Harmonizing Privilege and Confidentiality 41 South Texas Law Review 1999-2000

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41 S. Tex. L. Rev. 69 (1999-2000)
Harmonizing Privilege and Confidentiality

handle is hein.journals/stexlr41 and id is 79 raw text is: HARMONIZING PRIVILEGE AND
CONFIDENTIALITY
FRED C. ZACHARIAS*
The subject of attorney-client confidentiality has assumed more
significance in recent scholarship than it deserves. Since its promotion
as the core of the adversary system and the attorney-client
relationship,' numerous authors-including myself-have focused on
the importance of strict confidentiality,2 the appropriateness of
broadening or narrowing exceptions,' the validity of the assumptions
* Professor, University of San Diego School of Law. The author thanks his
colleagues Kevin Cole, Shaun Martin, and participants at a University of Texas Law
School colloquium for their helpful insights. The author also thanks Robert Carichoff and
Lisa Koven for their research assistance.
1. The primary instrumental justifications for strict confidentiality are that without
confidentiality clients will not use or trust lawyers, lawyers will be less effective, and the
adversary system will therefore suffer. See, e.g., Fred C. Zacharias, Rethinking
Confidentiality, 74 IOWA L. REV. 351, 358 (1989) (analyzing confidentiality's justifications).
Confidentiality also has been justified as honoring the dignity, individuality, and autonomy
of clients, and as satisfying constitutional requirements that honor those ideals. See, e.g.,
MONROE FREEDMAN, UNDERSTANDING LAWYERS' ETHICS 87-108 (1990) (discussing
the dignitary and constitutional justifications for confidentiality); Stephen L. Pepper, The
Lawyer's Amoral Ethical Role: A Defense, A Problem, and Some Possibilities, 1986 AM. B.
FOUND. RES. J. 613, 621-24 (advocating the importance of honoring autonomy);
Zacharias, supra, at 358-59 (discussing dignitary rationales).
2. For a few of the approaches, see DAVID LUBAN, LAWYERS AND JUSTICE 177-
234 (1988) (analyzing the arguments for strict confidentiality); WILLIAM H. SIMON, THE
PRACTICE OF JUSTICE 56 (1998) (discussing option of more limited confidentiality rule);
and Fred C. Zacharias, The Restatement and Confidentiality, 46 OKLA. L. REV. 73, 85
(1993) (arguing that confidentiality may be of varying importance to different types of
lawyers); cf. Fred C. Zacharias, Reconciling Professionalism and Client Interests, 36 WM. &
MARY L. REV. 1303, 1365-66 (1995) [hereinafter Zacharias, Professionalism] (discussing
the importance of reviewing the scope of confidentiality with clients at the outset of the
representation).
3. See, e.g., Marvin Frankel, The Search for Truth Continued: More Disclosure, Less
Privilege, 54 U. COLO. L. REV. 51, 53 (1982) (arguing for reduced confidentiality); John T.
Noonan, The Purposes of Advocacy and the Limits of Confidentiality, 64 MICH. L. REV.
1485, 1491-92 (1966) (responding to Monroe Freedman's arguments in favor of broad
confidentiality); Fred C. Zacharias, Privilege and Confidentiality in California, 28 U.C.
DAVIS L. REV. 367, 404 (1995) [hereinafter Zacharias, Privilege and Confidentiality]
(proposing legislative attention to privilege and confidentiality future harm exceptions);
Fred C. Zacharias, Rethinking Confidentiality II: Is Confidentiality Constitutional?, 75
IOWA L. REV. 601, 640 (1990) [hereinafter Zacharias, Rethinking Confidentiality II]