Friday, December 17, 2004

The Confidentiality Fetish

Professor William H. Simon (Columbia) has an article in the December issue of The Atlantic, "The Confidentiality Fetish," that challenges what he sees as the overuse by lawyers of the protections afforded by the attorney-client privilege.  Professor Simon is one of the leading academics in the field of professional responsibility.  He argues that lawyers are effectively selling the privilege to protect information that society may be better served having revealed.  He states:

Lawyers, in short, have carved out a role for themselves as the privileged keepers of much information that is important to the public interest. Historically, lawyers have liked to think of themselves as defenders of individual liberty against an overbearing state, primarily through traditional advocacy—that is, persuasively asserting a client's rights. Today, however, lawyers' typical efforts to mediate between clients and the state rely less on advocacy and more on information control. This is a disturbing development; lawyers have brought to their new role as information guardians a powerful predisposition toward needless secrecy that suppresses and distorts information about many matters of public importance.

The push toward confidentiality, if it can be called that, is nothing new, at least among lawyers, and the attorney-client privilege has been described by the Supreme Court as the oldest one recognized by the law (Upjohn).  Nor is it necessarily a "fetish"--for which one definition is "an abnormally obsessive preoccupation or attachment; a fixation"--for lawyers to use a widely-recognized tool to a client's advantage, or at least to protect the client's current interests.  There is naturally a frustration with the privilege, in much the same way that the Fifth Amendment protection against self-incrimination thwarts a search for the truth.  Professor Simon's point that lawyers use the privilege to their advantage as a marketing tool--he references the tobacco industry's employment of lawyers to shield unfavorable research on the harmfulness of cigarettes--is well taken.  One of the advantages of having an attorney conduct an internal investigation is the benefit of both the attorney-client privilege and the work product protection to shield certain types of information generated by the investigation, at least for a while.

Professor Simon has also published an extensive article in the California Law Review in 2003 entitled "Whom (or What) Does the Organization's Lawyer Represent.?".  A working paper version of his article is available on SSRN here. His analysis of the problems with identifying the true "client" of the organization is worth considering. (ph)

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