March 01, 2018 Feature

A Judge Comments

A judge thinks the positives of the current privilege system far outweigh the negatives.

Hon. Young B. Kim

The title of Edna Epstein’s essay brings to mind another infamously named “modest proposal” that had dire implications for the Irish. Epstein no doubt drew at least some inspiration from Jonathan Swift’s satirical 18th-century essay suggesting that impoverished Irish families could sell their infants to be served up as a culinary delicacy for the wealthy.

If Epstein intended to pay homage to Swift’s work with her own satirical proposal for discarding attorney-client privilege as we know it, then she accomplished her mission. But if her proposal is more sincere than satire, I would be remiss not to point out its irony. Epstein’s proposal presumes that privilege is merely an evidentiary ruling and dismisses a client’s real interest in being heard candidly and privately by an attorney. But much like Swift’s satirical proposal, Epstein’s approach elevates cold efficiency and cost reduction at the expense of a client’s human interest in confidentiality. At bottom, the attorney-client privilege exists for the protection of the client, not lawyers, the judiciary, or resources. And while some individual communications may not harm the client if revealed, there is more to privilege than the mere admissibility of evidence. Without privilege, true confidentiality cannot exist.

The question then is whether the costs of the attorney-client privilege are justified by the open communication and mutual trust it makes possible. I believe the answer is yes. As the U.S. Supreme Court recognized in Trammel v. United States, 445 U.S. 40, 51 (1980), privilege is “rooted in the imperative need for confidence and trust.” Just as a physician must know “all that a patient can articulate” to treat disease, even seemingly minor barriers to a client’s disclosure of information prevent the client from receiving the full measure of attorney representation. And far from being sacrificial lambs on the altar of privilege, attorneys also benefit (beyond added billable hours) from receiving information that enables them to give informed advice. In other words, the mutual trust the attorney-client privilege makes possible is a fundamental underpinning of the lawyer’s ability to advise and advocate for a client.

If we have in fact lost sight of the forest of client confidentiality for the privileged trees, as Epstein contends, the answer isn’t to raze the forest. Much of the inefficiency Epstein highlights can be remedied with improved training for new attorneys. None can dispute that creating and reviewing privilege logs can be labor-intensive and costly. But that is an argument for better use of the existing process, not eliminating or truncating it. And Epstein’s proposal ignores that ultimately it’s the client, not the lawyer, who controls the privilege. If a client finds that the cost of paying a lawyer to submit privilege logs outweighs the benefits of maintaining the privilege, then the client is free to direct the lawyer to waive the privilege and disclose the documents. Or if a privileged document could actually help prove a client’s claims, the client can choose to disclose it. Those are decisions the client controls. But Epstein’s proposal advocating universal disclosure would wrest all agency from the client without evidence that clients generally are unwilling to bear the costs of asserting the privilege. That shift in dynamics could be especially harmful to attorneys’ long-standing relationships with institutional clients because those relationships are likely to yield higher volumes of privileged communications, the exposure of which could erode the trust foundation on which such relationships are built.

Epstein points to the existence of claw-back agreements to argue that privileged information is not as sacrosanct as we pretend it is. But as she points out, lawyers are after all human and make mistakes. In many instances, attorneys are tasked with reviewing thousands of documents under immense time pressure. Rather than diminishing the value of privileged documents, claw-back agreements address the unavoidable reality of human error and reflect a mutual understanding of how crucial it is to protect the client’s interest in the privilege from the fallout from such errors.

As for the burden privilege imposes on the judiciary, in my own experience as a judge, adjudicating attorney-client privilege disputes has not been the millstone Epstein portrays it to be. By my count, in the past eight years I have addressed the issue of attorney-client privilege fewer than 10 times a year on average. And while I can only speak for myself, I think many judges would agree that the far greater challenge lies in resolving disputes about the proper scope of discovery in an age when overwhelming amounts of data are being generated and stored. Even so, the 2015 amendment to Federal Rule of Civil Procedure 26 already aids in winnowing down the universe of privilege-protected documents to those that are both relevant and proportional—without the drastic measures Epstein proposes.

Complex problems sometimes require bold solutions, and conversations about how to improve the profession’s approach to privilege are valuable and timely. Epstein’s “modest proposal” certainly furthers that end in sparking discussion about how best to adjudicate privilege. But in the Swiftian spirit, the answer to that question should be dictated by the human interest of the clients.

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Hon. Young B. Kim

The author is a magistrate judge with the Northern District of Illinois in Chicago.