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Thesis Statement For The Attorney-Client Privilege

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A. Historical Basis
The attorney-client privilege is the oldest of the evidentiary privileges with a history that can be traced to Roman and canon law. Official references to the rule first appear in English decisions as early as the late Sixteenth Century. In accordance with the justification for professional privileges in general, the attorney-client privilege was thought to be essential to the establishment and preservation of a relationship based on trust between attorney and client. This justification, however, fell out of favor by the last quarter of the 18th century. The need to ascertain the truth for the ends of justice was more urgent than the pledge of secrecy. Subsequently, a new justification was found to sustain this pledge. …show more content…

Without the guarantee of confidentiality, clients would hesitate to reveal embarrassing or damaging facts, and attorneys would be forced to render legal advice and services based on partial knowledge of clients' situations. By providing attorneys with all of the information needed to provide competent representation, the privilege is thought to promote greater accuracy in the truthfinding process , despite the fact that it blocks the factfinder's access to potentially relevant evidence. Under this utilitarian framework, without some specific compelling reason to compel disclosure, it makes sense to extend the privilege after the death of the client, since clients are more likely, on average, to be frank with their attorneys when assured of continuing …show more content…

The first of these characterizes the privilege as a tool of the powerful, a means of allowing the wealthy to maintain a veil of secrecy around their activities so as to avoid loosening their stranglehold on power and resources. The second describes the privilege as a way of enhancing the image of the legal system. According to this view, by safeguarding certain communications between clients and attorneys, the privilege prevents society from viewing courts as despotic juggernauts, and prevents the emergence of information after the fact that might undermine the credibility of the factfinding process.

The last few decades have witnessed extensive debate over the proper scope of the privilege. Much of this debate is really a debate over the appropriate reasons to have such a privilege at all, since the differing rationales suggest different formulations of the rule. Courts and commentators do agree that the privilege should be defined in such a way as to shield no more information than necessary from the eye of the factfinder. After all, the device "inevitably excludes potentially relevant information from the consideration of the finder of fact," and thus has the potential to impair the functioning of

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