No other body of American jurisprudence is more a product of common-law development than the attorney-client privilege. In the 43 years since the U.S. Supreme Court decided Upjohn Co. v. United States, 449 U.S. 383 (1981), ruling that a corporation could invoke the attorney-client privilege, federal courts have seen an explosion of cases in which the privilege is asserted to preclude discovery of some document on the claim that it reflects the seeking or the giving of legal advice. In that time, the contours of the attorney-client privilege have been adjudicated and established on a case-by-case basis. Both its contours and guiding principles are now set.
The reported cases follow a standard, tedious, verbose, and predictable format. Basic principles of attorney-client privilege are set forth ad nauseam. Then the general principles are applied to detailed categories of documents whose characteristics are set forth in elaborate privilege logs. If an attorney knows what he or she is doing, those privilege logs generally are accompanied by affidavits that explain why the assertion of the privilege is valid. The reported cases have become so document-specific that they have little precedential value. Indeed, many of the cases are subject to citation rules stating that the decisions have no precedential value. Further doctrinal development of the contours of the privilege is no longer likely.
In January 2023, after hearing oral argument in a Ninth Circuit grand jury case under seal, the U.S. Supreme Court dismissed the grant of certiorari as improvidently granted. The question posed, in a nutshell: Was it sufficient that seeking or giving legal advice be a motivating factor or did it have to be the motivating factor to grant privilege protection to a document?
More than 45 years have elapsed since the Litigation Section published the first edition of a small booklet detailing the then-current contours of attorney-client privilege law in the federal courts. That booklet arose out of the 1979 American Bar Association’s annual meeting held in Hawaii. The Trial Evidence Committee presented a well-attended panel discussion devoted to the attorney-client privilege. The lawyers who attended were eager to hear about a then little-known and rarely used litigation phenomenon: asserting attorney-client privilege to preclude discovery of a document. The committee produced a white-covered loose-leaf notebook, describing issues raised in some 100 cases—the full corpus of the law of attorney-client privilege at the time in the federal courts. The notebook had a pen drawing of a man and a priest in a confessional—a metaphor for the secrecy or confidentiality in which attorney-client privilege communications were supposedly wrapped. That original loose-leaf notebook is now in its pending seventh edition, grown to two volumes exceeding 2,000 pages, to be published yet again by the Litigation Section of the American Bar Association.
An entire body of law has evolved, not to say has exploded, around and about the attorney-client privilege. Do a LEXIS search and you will find hundreds of decisions a month dealing with attorney-client privilege disputes in the federal courts. The privilege adjudication disease does not seem to have spread with like virulence in the state courts, which raises interesting anthropological questions about the difference attendant on litigation in the federal and state courts. Nor has it spread with the same degree of infection to work-product protection.
Periodically, lawyers fret that the protections of the attorney-client privilege are being eroded. That concern is not accurate. One thing has always been and remains indubitable: The attorney-client privilege protects far less than many practitioners and their clients mistakenly believe it does.
As one who has watched over the years this explosive development of attorney-client privilege law and the legal and judicial resources that adjudication of these issues devours, I cannot resist posing a challenge to the profession: Is all of this really necessary to protect the interests of corporate clients?
As the ancient Romans were wont to ask when considering a legal matter in dispute, qui bonum? Is all this review for privilege and litigation about the attorney-client privilege in the client’s real interests or in the interests of the lawyer? Litigating privilege issues is financially rewarding for lawyers, particularly those in large firms working on complex and costly litigated matters. Many newly minted young attorneys can be thrown into reviewing paper documents for privilege. The requisite privilege logs are time-consuming and exceedingly costly to produce even if the computer searches for the documents themselves are perhaps less so. So do all good intentions produce untoward results. And good intentions indeed initially surrounded the judicial creation of requisite privilege logs. These were initially devised by judicial decree and now are mandated by Rule 26(b)(5) of the Rules of Civil Procedure, without, however, the term “privilege log” ever being used therein.
Privilege logs do not obviate the need for in-camera review. Once upon a time, such review was a rare exception. Now failure to conduct one is just as likely to produce a rebuke by an appellate court that the trier of fact—whether magistrate judge or district court judge—has abused his or her discretion. And so are yet more judicial resources swallowed up in something that has grown not only like Jack’s beanstalk but perhaps like kudzu weed as well.
Now, don’t get me wrong. I think the privilege has a role to play in the criminal context. And practitioners claim it does in the civil context too, vehemently assuring one and all that to properly abide by the law, corporations too must be free to ask an attorney how to right illegal behavior that they discover or seek to avoid without fear that the attempt itself will become an admission against interest.
Nonetheless, there are times when I wonder if perhaps the Elizabethans, not we, had it right on the privilege. For them, it was the lawyer’s privilege and not the client’s. A lawyer was a gentleman, and a gentleman did not rat on his client. Thus, some cases, which allow lawyers to cut deals on their own behalf and thereafter testify against clients, are shocking. Yet, the courts have allowed it.
A case that surely shocks or should shock a self-respecting professional attorney’s conscience is United States v. White, 970 F.2d 328 (7th Cir. 1992) and 950 F.2d 426 (7th Cir. 1991). The prosecutor induced informal cooperation and grand jury testimony from the former bankruptcy counsel for two grand jury targets, the attorney’s former clients. The attorney had himself been convicted on a collateral matter. It was sentencing time. Afraid that he would be blamed for his clients’ failure to disclose assets on their bankruptcy petition, the lawyer agreed to cooperate with the prosecution, testifying against his clients in the grand jury.
The Seventh Circuit remanded the issue for a full evidentiary hearing on the clients’ claim that they had been convicted on the testimony of their former counsel out to save his own neck. After a full hearing, the district court concluded, and the Seventh Circuit agreed, that no violation of the privilege had occurred because the documents and information provided by the convicted attorney were conveyed to him by his clients with the intention of being placed on a bankruptcy petition in all events. Thus, the Seventh Circuit strictly and correctly applied the judicially developed law of privilege and ruled that no privilege had attached to the communications ab initio because the communications were never invested with the requisite intention of confidentiality. The clients were convicted of fraud when the attorney exculpated himself by turning over documents provided by his clients. Moreover, the government joined in the attorney’s motion to reduce the lawyer’s sentence, a bargain received in return for having turned in his clients.
Nonetheless, as the Seventh Circuit and Judge John Koeltl of the Southern District Court of New York have remarked, the attorney-client privilege is a testimonial, not a constitutional, privilege. Even a shocking violation of an attorney’s ethical obligations to the attorney’s client will not necessarily lead to a reversal of an otherwise valid conviction of the client. No poisoned fruit of a poisoned tree here. When the privilege is really essential, the moral may well be caveat client, lest you pick a co-crook for an attorney, because when the prosecutor comes calling, it is every man or woman to the lifeboats. Whoever reaches them first will be saved by tossing the newcomers overboard.
It may well be that the former clients in the White case sought an unavailable remedy: overturning their convictions. Query whether a claim for malpractice damages based on a breach of client confidence resulting in substantial harm to the clients by reason of their conviction for fraud might not, however, lie. A lawyer owes a client a duty of confidentiality under virtually all the ethical rules of the individual states that license lawyers. That duty is far broader and covers far more than does the privilege, however much lawyers may confound their duty of confidentiality to their clients with the separate question of whether a particular document is privilege-protected.
I once represented a lawyer sued for malpractice by his former clients because he wore a wire to record his drug supplier clients. His clients were convicted based on that wire, which was the brainchild of none other than famed novelist Scott Turow, when he was an assistant U.S. attorney in Chicago. And for that brilliant idea, the Seventh Circuit did chide him, while sustaining the convictions based thereon. The clients sued their lawyer for malpractice. The downstate Illinois state court judge who tried the malpractice claim did not dismiss it. He effected settlement instead, in his own inimitable way, by taking an entire day to rule in seriatim on one in limine motion after another, always sending the parties off to negotiate once again in light of how a particular ruling changed the chessboard and settlement calculus. The insurance carrier for the law firm in which my client had been a partner did have to pay the piper for the violation of the confidentiality he owed to his clients.
But how much is in fact left of the privilege after account is taken of all the situations for which privilege is claimed but does not apply or, if it applied when the document or communication was first made, has since been forfeited? Such forfeiture is inappropriately called “waiver.” Waiver connotes a knowing, intentional, and voluntary act. In the context of the attorney-client privilege, waiver happens by operation of the law and is virtually never knowing, intentional, or voluntary. How often do lawyers ask themselves or consult with clients as to whether the game of judicially blessed privilege protection is ever worth the strategic candle of what is being protected? Is what lawyers are so assiduously protecting and litigating until the cows have long since come home and been milked, fed, and stabled in fact worth all the effort and cost? Something has surely become quite disproportionate, although the remedy is not self-evident.
How many of those documents, so assiduously battled over, must in fact be kept confidential lest they harm the client? How little really needs protecting, other than the lawyer’s and management’s rear ends, is demonstrated by the alacrity with which parties are entering into “clawback” agreements. These contractual agreements, sanctioned by and often enshrined in court discovery orders, provide that forfeiture (waiver) of a privileged document will not occur if it is inadvertently produced.
Also, given the costs involved in conducting privilege reviews, some clients are choosing to conduct discovery without a privilege review, in the expectation that privileged documents will not be admissible as evidence even if produced.
I would suggest that lawyers are de facto answering my question with these clawback agreements. They are forgoing the fight about discovery and are instead engaging in a fight about a given document’s admissibility.
With it all, any objective observer cannot help but wonder at how extensive this type of “meta” litigation has become—namely, litigation not about the substance of a dispute but about ancillary matters—and further wonder whose purposes and interests most of this ancillary litigation serves.
Thus, I’d like to suggest a modest proposal:
Yes, it should be possible to litigate without the tail of privilege wagging the dog of discovery. Lest the purists shriek with horror at this modest proposal, remember that not too long ago, claims that some document was privilege-protected were few and far between in the federal and state courts.
If some of you think this is a dreadful idea, I’d love to hear from you as to why you think so.
