Attorney-Client Privilege: Privilege or Right

The current news is filled with reports of people who are being called to testify before Congress and have declined to answer questions, asserting the attorney-client privilege. Subpoenaed witnesses have vigorously claimed this privilege in response to lawmakers’ inquiries. Who is right: Congress or the Respondent?

Unlike the Fifth Amendment’s privilege against self-incrimination, the attorney-client privilege is not identified in the Constitution, mentioned, or even contemplated. So, what is this legal tool that can shield and protect? The attorney-client privilege is very old. In the 1650s, the first cases of English common law were noted which indicated the existence of an attorney-client privilege. In those early cases, the client did not assert the privilege; rather, the attorney did so. It was considered a matter of the attorney’s honor to decline to reveal client confidences. Later cases refined the privilege, and by the 1830s, attorney-client privilege was recognized as protecting confidential communications between the lawyer and client, including matters where imminent litigation was not involved. In a 1981 case, Upjohn v. United States, the Supreme Court explained that the privilege is supposed to encourage clients to make “full and frank” disclosures to their attorneys, who can then better provide candid advice and effective representation. This, the Court said, will serve the “broader public interests in the observance of law and administration of justice.” In the 1998 case, Swidler v. Berlin, the Supreme Court determined that the privilege survives the death of the client. Note that the privilege pertains only to confidential communications between the attorney and the client. It does not shield communications between family members or other people, even if you tell your father what you and your lawyer discussed; if you review your attorney’s conversations with your best friend; if you bring your mother up-to-date on your lawyer’s thoughts, then you have likely waived the privilege, and those other people can be compelled to testify about what you said. If you do not treat your communications with your lawyer as confidential, the court will not support the privilege. Finally, simply wanting a communication to be confidential does not give it that quality. Unless the communication is actually a confidential attorney-client communication, it does not fall within the privilege. So, witnesses cannot properly assert the privilege in response to questioning if a lawyer just happened to be in the room during conversations. Nevertheless, a client cannot protect certain facts from disclosure simply by communicating them to her lawyer. If information may be gathered from another source besides the privileged communication, then the underlying information itself is not privileged. Stated differently, the attorney-client privilege protects communications made to obtain legal advice; it does not protect the information communicated. Clients and attorneys alike must bear this important fact in mind: merely conveying something to an attorney will not prevent the underlying facts from compelled disclosure, if they can be discovered from a non-privileged source.

The factual circumstances surrounding the communications between an attorney and a client, such as the date of the communication and the identity of persons copied on correspondence are, likewise, not privileged. Participants in a meeting with an attorney, the length of a consultation and the documents evidencing same, (e.g., calendars, appointment books), are not necessarily protected from compelled disclosure. Edna Selan Epstein, THE ATTORNEY-CLIENT PRIVILEGE AND THE WORK-PRODUCT DOCTRINE 2 (4th ed. 2001)

As for the fee arrangement between an attorney and a client, these documents are typically discoverable, except where such discovery would produce confidential communications with the client. United States v. Keystone Sanitation Co., 885 F. Supp 672, 675 (M.D. Pa. 1994).

What can Congress or the Courts do if a witness improperly asserts a privilege or just declines to answer? There is a remedy: Congress and the Courts have the power to hold a person in contempt. Contempt of Congress is not often used, but it can convey a powerful message.

Contempt of Court, however, is routinely used to coerce testimony the Court has found not to be protected by the Attorney-Client privilege.

Although there is no single authority on the attorney-client privilege, one federal judge opined that “[t]he privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.” United States v. United Shoe Mach. Corp., 89 F. Supp. 357, 358-59 (D. Mass. 1950

In 1974, G. Gordon Liddy was found guilty of two counts of Contempt of Congress for refusing to be sworn in, and for refusing to testify before a Special Subcommittee on Intelligence. At the time, the Subcommittee was investigating something that we now simply call Watergate. Supreme Court Justice Louis Brandeis once said, “Behind every argument is someone’s ignorance.” Ignorance of the parameters of the attorney-client privilege can result in the introduction of evidence that should have been protected. Alternatively, it can lead to the suppression of important testimony that should have been admitted.