Article by Robert G. Clyne & Alexander P. Cosner
The attorney-client privilege is a doctrine well entrenched in the common law, well respected by the courts, and essential to the work of practicing attorneys. The application of the privilege, however, is largely driven by its policy underpinnings and is flexibly applied in accordance with the factual setting in which the privilege is sought. The development of new communication technologies, which the courts have struggled to adequately address in the context of discovery disputes, as well as tactics and strategies deployed by government entities designed to encourage waiver of the privilege, has necessarily created new uncertainties in the application of the privilege.
This Article reviews the legal underpinnings of the attorney-client privilege and its exceptions and attempts to address how best to prepare to deal with the privilege in the modern era, while also attempting to highlight those issues perhaps unique to corporate counsel and the admiralty practitioner. Part II of this Article discusses the development of the attorney-client privilege and its basic tenets, all while highlighting elements of the modern modes of communication that may or may not fit within common and traditional conceptions of the privilege. Part III discusses the development of several exceptions to the attorney-client privilege, in addition to an exception to waiver of the attorney-client privilege, in an attempt to demonstrate how the core policy rationale of the privilege has previously been used to adjust to new scenarios and may be used to do so again. Part IV discusses recent developments outside the courtroom with respect to the application of the attorney-client privilege in the context of criminal investigations of corporate entities. Finally, Part V discusses how the modern practicing attorney might best approach the rising challenges to the attorney-client privilege embodied by modern technology and government action, first by examining a failed attempt to address a discovery dispute involving modern communications, and then by highlighting the areas in which practicing attorneys may best work to protect the privilege.
89 Tul. L. Rev. 1179 (2015)