NCJ Number
78175
Journal
Iowa Law Review Volume: 66 Issue: 4 Dated: (May 1981) Pages: 811-841
Date Published
1981
Length
31 pages
Annotation
This article focuses on questions regarding communications falling within the attorney-client privilege and suggests tentative resolutions.
Abstract
The attorney-client privilege has been widely accepted in American jurisdictions for many years. However, questions have arisen as a result of the proposed but unenacted rule 503 of the Federal Rule of Evidence. Specifically, the question of what qualifies as a protected confidential communication when information is supplied privately to counsel by a client who plainly seeks legal advice needs to be addressed. Courts have held certain information and evidence to be outside the scope of privileged confidential communications. The privilege does not extend to what third parties tell the lawyer and is confined to communications made in the course of seeking legal advice. The article suggests that the privilege is properly restricted to new communications. Privilege may not cover information transmitted in confidence from client to attorney that may be viewed as normal incidents of the relationship. This information includes the identity of the client, address, existence of an attorney-client relationship, and fee arrangements. Communications involving evidence obtained from clients present problems of much greater difficulty than those arising in connection with incidents of professional relationship. Adoption of a narrow view of privilege is urged. This view would allow parties to produce new information for their own benefit but would not allow them to take exclusive advantage of information that independently exists. Such adoption would require that attorneys explain the privilege more carefully than many do at present. Once the privilege is clarified, it is expected that the frequency with which lawyers may be called as witnesses may increase slightly. The article includes 97 footnotes.