Title

Privilege Can Be Abused: Exploring the Ethical Obligation to Avoid Frivolous Claims of Privilege

Abstract

Many lawyers believe that ethical duties of confidentiality and zealousness require them to assert attorney-client privilege as aggressively as they assert a criminal defendant’s lack of guilt. They treat client information as if it is “privileged until proven unprivileged,” even though it is the claimant of privilege that has the evidentiary burden of showing that all the legal elements of privilege are met. Ordinarily, the adversary system works well to expose and control frivolous claims, but challenges to frivolous claims of privilege face unique obstacles. Challengers must operate “in the dark,” without the detailed knowledge of the communication needed to determine whether it really is privileged and whether its strategic value justifies the expense of opposition. This has made it easy and advantageous for lawyers to make frivolous claims of attorney-client privilege, despite the threat of court-imposed sanctions. Such abusive claims of privilege decrease the quality of justice by preventing consideration of relevant evidence and increase the cost of litigation by forcing expensive collateral litigation around privilege claims. The strategic advantage of frivolous claims of privilege combined with the inadequacy of the adversary system to discover and sanction such claims suggests that the rules of ethics could serve as a counter-balance. Yet, our existing ethical rules actually seem to encourage lawyers to make frivolous, “knee-jerk” claims of privilege by emphasizing the ethical duties of confidentiality and zealous representation. Against this, I argue that a limit to claims of attorney-client privilege should be understood as implicit in the existing Model Rules of Attorney-Client Privilege and that explicit ethical limits of the kind proposed in the article will not undermine confidentiality. However, an effective ethical limit requires that useful guidance about what constitutes a frivolous claim of privilege can be provided. I condense an analysis of cases in which lawyers have been either legally sanctioned or ethically disciplined for making such claims into a proposed added Comment to Model Rule 3.1 (Meritorious Claims and Contentions).

Disciplines

Ethics and Professional Responsibility

Date of this Version

March 2006