March 01, 2018 Feature

A Modest Proposal to Address the Costs of the Attorney-Client Privilege

Let's make all privilege-protected documents discoverable and adjuticate only whether they will be admissible into evidence.

Edna Selan Epstein

I doubt that there are cows more sacred than the attorney-client privilege. I also doubt that many other litigated matters clamor as repeatedly and as insistently for adjudication. I even doubt that any other adjudicated matter regularly devours more attorney time and judicial resources. And I doubt that all the resources spent on adjudicating and allegedly protecting that sacred cow are well spent. Hence a modest proposal: Make all privilege-protected documents discoverable. Adjudicate only whether any privilege-protected document will be admissible into evidence.

I can hear the howls of outrage. Clients will not trust their attorneys or the legal system if they believe that what they tell their lawyers and what their lawyers tell them won’t be held inviolable! Without the privilege, clients will not be truthful with their lawyers! Without the privilege, lawyers will not be able to advise their clients to conform their actions to the requirements of the law!

Without the privilege . . . Balderdash! These are knee-jerk reactions—not thought-out, evidence-based positions. It is a sure and certain indicator that it is a sacred cow we are dealing with when legal orthodoxy is substituted for practical experience.

Therefore consider: The privilege is not coextensive with client confidentiality. It is in fact merely an evidentiary ruling that a communication between an attorney and a client seeking legal advice will not be admissible into evidence, absent waiver and other limited exemptions. Further, it is a ruling that a particular communication (in most cases, a document rather than a verbal communication) fits the very narrow parameters of a privilege-protected communication. (See Edna Selan Epstein, The Attorney-Client Privilege and Work-Product Doctrine (6th ed. 2017)). But note well that, at heart, the attorney-client privilege is in fact an evidentiary principle. It is just that modern jurisprudence has shifted the fight from the admissibility to the discovery phase of litigation. In its wake come pitched and very costly battles over what are all too often benign communications, not in the least harmful to the client if revealed or even relevant to the matters in dispute.

It was not always thus. Indeed, questions about whether an attorney-client communication was or was not privilege-protected were rare in the reported cases before the Supreme Court’s ruling in Upjohn Co. v. United States, 449 U.S. 383 (1981). Does that mean that before Upjohn, clients did not dare confide in their attorneys? Hardly. One might even suggest that the reverse may be the case.

Consider also: In most of continental Europe, professional secrecy is not accorded to in-house counsel. Those lawyers are deemed to lack the “independence” that is a prerequisite to the attachment of principles underlying client secrecy. Nor does professional secrecy extend either on the continent or in Great Britain to anyone outside a fairly limited “control” group of boards of directors and top management. Does that mean that in those countries, clients dare not confide in lawyers and that lawyers hesitate to advise their clients as to how to conform their behavior to the law’s expectations? Hardly. One might even suggest that there, too, the reverse may be the case. Perhaps clients in the United States in recent years are at least as likely to seek legal advice on how to avoid the strictures of the law as they are in other “Western democracies.”

Claw-Back Agreements

Consider even: “Claw back” agreements can now commonly be entered into to govern discovery of attorney-client privileged documents. See generally Fed. R. Evid. 502 (2008 amendments). Intentional disclosure (Rule 502(a)) or inadvertent disclosure (Rule 502(b)) need no longer entail an automatic waiver and attendant loss of privilege protection. Some courts still apply a fairly stringent analysis of what constitutes a reasonable effort to protect the privilege so that no waiver will be deemed to have occurred. Nonetheless, by virtue of the operation of Rule 502, even though the proverbial bell can’t be unrung and the substance of the attorney-client communication is out of the proverbial bag forever, the physical document can be retrieved by the inadvertently producing party and the substance of the privileged communication can be kept out of evidence. Rule 502(d) provides for the entry of judicial orders to retrieve the document and maintain the privilege protection, and Rule 502(e) governs such agreements between parties, which provide protection between themselves but are ineffective against third parties, hence the advisability of having a judicial stamp of approval.

Claw-back agreements are in fact insurance policies against attorney carelessness. But they do imply that privileged documents are not in fact as sacrosanct as the profession likes to imagine or to pretend they are. Were they indeed sacrosanct, any violation would necessarily result in desacralization and loss of the privilege. But it does not. Although attorney-client communications have been revealed, the veil of privilege protection can nonetheless be drawn over the document again. (But you could also say the opposite as we go to great lengths to preserve the privilege even when parties are careless.)

The point of analogizing my proposal to existing claw-back agreements is that a rule-based structure already exists to ground my modest proposal. Make all privilege-protected documents discoverable. Fight only about whether they are admissible into evidence.

Privilege Logs

How many associate hours are now billed to clients in preparing privilege logs? How often are they prepared in a fashion that accurately reflects what is genuinely privilege-protected? How many attorneys even know or, if they know, care that the privilege does not insulate the discovery of facts? How many attorneys know that using an attorney as the conduit of business communications among management does not make such communications privilege-protected? How many attorneys know that sending a document through or to an attorney does not make it privilege-protected? How many attorneys know that putting boilerplate language on each and every document claiming it to be privilege-protected does not make it so? Or if they do know the answer to these questions, why in the world do they go through such worthless charades?

My proposal would or should put an end to what has become a cottage industry in litigation. And, surely, attorneys, protective of so lucrative a source of revenue, can be expected to howl against any suggestion that such a sacred cow deserves to be slaughtered. People have endless founts of self-delusion when their self-interest is at stake. Lawyers—being people, after all—can endlessly claim that what is in their self-interest is also to their clients’ benefit.

Let’s be honest. We have totally lost sight of the forest of client confidentiality as we wander lost among the privilege-protected trees. It is the terror of inadvertent subject matter waiver that fuels the desire to protect what almost always will be of no harm if disclosed. Most documents, even if genuinely privilege-protected, are by their content rarely harmful to the client if revealed. The more frequent case is surely the contrary. “See, I was trying to conform my behavior to the law’s requirements.”

So how many untold hours are spent protecting that which revealed would in no way hurt a client’s ultimate cause? Indeed, it is more than likely that the privilege-protected document may well be beneficial to the client if revealed. It is potential embarrassment to the litigating attorney and the fear of general waiver that are often the driving engines behind many of the hotly fought privilege skirmishes and the lack of a substantive understanding of just how little the privilege in fact protects because it is not in the least coextensive with client confidentiality. Rarely is it the substance of what will be disclosed that matters one whit.

If privilege logs are such a worthy endeavor in protecting the privilege, why is it that the courts seem to routinely loathe them? Why do they find privilege logs to be so often useless? Why have many courts taken to routinely reviewing in camera all documents claimed to be privileged if they are not too numerous? And if the documents are numerous, why do courts randomly test a sample of them for privilege or, if the case warrants, appoint expensive special masters? When the privilege was taken seriously, it meant even judges should not willy-nilly be able to see or hear the privileged communication.

How would my suggestion that claw-back agreements become the default option for the production of any and all privilege-protected documents work in practice?

Most federal courts already require pretrial orders that identify which documents will be admitted into evidence. (See, e.g., N.D. Ill. R. 16.1.1, Final Pretrial Order Form of the Northern District of Illinois). Rebuttal documents do not need to be identified. Should one side wish to use a privilege-protected document in rebuttal, an in limine motion to do so could be filed, allowing for an admissibility ruling by the court, prior to such rebuttal use.

By such a proceeding, the far fewer and rarer privilege-protected documents that prove either probative or relevant would have to be so identified—if necessary, under seal and by way of an in limine motion—and permission would have to be sought from the court to have them admitted. The party claiming privilege could at that point object to the document’s admissibility based on privilege. The structure of the resolution of the dispute over privilege would be no different than it is now. It just would have moved from the discovery stage to the admissibility stage of the proceedings. Such a shift would ensure far greater efficiency and less dissipation of attorney and adjudicatory resources by winnowing down the possible universe of privilege-protected documents to a very few that are either relevant or probative. It would be ever so much less costly to the client. The same protections against disclosure to the world at large—in camera review and filing under seal—would apply.

Focusing on What Really Matters

Besides the evident economic advantages of avoiding the cost of disputes to adjudicate whether a thoroughly irrelevant document is privilege-protected, the disputes would be focused on what in fact matters and what is in dispute: Does a particular document that one side wants to introduce into evidence warrant protection under the principles of attorney-client privilege?

Other than the cost advantages, would other benefits flow from such a shift of disputes over discoverability to disputes over admissibility? Because all documents would be produced, each side would no longer be highlighting and signaling which documents they are uncomfortable about disclosing. Documents that are neither probative nor relevant, even if privilege-protected, would no longer be a costly battleground.

If you are still not convinced, think of what happens when attorneys are deposed or put on the stand. What was once a rare event has become quite common. All sorts of foundational questions can be answered. If the attorney wears two hats—both in a business and in a legal capacity—the attorney can be and is compelled to answer questions of a business nature. Virtually the only impermissible question is, “What legal advice did you give your client?”

What other consequences would flow from moving the battleground of privilege protection from the discovery phase to the phase in which the underlying dispute is adjudicated?

Lawyers might become less inclined on some occasions to put their advice into writing. They might call for a meeting or telephone conference instead. But because lawyers frequently put things into writing at least as much for their own protection as for that of the client, it is hard to predict that less reliance on the written word over the spoken word would in fact result. It is also hard to predict whether that would be a good or a bad thing in general—and what goal would it be based on? Ensuring that the client conforms his or her conduct to the requirements of the law?

Given the fact that the modern world works not orally but by documenting everything in writing, fights about whether a given document is privilege-protected would indeed continue. They just would now focus on the few documents that may be relevant to the underlying dispute rather than on a broad universe of documents that are not.

No longer would an exasperated judiciary have to tussle with the fruitless argument that because some written document was sent to a lawyer, it was therefore automatically invested with the privilege.

No longer would inadequate privilege logs, detested by lawyers and found woefully inadequate by most judges, become the gravamen of endless motions leading nowhere.

Perhaps most significantly, the now-inevitable fights about whether substantively irrelevant documents are or are not privilege-protected would fall by the wayside. Instead of fights about thousands of documents, which in some large cases assume a life of their own, the fights would be about documents that arguably might make a difference in the adjudication of the underlying dispute.

This modest proposal is intended to spark discussion and encourage experimentation within the profession and by judges as to whether more cost-efficient means might not exist to adjudicate and preserve the privilege.

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Edna Selan Epstein

The author, an associate editor of Litigation, is the author of Attorney-Client Privilege and the Work-Product Doctrine, Sixth Edition (ABA 2017).