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Several attorney-client privilege cases compelling disclosure have recently made news: 

  • Illinois and North Carolina courts have held that the “common interest” doctrine, which in California applies to preserve the attorney-client privilege among parties with a common interest, compels disclosure of attorney-client communications to another party with an alleged common interest. Nationwide Mut. Fire Ins. Co. v. Bourlon, 617 S.E. 2d 40 (N.C. App. 2005); Western States Ins. Co. v. O’Hara, 357 Ill. App. 3d 509 (Ill. App. 2005). 
  • A District Court, applying Arizona law, held that a defendant waived its privilege by asserting it acted “within the bounds of the law,” in defense of a bad faith claim. Roehrs v. Minnesota Life Ins. Co., 228 F.R.D. 642 (D. Ariz. 2005).
  • A District Court in California held that a defendant waived its privilege by asserting in its defense that it adequately investigated discrimination claims. Walker v. County of Contra Costa, 227 F.R.D. 529 (N.D. Cal. 2005).
  • An Ohio court held that the insurer effectively waived its privilege by denying an insured’s claim of bad faith. Boone v. Vanliner Ins. Co., 91 Ohio St. 3d 209, 213-14, 744 N.E. 2d 154 (2001).

A client will not communicate with his or her attorney with the complete confidence required, and vice versa, if courts commonly compel disclosure in situations that they did not foresee in advance. Certainly each court found a persuasive reason that justified disclosure in its view. However, collectively, these cases threaten to pull the cornerstone out from under the attorney-client privilege.

In contrast with Nationwide Mut. Fire Ins. Co., another recent case illustrates a different approach more sympathetic to the privilege. The court in Neighborhood Dev. Collab. v. Murphy, __ F. Supp. 2d __, 2005 WL 3272711, *6 (D.Md. Dec 02, 2005) “t[ook] exception” to the argument that a common interest resulted in waiver:

[T]he Court takes exception to [the argument] that a joint representation of Party A and Party B may somehow arise through the expectations of Party B alone, despite Party A’s views to the contrary. This position is untenable, because it would, as Defendant Murphy points out, “allow the mistaken (albeit reasonable) belief by one party that it was represented by an attorney, to serve to infiltrate the protections and privileges afforded to another client.

Accordingly, the “claim of implied joint representation” was held “to be without merit.” Id.

A brief examination of the history and rationale of the attorney-client privilege explains why many argue confidence in the privilege is so essential. Until 1776, the objection—or rather the “point of honor”—was thought to belong not to the client but to the attorney as “a part of the professional accoutrement of the gentleman of the law.” Rigolfi v. Superior Court, 215 Cal. App. 2d 497 (1963). That year, the Duchess of Kingston was tried in the House of Lords on charges of bigamy. At trial, her counsel was asked by one of the Lords about the Duchess’s conversations with him about a prior marriage. Though she exempted him from secrecy, the attorney refused to answer. The House of Lords directed the attorney to answer, thus ending the “point of honor” theory. 20 Howell, State Trials 355, 586 (1776).

In its place developed the modern theory of the attorney-client privilege, in which the privilege belongs to the client. In California, this basis for the attorney-client privilege was explained in the former section 1881 of the Code of Civil Procedure: “There are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate.” Likewise, section 6068 of the Business and Professions Code warned: “It is the duty of an attorney: . . . (e) To maintain inviolate the confidence, and at every peril to himself to preserve the secrets, of his client.”

Thus, it is and always has been essential to the privilege that the client have unbroken confidence in the privilege, so the client will disclose all relevant facts. If he or she does not, “the advice which follows will be useless, if not misleading, the lawsuit will be conducted along improper lines, the trial will be full of surprises, and much useless litigation may result.” San Francisco v. Superior Court, 37 Cal. 2d 235 (1951). Moreover, the absence of the privilege would inevitably convert the attorney into a mere informer for the benefit of the opponent. San Francisco v. Superior Court, supra.

This is not, of course, to say that exceptions to the privilege are not justified, such as when a client attempts to use those communications in furtherance of a crime or fraud. But the exceptions are historically construed as exceptional. As the Supreme Court has warned: “Unless the client knows that his lawyer cannot be compelled to reveal what is told him, the client will suppress what he thinks to be unfavorable facts.”

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at info@fedsoc.org.