Jedidiah Lauraya

LL.B 3rd Year Sec. C

The Dynamic Attorney-Client Privilege
A reaction paper

The modern world has seen many changes in the legal profession. The law
has pervaded almost all aspects of the lives of people. It is with these changes that
the lawyer finds himself confronted even with issues not entirely legal. The line
dividing what is legal and what is not have been distorted to the point where there
is almost always an overlap between legal advice and other considerations. It is in
these overlaps and blurring that we must understand the extent of the attorneyclient privilege and its implications on transactions and interactions between the
lawyer and client.
In the articles discussion of attorney-client privilege the author looks back
to a time when the functions of a lawyer were clearly defined. Over a hundred
years ago, lawyers function to make documents in transactions with legal
considerations, appear in courts and advocate their clients cause. Today the role of
lawyers have greatly expanded to include vital participation in business, corporate
transactions, tax related issues, and even personal issues affecting the relationships
of people.
Hence, the author mentions certain roles that the modern lawyer finds
himself performing. These are as a general advisor, as a negotiator, and as an
evaluator. The lawyer as a general advisor translates the generality of the law into
specifically-applicable information for the client so that the client may conform his
or her behavior to the expectations of the law, plan for the future, or invoke the
protections of the law. As a negotiator, the lawyer seeks a result legally
advantageous to a client while dealing honestly with others in reaching an
agreement. And finally, a lawyer as an evaluator investigates and reports on the
clients situation using his legal expertise. These roles of a lawyer require him to
be a complete lawyer one that is grounded on the practical applications of the
law and issues which may be related to his clients cause. The modern lawyer thus,
is taken out of the law library and into the realm of giving counsel that is relevant,
practical, and applicable to the client.
These particular roles of a lawyer have an importance in the discussion of
the attorney-client privilege in that in all of them this protection applies allowing
for a free flowing exchange of information without the fear of the same being used
against the client.
The attorney-client privilege is one that allows clients to communicate
concerns with their legal counselors, without fear that the communication might

subsequently be used as evidence against them. This privilege allows clients to

openly discuss with the lawyer facts, which if out in the open, may be prejudicial
to them. This privilege also allows the lawyer to distinguish pertinent information
for possible legal action and for sound legal counsel. The privilege also facilitates
discussions between the lawyer and client which may not be necessarily purely
legal in nature, they may entertain moral, political, even economic considerations
and still be covered by the privilege. The same privilege allows the lawyer to
advice the client of not only the legal implications of their possible actions but also
what is expected in such a situation, bearing in mind that the lawyer also has a
moral obligation to promote the ends of justice.
Such privileged communication coupled with the duty to keep information
confidential is not only unique to the lawyer-client relationship, it is fundamental
to its existence. Without it there will forever exist a doubt, as to the client, that his
cause will not be protected and that he should keep vital information to himself.
The privileged communication between the lawyer and the client strengthens the
rapport between the two and provides the foundation for fiduciary trust between
them. The same is also a justification for that fact that the actions of the lawyer
bind the client. For it is presumed that these actions are a derivative of what the
lawyer and client have deliberated in their talks as to the legal actions to be taken.
The author mentions of many applications of the attorney-client privilege.
Among them are family law, corporate law, and elder law. In family law the author
mentions that although the same still requires basic lawyering skills, modern
family law is now embedded with a lot of facets that require competencies in
different fields. The attorney-client privilege finds application in this filed again in
that personal matters affecting relatives or closely related people are at stake. Such
a privilege and a high degree of confidentiality are necessary to promote
reconciliation if not to avert further disagreements and law suits.
As for corporate law the same privilege has utmost importance particularly
in the transactions and negotiations in business. These are held highly confidential
as breach in confidentiality may be prejudicial to the business or the company.
Thus, lawyers must be careful to observe this privilege and comply with the
expected confidential nature of all information exchange. In corporate law, the
lawyer needs to develop other competencies to be effective in his practice. He
needs to be aware of recent business developments, particularly that of his clients,
in order to give advice that is grounded and practical. His legal advice need not be
restricted to knowledge of the law but should also involve moral and social
considerations.
Particular in corporate law is the danger of disguising certain
communications as covered by the attorney-client privilege. Some businesses
course their communication to lawyers and take advantage of the privilege
although such communications are not primarily intended for the lawyer. The

lawyer must be wary of this and must sanction such abuses of the privilege. It is
only in the instance where the primary recipient of the information is the lawyer
that the privilege applies. It is important to note that the nature of the information
or conversation although not entirely legal, still falls within the privileged
communication when the primary purpose is still legal advice. However, when the
primary purpose is business advice, as when a lawyer also functions as a
businessman, if legal advice is only incidental to it, then the same is not covered by
the privilege.
The author also mentions elder law as one fields of law which greatly
changed or emerged in recent years and is of importance to the application of the
lawyer-client privilege. Elder law deals with laws affecting senior citizens. The
author provides a background of this field of law and traces its roots to mere estate
planning. Today this field of law is a major field of practice especially in the
American setting. Because of the uniqueness of the filed the lawyer is expected to
know that intricacies of dealing with the elderly aside from his legal expertise. The
lawyer-client privilege plays an important role in this field as well in that
information and transactions of the clients should be held with utmost
confidentiality as they have relation to the disposition of their estates, health
benefits, retirement, and other necessities.
One important purpose of the lawyer-client privileged stressed by the author
is its importance in facilitating moral deliberation in the attorney-client
relationship. That is, the lawyer does not only advice the client on things that can
be done but on this that should be done as well. His duty to society as well as to
his client involves many relevant social, economic, political, and philosophical
considerations. Thus, the lawyer must be always aware that aside from his duty to
analyze the clients situation to be able to present alternative recourses, he must
also present that which is morally and socially expected and acceptable. However
in doing this, the lawyer must not impose his own values towards the client.
Indeed, the changes brought about by modernity and industrialization has
greatly changed the way lawyers function in society. Their roles have greatly
changed and the necessary competencies needed to be fit for the tasks at hand have
substantially increased. It is no longer enough to have a good grasp of the law and
its application. It is likewise expected of the lawyer to be grounded in societal
issues that play a role in the legal issues at hand. A lawyer should not give legal
advice straight from the books but find one that will be applicable and practical to
the client. In these roles that the lawyer plays he must know when the attorneyclient privilege arises and when it is being abused as an escape from possible leak
of information.
The attorney-client privilege is a fundamental part of the lawyer-client
relationship and without it they would not be able to arrive at the best solution or
undertaking for the present issues. Such privilege is also a vehicle for the
advancement of justice by allowing moral and social discussions between the
lawyer and client as regards the possible implications of their actions.