One Privilege to Rule Them All? Some Post-Sarbanes Oxley and Other Reflections on a Federally Codified Attorney-Client Privilege
58 Pages Posted: 9 Mar 2007
This article builds on my previous work, Federalizing Privilege, further elaborating why Congress should federalize the law of the attorney-client privilege. This proposed uniform, preemptive protection for client confidences would apply in every proceeding in federal and state court, and in arbitration hearings, agency adjudications, and legislative proceedings. As a second-best alternative, Congress should codify attorney-client privilege law for all federal question and federal criminal cases, as well as non-judicial proceedings involving federal matters.
This piece bolsters claims made in Federalizing Privilege in two ways. It responds to a number of concerns about codification, explaining why a codified attorney-client privilege will not inappropriately inhibit doctrinal development, will avoid the pitfalls of the federal rule-making process, and is the best approach to achieving an appropriate balance between competing policies. It also discusses recent developments that further evince the need for national privilege reform, most notably, the shift in the regulatory landscape embodied in the Sarbanes-Oxley Act of 2002. In addition, the article examines how other recent developments, including increased prosecutorial aggressiveness, are producing creeping, piecemeal, and often unmonitored erosions of the privilege. Voluntary changes to such prosecutorial practices -- which are both piecemeal and tenuous -- are insufficient responses to a problem needing a holistic solution.
Keywords: evidentiary privilege, attorney-client privilege, privileges, rule of evidence, codification, federal codification, federal preemption, Sarbanes-Oxley, gatekeeper, Thompson Memorandum, Section 307, Advisory Committee, corporate privilege, confidentiality, up-the-ladder, attorney disclosure
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