The attorney-client privilege: practical military applications of a professional core value

Air Force Law Review, Spring, 2000 by Norman K. Thompson, Joshua E. Kastenberg

NORMAN K. THOMPSON [*]

JOSHUA E. KASTENBERG [**]

I. INTRODUCTION

"This [attorney-client] privilege--one of the oldest and soundest known to the common law--exists for the purpose of providing a client with assurances that he may disclose all relevant facts to his attorney safe from fear that his confidences will return to haunt him." [1]

A squadron commander wants to know if a member of her unit visited the Area Defense Counsel (ADC) for advice. A doctor suspected of malpractice thinks the base claims officer is "his lawyer" and should keep his confidences. A legal assistance client comes to the base law center to consult about a divorce and makes criminal admissions to his attorney about abusing his wife. A Marine sees a defense counsel for advice on nonjudicial punishment offered under Article 15 [2] of the Uniform Code of Military Justice (UCMJ) for being absent without leave [3] (AWOL)--during the consultation, he tells the attorney he is being sought in connection with an ATM card theft. He is later prosecuted by the same counsel for that theft. The Air Force Office of Special Investigations (AFOSI) seizes an Air Force officer's home computer--he demands it back, claiming it contains privileged documents prepared at the request of his attorney. A wing commander wants to pursue a clearly illegal course of action and tells his staff judge advocate (SJA) he is "going around these stupid regulations to make the 'right thing' happen." A trial counsel wants to compel an ADC to testify about an AWOL client's whereabouts. An accused marks his incriminating financial files "attorney-client privilege" and hides them in his automobile. AFOSI finds and seizes the files anyway. And the list goes on....

These examples are drawn from case law and the personal experiences of the authors. In each scenario, the attorney-client privilege, one of the legal profession's core values, comes squarely into play. This article grapples with these and other examples of the purpose, limits, and uses of the privilege. We examine these issues with an eye toward the practical application of the privilege to daily military legal practice generally and to Air Force practice in particular. As these examples illustrate, the attorney-client privilege touches every aspect of our profession. The axiom that a lawyer must keep client confidences inviolate is so fundamental to the effective practice of law that it enjoys nearly universal apprehension and acceptance among lawyers and laymen alike.

This article examines the historical development of the attorney-client privilege and then explores the privilege generally before tackling some specific areas where the privilege commonly arises in military practice. We explore important aspects of the privilege from three different perspectives: (1) a prosecution perspective--saving court-martial cases involving alleged compromise of attorney-client privileged material by trial counsel and/or investigators, (2) a defense perspective--using the privilege to protect information about the whereabouts of a client and the contents of a defense counsel's appointment schedule, and, (3) a general military practice perspective--the potential conflicts of interest which may arise when the privilege is factored into a diverse military practice involving advice to command, claims litigation, military legal assistance, and the plethora of other issues handled by installation-level judge advocates daily.

II. THE ATTORNEY-CLIENT PRIVILEGE GENERALLY

A. Common Law Development

"The first duty of an attorney is to keep the secrets of his clients." [4]

A review of the common law roots and scope of the attorney-client privilege will be helpful before proceeding further. The exact origins of the attorney-client privilege are somewhat foggy. It may have origins reaching back to the Roman Empire. [5] Fragments of the privilege date back to sixteenth century Elizabethan England, when evidentiary privileges arose as the testimony of witnesses became the principal basis of jury verdicts and compulsory process was introduced. [6] The noted scholar Dean John Wigmore wrote: "The history of this privilege goes back to the reign of Elizabeth I, where the privilege appears as unquestioned. It is therefore the oldest of the privileges for confidential communications." [7] The English privilege did not arise to protect the interests of the client, but from a desire to uphold "the oath and the honor of the attorney" to abide by his implied "solemn pledge of secrecy." [8] Cases upholding the attorney-client privilege appear as early as l577. [9]

Two seventeenth century English decisions allowed a "counselor at law" to refuse to testify against "their cause." [10] In each case, the "cause" involved an attorney's testimony against a client. In 1743, an English court in Annelsey v. Anglesea, [11] narrowed the privilege to exclude protection in instances where an attorney engages in criminal activity, [12] where information was not gained as a result of the particular pending action, [13] or where information was not essential to the matter for which the attorney was consulted. [14] By the latter part of the 1700s, ownership of the privilege had shifted to the client, and the law recognized that "[i]n order to promote freedom of consultation of legal advisers by clients, the apprehension of compelled disclosure by the legal advisers must be removed; hence the law must prohibit such disclosure except on the client's consent." [15]