Law and Social Inquiry, Vol. 23, No. 2, 1998
Posted: 1 Feb 1999 Last revised: 3 Feb 2009
This article presents the primary justification for lawyer-client confidentiality. The foundation is an assumption that the primary function of the lawyer is to provide access to the law for the client. Law in this sense is broadly understood, meaning not just dispute resolution, but knowledge of substantive law and how it will be applied (procedure and enforcement), and law as structuring mechanisms for cooperation and planning. Lawyers cannot provide access to the law -- cannot determine which law is apposite and how it will apply -- until they know the facts of the client's situation. The client may well be reluctant to be candid concerning the facts, however, until she knows the legal consequences those facts entail. But before the lawyer can determine those consequences she still needs to know the underlying facts which the client may be afraid to reveal. This presents a difficult circle, and a significant barrier to the client learning the law which is relevant to her conduct, past or future. The principle of confidentiality breaks the circle, allowing the client to reveal the facts without substantial risk. From this perspective, confidentiality facilitates and encourages citizen (client) access to the law.
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