American University Law Review, Vol. 52, p. 59, 2002
113 Pages Posted: 9 Mar 2007
The attorney-client privilege is in disarray. This Article traces why the doctrinal confusion is deeper and more widespread than most realize and proposes a radical reform - federalizing the privilege.
Attorney-client privilege law varies greatly from state to state, federal circuit to federal circuit, and context to context, and its application is often unclear within particular jurisdictions. Most strikingly, the conflicts and ambiguities are not relegated to the margins. Issues lying at the heart of privilege doctrine - including the requirements of confidentiality, the parameters of the corporate privilege, and the scope of the crime-fraud exemption - are disputed or unresolved. Inadequate choice-of-law principles and the growth of national litigation and nonjudicial fora simply exacerbate the law's unpredictability. This Article demonstrates why such uncertainty is intolerable: an uncertain privilege inhibits access to the truth and creates enormous transaction costs while failing to enhance attorney-client communication and candor. Other reformers propose changes to address particular aspects of the existing uncertainty, but fail to offer holistic solutions.
To resolve both lingering conflicts between jurisdictions and confusion within jurisdictions, we need a national, codified approach. Congress should federalize the law of privilege preemptively, creating uniform protection for client confidences that will apply in every proceeding in federal and state court, and in arbitration hearings, agency adjudications, and legislative proceedings. Federal privilege legislation that provides clear, unqualified, and generally applicable privilege protections will produce a level of certainty sufficient to reap the potential benefits of the privilege while ultimately lowering its transaction costs. This Article concludes that Congress has both the capacity and constitutional power to enact this needed reform.
Keywords: evidentiary privilege, attorney-client privilege, attorney-client communication, corporate privilege, privilege waiver, legal advice, rules of evidence, preemption, crime-fraud exception, client confidence, confidentiality, interstate commerce, commerce clause, work product doctrine, privileges
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