in part.
12
United States v. Woodruff, p. 528
E.D. Pa., 1974
13
Upjohn Co. v. United States, p. 531.
United States Supreme Court, 1981
I have studied this case in another law school course.
1. True
2. False
14
Upjohn Co. v. United States, p. 531.
United States Supreme Court, 1981
• Did the Supreme Court reject the control group test?
• Why? What was wrong with the control group test?
15
Hypo. You the personnel director for Acme Corp., whose
general counsel interviews you in confidence about
possible employment discrimination in your division. Will
your communications to him be protected by the attorney-
client privilege if you are sued?
1. Yes
2. No
3. It depends.
16
Hypo. The bookkeeper for Acme Corp. looks out the
window and sees an Acme truck hit a pedestrian. He is later
interviewed in confidence by corporate counsel about what
he saw. Are the communications made during the interview
privileged if the corporation invokes the privilege?
1. Yes
2. No
3. It depends.
17
You are the corporate counsel for Acme Corp. You want to
initiate an internal investigation to find out whether it’s true
that Acme has been practicing age discrimination. You plan
to start with a survey to be sent to division heads. You want
the information collected in the survey to be covered by the
attorney-client privilege.
Question:
What do you put in the cover letter that goes with the
survey?
18
Hypo. You want your client to take a polygraph test.
You don’t want the communications made during the
test to be discoverable. There is no polygrapher-client
privilege. Is there any chance you can protect the
communications from discovery?
19
City and County of San Francisco v. Superior Court, p. 537.
Supreme Court of California, 1951.
• Question. Why weren’t the communications in the City &
County of San Francisco case covered by the doctor-
patient privilege?
• See p. 539, bottom: “Since there was no physician-
patient relationship, there was no physician-patient
privilege to waive . . . .”
20
Clark v. State, p. 540
Texas Court of Criminal Appeals, 1953
• Original holding: Eavesdroppers may testify about
attorney-client confidences.
• Precedent: Hoy v. Morris, a case in which attorney and
client were overheard by someone in an adjoining room.
• Question: Is Clark v. State distinguishable from Hoy v.
Morris?
21
See Park, Leonard, & Goldberg, Evidence 439 (2d Ed.
2004):
Recent authority indicates that the privilege is not lost if
“reasonable precautions” have been taken to keep the
conversation confidential.
Compare CEC § 952, p. 1241:
A lawyer-client communication retains its privileged status if
it is transmitted by a means that “so far as the client is
aware” discloses the information to no third person.
22
Clark v. State, p. 540
Texas Court of Criminal Appeals, 1953
Second holding (after rehearing): The attorney-client
privilege does not apply to one who “takes counsel on
how he can safely commit a crime.”
23
Hypo: A client calls his attorney and confesses to tax fraud.
The attorney says, “destroy all your records.” On these facts
alone, the door is open for an eavesdropper to testify about
the client’s confession.
1. True
2. False
24
See Clark v. State, p. 544:
“The murder weapon was not found. The evidence
indicates that appellant disposed of it as advised in the
telephone conversation.”
25
Compare Restatement § 82, p. 544
The crime-fraud exception applies when the client --
(a) consults the attorney for the purpose of getting aid in
committing a crime or fraud, and the purpose is
accomplished; or
(b) Regardless of the client’s purpose, uses the advice to
commit crime or fraud.
Explanation, p. 546:
(a) If the lawyer talks the client out of the illegal conduct,
the privilege still applies.
(b) If the client does not intend to commit crime or fraud,
the client is protected even if the lawyer gives illegal
advice, so long as the client does not take the advice.
26
A vexing issue: whether the judge should be allowed to
examine communications made in confidence in order to
decide whether the communication was made in
furtherance of crime or fraud.
27
CEC § 915 (a), p. 1238
This provision prohibits requiring disclosure of information
claimed to be privileged for purposes of ruling on a claim
of privilege. Read literally, it would seem to prohibit the
judge from examining allegedly privileged material in the
course of deciding whether the crime-fraud exception
applies.
28
United States v. Zolin, p. 548
United States Supreme Court, 1989
29
Under Zolin, a lesser evidentiary showing is needed to
trigger in camera review than is required ultimately to
overcome the privilege.
1. True
2. False
30
Hypo. Plaintiff claims that defendant and his lawyer plotted together to
commit securities fraud. The plaintiff wants the judge to order
defendant’s lawyer to turn over documents containing confidential client
communications for in camera review by the judge. The judge should
order in camera review only if she is persuaded by a preponderance of
the evidence that the documents contain communications in furtherance
of fraud.
1. True
2. False
31
Zolin, p. 550 (top):
The judge should require the showing of a “factual basis
adequate to support a good faith belief by a reasonable
person” that in camera review of the materials “may
reveal evidence to establish the claim that the crime-
fraud exception applies.”
32
Hypo. Under Zolin, a judge reviews the lawfully obtained evidence
submitted to her. She decides that a reasonable person could have a
good faith belief that other confidential lawyer-client communications
that she has not yet seen were made in furtherance of crime or fraud.
These communications are in the possession of the opposing party. The
party seeking to penetrate the privilege asks her to review these
communications in camera. She has discretion to refuse to do so.
1. True
2. False
33
Zolin, p. 550 (2d paragraph)
Once the showing has been made, the judge has discretion
whether to review the materials.
Among the considerations:
How voluminous?
How important to the case?
34
Swidler & Berlin v. United States, p. 551
United States Supreme Court, 1998
• Does the attorney-client privilege survive the death of the
client?
• Is the decision sound as a matter of policy?
• How are the inheritance cases different?
35
• The end
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