We’re hard at work on our topic analysis of the new Lincoln-Douglas topic, Resolved: In the United States criminal justice system, truth-seeking ought to take precedence over attorney-client privilege. Today, we’ve got a sneak-peek card to help jump-start your research while you’re waiting!
Attorney-client privilege is critical to the ethical and complete functioning of the lawyer as an advocate — without it, effective representation is impossible.
Cole, 2003 [“Revoking our Privileges: Federal Law Enforcement’s Multi-Front Assault on the Attorney-Client Privilege,” Lance, Assistant Professor of Law, The Dickinson School of Law of The Pennsylvania State University, 48 Vill. L. Rev. 469]
The discussion above of federal law enforcement policies and practices over the past two decades demonstrates that the protections provided by the attorney-client privilege and the work product doctrine have been significantly diminished in recent years. Commentators have recognized this trend toward diminished privilege protections, n515 and have analyzed its impact on particular areas of law. n516 This Article has examined the areas in which the privilege has been under attack at the federal level, with the objective of highlighting the cumulative effect of these attacks. While it is not possible to quantify, or even to measure with precision, this cumulative effect, the extent of the erosion of privilege protections and the level of concern about that erosion suggest that the system may be nearing a [*587] turning point – a point at which the continued viability of the privilege is at risk. Most commentators, and certainly most practicing lawyers, agree that the attorney-client privilege is an integral element of our legal system. n517 In 1978 Professor Geoffrey C. Hazard, Jr. offered a compelling articulation of the modern rationale for the attorney-client privilege: The attorney-client privilege may well be the pivotal element of the modern American lawyer’s professional functions. It is considered indispensable to the lawyer’s function as an advocate on the theory that the advocate can adequately prepare a case only if the client is free to disclose everything, bad as well as good. The privilege is also considered necessary to the lawyer’s function as confidential counselor in law on the similar theory that the legal counselor can properly advise the client what to do only if the client is free to make full disclosure. n518 A review of the Supreme Court’s attorney-client privilege cases over the past two decades demonstrates that Professor Hazard’s assessment of the importance of the privilege remains valid today. n519 A review of federal law enforcement actions over the past two decades, however, demonstrates that the privilege is increasingly under attack and at risk. n520 If one agrees that the attorney-client privilege and, perhaps to a lesser extent, the attorney work product doctrine are central to our adversarial system of justice [*588] and therefore worth preserving, then the recent developments that are discussed in this Article beg the question of what should be done to stop unnecessary attacks on the privilege and prevent further erosion of the protections that the privilege provides. Some suggested changes in the policies and practices of federal law enforcement officials are described below.
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