The attorney-client privilege causes more harm than good, it keeps important information off limits and potentially damages society in order to protect a few.

One important aspect to think about is the fact that by withholding important information, people can get hurt. In fact, in August of 2001, the American Bar Association met to revise the rules of attorney-client confidentiality. They have relaxed their strict policy of confidentiality to state that in a situation where a lawyer has information that could prevent "reasonably certain death or substantial bodily harm" (ABAnet.org), they have the right to disclose such information if they believe it would help. However, these rules are still very strictly against waiving confidentiality between lawyers and their clients. There are many reasons why lawyers should also be allowed to disclose confidential information when doing so could prevent financial harm to others, among other reasons. Anyone who doubts this should simply look at the recent collapse of the Enron Corporation, and the devastating financial consequences it had for thousands of Americans. As the Congressional hearings revealed, Enron's legal advisors might have been able to prevent this disaster had they been able to notify someone of the wrongdoings of the corporation (1). However, because of the attorney-client privilege, it was against the law for those lawyers to break confidences and come forward with such valuable information.

The attorney-client privilege allows innocent people to be convicted and guilty people to go free. "In a well-known Alabama case, Leo Frank was convicted of murder and then lynched by and angry mob. It was later revealed that the real killer had confessed to his attorney, who remained silent, prior to the lynching" (2). This is the most clear-cut example of how dangerous the attorney-client privilege is. It keeps guilty people out of jail, while it could condemn an innocent person to death. But, because an attorney cannot reveal information told to them by a client, they could not come forward to help someone who they know to be innocent. In this sort of example, it is a danger to society, and simply unethical because it is wrong to just allow someone who is admittedly guilty to just walk free and let someone else take the wrap for it.

The attorney-client privilege keeps information confidential that may be relevant to the resolution of important matters. For example, nine days before he committed suicide, Vince Foster had a confidential conversation with his lawyer. Whitewater investigator Kenneth Starr tried to get the lawyer's handwritten notes from that meeting and the lawyer refused. Starr said that such information was vital to see whether presidential aides covered up Hilary Clinton's roles in the White House travel office firings shortly after President Clinton took office (3). Starr argued that the privilege should not apply because of the needs of the special investigator and because it could not harm Foster in any way if the information was disclosed (4). The case ultimately went to the United States Supreme Court, which decided that in this case, the attorney-client privilege survives even after the client's death. As a result, evidence that might have been crucial to the Whitewater investigation was withheld and will remain a secret, even though there is some sources that have stated that Hilary Clinton's name came up in those notes (5).

Another important example of the misuse of the attorney-client privilege is the tobacco industry and their manipulation of the truth and hiding of damaging information to the public. In this case, the way that the privilege was misused was that lawyers were put in to oversee (and sometimes even manage) the tobacco company's "scientific" research. "The idea was that bad findings could be held back as lawyer-client confidences, whereas good findings could be described as the product of scientific inquiry" (6). In this way, the lawyers became conspirators in causing the addiction and death of tens of millions of innocent Americans. By having lawyers oversee it, there was no simple way that a court or any other legal proceeding could have gotten this information about the dangers of smoking cigarettes because it was protected under the privilege. This manipulation of the privilege happens in business all the time, and there are no rules to help to prevent it.

Notes:

1) Girion, Lisa. "Calls for Lawyers to Blow the Whistle." Los Angeles Times. 24 March 2002: 2. 14 May 2002. <http://www.latimes.com/business/printedition/la-000021143mar24.story?coll=la%2Dheadlines%2Dpe%2Dbusiness>

2) Marquand, Robert. "Justices Take Up Limits of Privilege." The Christian Science Monitor. 9 June 1998: 3. 13 May 2002. <http://www.csmonitor.com/durable/1998/06/09/fp1s3-csm.html>.

3) "High Court Upholds Attorney-Client Privilege After Death." AllPolitics CNN. June, 1998: 13 May 2002. <http://fyi.cnn.com/ALLPOLITICS/1998/06/25/scotus.foster/index.html>

4) Marquand, Robert. "Justices Take Up Limits of Privilege." The Christian Science Monitor. 9 June 1998: 3. 13 May 2002. <http://www.csmonitor.com/durable/1998/06/09/fp1s3-csm.html>.

5) "High Court Upholds Attorney-Client Privilege After Death." AllPolitics CNN. June, 1998: 13 May 2002. <http://fyi.cnn.com/ALLPOLITICS/1998/06/25/scotus.foster/index.html>

6) Hazard, Geoffrey C. "Tobacco Lawyers Shame the Entire Profession." The National Law Journal. 18 May 1998. 14 May 2002.