On Attorney-client privilege

Justice is the quality of being just or fair, as well as the maintenance of this quality.

A key factor in adjudicating what is fair or just, would be the ascertainment of truth. Even as some hold that truths are subjective, such subjective truths even, if available to the adjudicator, would increase the odds of a fairer adjudication.

Attorney-client privilege in simple terms renders truths divulged to an attorney by a client to be inadmissible in court. This privilege allows a client, even when culpable, to be honest with the attorney, and for the attorney to advice the client on the optimal course of action. It increases the value added by the attorney. One downside might be that if the attorney is unscrupulous, it increases their leverage over the client. There is also the risk of unintended disclosure or leaks, which can be detrimental to the client’s interest even if the specific information is privileged and inadmissible in court since the opposite side, or an overzealous DA might use this information indirectly to uncover additional unfavorable evidence and such.

While the benefits to the client and the risks are somewhat clear, it is not clear how this privilege serves the interest of justice, since this might imposes a disadvantage to the opposite party. This effect is obviously more problematic in criminal trials, where there is a clear public interest. Further, given the adversarial nature of litigation, the sum of advantage to clients across all cases must be close to zero, and if weighted for the likelihood that it might be used for protecting the guilty more often than saving the innocent, it is negative.

Since the public, and a majority of the clients would only reap the adverse effects, one must wonder why this privilege continues. In long running, yet seemingly irrational and unfair arrangements such as this, it is worthwhile to consider perverse incentives or conflicts of interest. Attorney-client privilege increase the value and leverage for lawyers, and this can translate to higher fees, at the minimum.

On Attorney-client privilege

Further Reading