Harmonizing Privilege and Confidentiality

Abstract

This Article focuses on the interplay between attorney-client privilege and attorney-client confidentiality. Contrasting academia's traditional preoccupation with confidentiality issues, the Article highlights the relative importance of privilege issues for clients; typically, clients' real-world problems have less to do with confidentiality than with privilege -- or, more particularly, with the interplay between privilege and confidentiality. These problems ordinarily stem from questions about the scope of privilege and the failure of lawyers and judges to distinguish privilege from confidentiality in key situations. Focusing on these issues, the Article identifies some alternatives that the ABA or individual jurisdictions might take to harmonizing legislatively the two secrecy principles.