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Foundation BriefsAdvanced Level November/December Lincoln-

Douglas Brief

Resolved: In the United States criminal justice system, truth-seeking ought to take

precedence over attorney-client privilege.

November/December 2013 Table of Contents

Table of ContentsTable of Contents.....................................................................................................................................................1

Defend Your Source..............................................................................................................................................11

Authors..............................................................................................................................................................11

Organizations.....................................................................................................................................................21

Definitions.............................................................................................................................................................22

Definition of the Criminal Justice System. BPG.......................................................................................22

Definition of Prosecutorial Misconduct. ABB..........................................................................................22

The Work-Product Doctrine is not part of Attorney-Client Privilege DC.................................................23

Attorney-Client Privilege does not protect facts, only attorney-client communications...........................23

The attorney-client privilege requires only the content of the communication stay confidential, not necessarily the facts. CFS..........................................................................................................................24

Explanation Of When and How The Attorney-Client Privilege Comes to Exist. BPG............................24

Definition of Attorney-Client Privilege DC..............................................................................................25

Definition of Attorney-Client Privilege. BPG...........................................................................................25

Definition of Attorney-Client Privilege. PNG...........................................................................................26

Attorney-Client Privilege rests on the assumption that it is not used to break the law DC.......................26

Attorney-Client Privilege does not permit lying DC.................................................................................27

Exceptions to The Attorney-Client Privilege. BPG...................................................................................27

Truth-seeking spans a range of activities. TF............................................................................................28

Attorney-client privilege includes relationship and communication. TF..................................................28

Attorney-client privilege isn’t clearly defined in the status quo. TF.........................................................29

Attorney-client privilege is based on utilitarian calculations – not absolute. TF......................................30

Technology complicates the attorney-client privilege. Most communications via technology will not be protected. CFS...........................................................................................................................................30

United States v. Kovel. TF........................................................................................................................31

The attorney-client privilege is important and functions as a property right. CFS...................................31

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November/December 2013 Table of ContentsTopic Analysis.......................................................................................................................................................32

Pro Evidence..........................................................................................................................................................34

Truth-Finding is at center of court system.........................................................................................................35

Truth-finding increases confidence in court system..................................................................................35

Defendant still maintains individual rights with a truth-seeking focus. PNG...........................................35

The truth is crucial to ending cyclical crime. PNG...................................................................................36

Not valuing truth leads to false convictions. BPG.....................................................................................36

Truth is Extremely Important. BPG...........................................................................................................36

Truth-seeking inherently restores justice. TF............................................................................................37

Truth-seeking upholds values of democracy. TF......................................................................................37

Truth comes a priori. TF............................................................................................................................38

Attorney-Client Privilege is Unnecessary.........................................................................................................39

Prosecutors can Prevent wrongful Convictions and Unfair Trials ABB...................................................39

Many lower management employees are unaware of the privilege and do not use it. CFS......................40

Corporations are more concerned with strategic business decisions than following the rules. Attorneys have little leverage on corporate conduct rendering the privilege irrelevant. CFS...................................40

Attorney-Client Privilege is not the only reason for full disclosure from client. PNG.............................41

Limited attorney-client privilege would not reduce client honesty. PNG.................................................41

The attorney-client privilege only serves to benefit the attorneys and falsely increases the value of the profession. CFS..........................................................................................................................................42

The privilege only adds additional costs for clients and interferes with communicating the truth. CFS. .42

The attorney-client privilege in the adversarial system gives an unfair advantage to the defendant. AC.43

Recent trends in the criminal justice system demonstrate the increasing importance put on truth-seeking at the expense of the attorney-client privilege. AC...................................................................................44

Justice must take precedence over attorney-client privilege. PNG...........................................................45

Alternatives to Attorney-Client Privilege..........................................................................................................46

The work-product doctrine acts as a viable alternative to attorney-client privilege. TF...........................46

Client confidentiality is an ethical check on attorney-client privilege. TF................................................46

Ridding attorney-client privilege opens path for computer-based evidence discovery. TF......................47



Knowledge of intrusion provides a check to attorney-client violations. TF..............................................48

Without the privilege, clients would have more control and can give information at their own risk. CFS...................................................................................................................................................................48

Attorney Client Privilege May Harm the Innocent............................................................................................49

Example of Attorney Client Privilege Covering Up a Wrongful Conviction ABB..................................49

Attorney-Client Privilege not favored by the Supreme Court. PNG.........................................................49

Attorney-Client Privilege May Cause False Convictions ABB................................................................50

The Attorney-Client Privilege Must Be Overridden In Malpractice Lawsuit. BPG.................................51

Example where Attorney-Client Privilege Could Conceal Child Abuse. ABB........................................52

Conflicts Exist Between Attorney-Client Privilege and Abuse Reporting Requirements. ABB..............53

Attorney-client privilege makes it more difficult for innocents to convince jury they have nothing to hide DC..............................................................................................................................................................54

Bentham’s argument against attorney-client privilege does not go far enough DC..................................54

Wrong convictions are too common. PNG................................................................................................55

Focus on Protecting Attorney-Client Privilege Prevents Abuse Reporting in Most States. ABB............55

Attorney-Client privilege hurts protection of the innocent accused by complicating legal process. TF...56

Focusing Solely on Attorney-Client Privilege Insufficient...............................................................................57

Man Wrongfully Convicted of Murder Due to Prosecutor Withholding Info. ABB.................................57

Potential for Wrongful Convictions due to Prosecutorial Misconduct. ABB...........................................58

Stricter Checks on Attorneys Necessary to Prevent Wrongful Convictions. ABB...................................59

Example of Negligent Attorney Causing Wrongful Conviction. ABB.....................................................59

Attorney-Client Privilege May Exonerate the Guilty........................................................................................60

Example Of Attorney-Client Privelege Protecting a Confessed Murderer ABB......................................60

The attorney-client only helps guilty clients. This makes trials more difficult and immoral. CFS...........60

Protection of Innocents Vital to Criminal Justice..............................................................................................61

Truth-Seeking Protects Innocents. PNG....................................................................................................61

Truth-defeating devices lead to the conviction of innocents. PNG...........................................................61

Criminal Justice should respect individual human rights. PNG................................................................62

Truth Seeking would Clarify Duty of Prosecutors to Stop Wrongful Convictions ABB..........................62



Inquisitorial Systems Serve as Truth-Seeking Models......................................................................................63

French Truth-Seeking system more likely to protect innocent. PNG........................................................63

National courts around the world have set the precedent for “the right to truth”. PNG............................63

U.S. Government has challenged attorney-client privilege. TF................................................................64

Attorney-Client Privilege Allows Abuse By Large Corporations.....................................................................65

The Attorney-Client Privilege Applies to Corporations. BPG..................................................................65

The Government is eroding attorney-client privilege in cases involving large corporations. BPG..........66

Lawyers will give worse legal advice to corporations if the government continues to erode attorney-client privilege. BPG.................................................................................................................................67

Changing From Our Current System to Truth-Seeking Will Solve The Problem With Attorney-Corporate relationships. BPG....................................................................................................................67

Explanation of How Enron Collapsed. BPG.............................................................................................69

Ways In Which Enron Abused The Attorney-Client Privilege. Lawyers feel no obligation to tell the truth and reveal to others corruption within the corporation they work for. BPG.............................................70

More Ways In Which Enron Abused The Attorney-Client Privilege. Lawyers feel they have no obligation to tell the truth (especially in-house counsel). BPG.................................................................72

Enron’s In-House Counsel felt justified in shredding documents and concealing information even though it disrupted seeking truth. BPG..................................................................................................................73

Legal Institutions Have Solidified The Power of Corporations in Society And Allowed for the Rise of Capitalism in America. BPG.....................................................................................................................74

Lawyers Assist Corporations in Having Control Over Truth, Technology, and Information. BPG.........75

Capitalism is Responsible For Our Current Ecological Crisis. BPG.........................................................77

The calculative nature of capitalism reduces entire populations to human recourses and negates the value of human life. BPG....................................................................................................................................78

Democracy mediated by capital is nothing more than the underside of totalitarianism, it justifies violence and exclusion in the name of people who form its basis. BPG...................................................79

We Must Resist Any Manifestation of Capitalism. BPG..........................................................................80

Good and evil are relative to what is being described good or evil. Thus, values and criterion on this topic must relate specifically to what makes up a good Criminal Justice System, not what is good in an abstract sense. BPG...................................................................................................................................83

The Criminal Justice System must be defined by what it is meant to do; any framework without a description of the function of the criminal justice system fails to prescribe a meaningful ought. BPG. . .84



Attorney-client exclusivity is on the decline – corporations prove. TF....................................................85

Conceptual challenge to the privilege in the modern context of corporate attorneys based on third-party involvement in corporations. AC...............................................................................................................86

Attorney-Client Privilege Hinders Truth-Seeking.............................................................................................87

Attorney-client privilege hinders truth seeking. TF..................................................................................87

The attorney-client privilege, if protected for the purpose of establishing trust between the attorney and the client, promotes injurious legal practices and perspectives. AC.........................................................87

Attorney-client privilege hinders truth-seeking. TF..................................................................................88

The Attorney-Client Privilege hurts executive-congressional negotiation. TF.........................................89

Attorney-client privilege discourages truthful legal proceedings. TF.......................................................90

Con Evidence.........................................................................................................................................................91

Attorney-Client Privilege Necessary in US Courts...........................................................................................92

The Incentive of Prosecutors to Act in a Biased Manner. ABB................................................................92

Prosecutorial Misconduct Currently Causes Wrongful Convictions ABB................................................93

Attorney-Client Privilege lets attorneys fully fulfill their role DC............................................................93

Attorney-Client Privilege necessary for client honesty. PNG...................................................................94

Attorney-Client Privilege Serves both the Accused and Society as a Whole ABB..................................94

The Attorney –Client Privilege Allows Lawyers to Better Fulfill Their Responsibilities to Their Client. BPG............................................................................................................................................................94

Attorneys Can Help to Compensate for Prosecutorial Immunity ABB.....................................................95

Attorney-client privilege is a fundamental aspect of the justice system. TF.............................................96

Attorney-client privilege protects legal communication. TF.....................................................................96

The privilege is essential to the existence of the legal profession. AC.....................................................97

Attorney-Client privilege and the communication it promotes is important for adversarial system. AC. 97

The attorney-client privilege is an important part of checks and balances within the legal system. AC.. 98

The necessity of the attorney-client privilege is demonstrated by the enormous power—and its potential for abuse—yielded by the prosecutor and the grand jury. AC..................................................................98

The attorney-client privilege ensures faith in the attorney as well as faith in the legal system as a whole. AC..............................................................................................................................................................99

The nature of the cases in the criminal justice system necessitates the privilege. AC............................100



The attorney-client privilege supports the rule of law. CFS....................................................................101

The crime-fraud exception in the attorney-client privilege is good for maintaining the rule of law. CFS.................................................................................................................................................................102

Ensuring the legal use of the privilege is very important. CFS...............................................................102

Insurance lawyers should take advantage of the attorney-client privilege. CFS.....................................103

Insurance lawyers can help maintain the privilege. CFS.........................................................................103

Upjohn CO. v. United States. CFS..........................................................................................................104

Attorney-client privilege is necessary for truthful communication experts. PNG..................................104

Lawyers have an ethical duty to maintain attorney-client privilege. PNG..............................................105

Lawyers in the adversary system are more faithful to their client. PNG.................................................105

Some Values in Legal System Override Truth................................................................................................106

Examples of parts of our legal system we keep even though they can impede truth-seeking.................106

Truth-seeking doesn’t guarantee legal justice. TF...................................................................................106

Historical Example of Prioritizing Protecting the Innocent over Punishing the Guilty. ABB................107

Refutation of Attempt to Equate Significance of Punishing Innocents and Releasing Criminals. ABB 107

Justification for Focusing System on Preventing Wrongful Convictions, Even if More Criminals Go Free. ABB................................................................................................................................................108

Innocent Until Proven Guilty Overrides Pure Justice Seeking. ABB.....................................................109

Refutation of Consequentialist Argument for Accepting Punishment of Innocents. ABB.....................109

Current Tendency to Err on Side of Convicting Guilty in US Courts. ABB...........................................110

Statistical Analysis of Wrongful Convictions in US. ABB.....................................................................111

Bias Toward Conviction Built into US Death Penalty System. ABB.....................................................111

Right to Equality Under the Law often Denied to Those Accused of Capital Crimes. ABB..................112

Presumption of Innocence Preempts Truth Seeking. ABB.....................................................................113

Client Privilege comes a priori. TF..........................................................................................................113

Attorney-Client Privilege Gets Truth Best......................................................................................................114

By letting defendants use honest, nuanced defenses instead of untruthful, outright denials, Attorney-client privilege decreases perjury DC......................................................................................................114

The US Adversarial Criminal Justice System Minimizes Error ABB.....................................................115



Full disclosure encourages accurate legal advice and representation. AC..............................................116

The attorney-client privilege produces reliable results . AC...................................................................117

The privilege is the basis of law and has legal importance. CFS............................................................117

The attorney-client privilege encourages clients to make more moral decisions. CFS...........................118

Lawyers have a large influence on the moral decisions of their clients. CFS.........................................118

Lawyers will better guide their client’s decisions if the privilege protects more. CFS...........................119

The truth can still come out despite attorney-client privilege. PNG.......................................................119

Attorney-Client Privilege is vital for effective representation. PNG......................................................120

Attorney-Client Privilege Protects the Accused..............................................................................................121

Attorney-Client Privilege Lets Lawyers Effectively Advise their Clients ABB.....................................121

Revoking Attorney-Client Privilege Removes Protection from Self-Incrimination ABB......................121

Attorney-client privilege is not to blame for wrongful convictions. PNG..............................................122

Abolition of Confidentiality Requirement.......................................................................................................123

The confidentiality requirement should be abandoned because it is does not suppress relevant information and is unnecessary. CFS......................................................................................................123

Abolition of the confidentiality requirement would be beneficial for the attorney-client privilege and not hinder communication between the parties. CFS....................................................................................123

The abolition of the confidentiality requirement is not correlated to more fraudulent use of the privilege. CFS..........................................................................................................................................................124

Inquisitorial System Not Better.......................................................................................................................125

Adoption of an Inquisitorial System will not lead to more truth. PNG...................................................125

The inquisitorial system's benefits are overplayed. PNG........................................................................125

Judges make rushed judgments in the inquisitorial system. PNG...........................................................126

The inquisitorial system claims lower costs, but this only happens at expense of justice. PNG............126

The inquisitorial system does not make better use of experts than the adversarial system. PNG...........127

Attorney-Client Privilege Not Ultimately Confidential..................................................................................128

Attorney-Client Privilege is not as extremely limiting as it is commonly perceived to be. PNG...........128

Promises generate special moral obligations that operate on a prior level to all other rights and duties. BPG..........................................................................................................................................................129



There Is A Violation Of the Sixth Amendment if an Attorney Cannot Provide Adequate Representation. BPG..........................................................................................................................................................129

The attorney-client privilege does not mean the lawyer cannot stand witness: example of representing clients with competency issues. AC........................................................................................................130

Privacy rationale justifies attorney-client privilege. TF..........................................................................131

No legal body considers attorney-client privilege absolute. PNG...........................................................131

Attorney-client privilege is often too narrowly construed; it is in fact often loosely applied. PNG.......132

Protecting Attorney-Client Privilege Preserves Government Legitimacy.......................................................133

Disregarding attorney-client privilege is a form of government coercion. TF........................................133

Terrorism exception to attorney-client privilege undermines justice and may spread. TF.....................133

Procedural justice trumps decision-making in courts – attorney-client privilege upholds. TF...............134

Procedural justice builds public trust and court legitimacy – attorney-client privilege upholds. TF......134

Supreme Court recognized the despotism of the law in the absence of the attorney-client privilege. AC..................................................................................................................................................................135

Attorney-Client Privilege Protects Communication........................................................................................136

Communication is core to preserving relevant legal information – attorney-client privilege preserves communication. TF..................................................................................................................................136

The way business and the legal profession operates today provides more justifications for the type of communication promoted by the attorney-client privilege. AC..............................................................136

The attorney-client privilege’s confidentiality requirement should protect more. CFS..........................137

Without confidentiality the privilege becomes useless. CFS..................................................................138

Constitutional Basis for Attorney-Client Privilege..........................................................................................139

5th Amendment basis for attorney-client privilege. TF............................................................................139

6th Amendment basis for attorney-client privilege. TF............................................................................140

Attorney-client privilege is key to upholding the reason a right to counsel is provided. AC.................141

The privilege prevents the state from infringing upon personal freedom. AC........................................141

The attorney-client privilege is an extension of the constitutional right against self-incrimination. AC..................................................................................................................................................................142

Pro Counters........................................................................................................................................................143

A2- Utilitarianism Justifies The Attorney-Client Privilege.............................................................................144



Utilitarianism can’t independently justify the attorney-client privilege. Looking to the moral worth of the privilege is just as important. CFS...........................................................................................................144

A2- Clients Won’t Communicate With Attorneys..........................................................................................145

Clients would continue to use lawyers and disclose information if the privilege was abolished or not recognized. CFS.......................................................................................................................................145

More Attorney-Client trust and communication is insufficient to defend the attorney-client privilege. AC............................................................................................................................................................146

A2- The Privilege Makes Clients Unlikely To Withhold Information............................................................147

Clients will still withhold relevant information even under the privilege. CFS......................................147

A2- Confidentiality Helps Communications...................................................................................................148

The attorneys are more concerned with confidentiality than the clients are which proves that confidentiality does not help communications. CFS...............................................................................148

A2- Empirical Studies......................................................................................................................................149

The majority of studies are flawed because lawyers have an incentive to exaggerate about the privilege. CFS..........................................................................................................................................................149

The attorney-client privilege is not correlated to better investigations or truth-finding. CFS................149

A2- Attorney Client Privilege Allows More People To Go Free....................................................................150

Attorney-Client Privilege Applies to Terrorists. This is especially true if you negate because truth seeking will no longer be the most important part of trials involving terrorists and attorney-client privilege will have to be given. BPG.......................................................................................................150

Con Counters.......................................................................................................................................................153

A2 Role Of The Criminal Justice System is To Find Truth............................................................................154

The type of truth that overrides the attorney-client privilege is not one we should endorse. BPG.........154

Searching For Truth Makes No Sense in the Criminal Justice System. BPG.........................................155

There Are Multiple Types of Truth in the Criminal Justice System. BPG..............................................156

Cross-examination is the best tool for truth-seeking – violating attorney-client privilege not necessary. TF.............................................................................................................................................................156

A trial is not always about guilt or innocence; there are other complexities involved that increases the importance of the privilege. AC..............................................................................................................157

Truth is important to the Criminal Justice System, but it is not the most important value. BPG............158

A2 The Attorney-Client Privilege May be Abused.........................................................................................159



Different checks on the privilege have been put over time. AC..............................................................159

A2 Utilitarianism Affirmative.........................................................................................................................160

Utilitarianism justifies preserving attorney-client privilege. TF.............................................................160

A2 Work-Product Doctrine as Alternative......................................................................................................161

Work-Product Doctrine practice on the decline. TF................................................................................161

Fiduciary Exception weakens work-product doctrine. TF......................................................................161

Contentions..........................................................................................................................................................163

Pro Case...........................................................................................................................................................164

Introduction:................................................................................................................................................164

Contention One: Truth-seeking is necessary for true justice.......................................................................165

Contention Two: The protection of innocents is of utmost importance in our criminal justice system......166

Contention Three: When attorney-client privilege leads to the conviction of innocents, it must be subject to the higher value of truth-seeking.................................................................................................................167

Con Case..........................................................................................................................................................168

Introduction:................................................................................................................................................168

Framework:..................................................................................................................................................168

Contention One:...........................................................................................................................................169

Contention Two:..........................................................................................................................................169

Contention Three:........................................................................................................................................170


November/December 2013 Defend Your Source

Defend Your SourceAuthors

Fred ZachariasProfessor at the University of San Diego School of Law and scholar in legal ethics.

Geoffrey Cornell Hazard Jr.Trustee Professor of Law at the University of Pennsylvania Law School and the Thomas E. Miller

Distinguished Professor of Law at the University of California's Hastings College of the Law.

Peter JoyProfessor of Law at Washington University in St. Louis and director of the school’s criminal justice clinic.

Robert MostellerJ. Dickson Phillips Distinguished Professor of Law at the University of North Carolina at Chapel Hill.

Robert YoungProfessor of political science at the University of Texas at Arlington.

Vidar HalvorsenNorwegian Professor of Law whose work focuses on ethics in criminal law.

Wu Shan-ShanChina University of Political Science and Law/University of Arizona.

Susan BandesDistinguished research Professor, DePaul University College of Law.

Kenneth Duvall



Graduate of University of Virginia School of Law.

Raymond TittmanPublished legal analyst, cites 30+ official legal cases.

Laurence Steckman/Richard GranofskyPartners in New York office of Lester Schwab Katz & Dwyer, LLP.

Edward J. ImwinkelriedProfessor of Law, UC Davis School of Law, most cited legal academic in the country in the area of

Evidence law.

Keith FindleyB.A. 1981, Indiana University. J.D. 1985, Yale Law School. Teaches at University of Wisconsin Law

School

Thomas WeigandProfessor of Criminal Law, University of Cologne (Germany), member of the Board of Editors of

the Journal

Stephen P. HurleyUniversity of Illinois College of Law, Champaign, Illinois, J.D. Knox College, Galesburg, Illinois, B.A

Paul R. Rice



Professor of Law, American University Washington College of Law. He has ruled upon thousands of privilege claims as a special master in the government’s divestiture action against American Telephone

and Telegraph, as well as private antitrust and patent infringement actions.

Elizabeth G. ThornburgAssociate Professor of Law, Southern Methodist University. B.A., College of William and Mary, J.D.,

Southern Methodist University.

Daniel NorthropJ.D. Candidate, 2010, Fordham University School of Law.

Alan J. MeeseA.B., The College of William and Mary in Virginia; J.D., The University of Chicago. The author, a

member of the Virginia Bar, is a Law Clerk to Judge Frank H. Easterbrook of the United States Court of Appeals for'the Seventh Circuit.

Gregory C. Sisk and Pamela J. AbbateOrestes A. Brownson Professor of Law, University of St. Thomas School of Law

J.D. Candidate, 2009, University of St. Thomas School of Law

Cary BrickerLecturer in Law, University of the Pacific, McGeorge School of Law. J.D., 1983, Boston University;

B.A., 1978, University of Rochester. Former Federal Defender in New York, NY.



Christopher Whelan and Ziv NetaAssociate Director, International Law Programmes and Member, Faculty of Law, University of Oxford; Visiting Professor of Law, Washington & Lee University School of Law; Barrister, 3 Paper Buildings,

Temple, LondonDirector, The Cegla Clinical Law Programs, The Buchmann Faculty of Law, Tel Aviv University

Marcus BerghahnUniversity of Wisconsin Law School, University of Wisconsin Madison

Sara Jane Shanahan– Partner at the law firm Sherin & Lodgen

–

Stephen M. Forte- Mr. Forte is a member of the Board of Directors of Metropolitan Atlanta Chamber of Commerce, the

Board of Directors of Central Atlanta Progress, Atlanta Legal Aid Society, Lawyers Foundation of Georgia, National Diocesan Attorneys Association, Emory University Board of Visitors, Leadership

Atlanta Class of 2004 and the International Bar Association. Prior to joining Smith, Gambrell & Russell, he was a Special Assistant to the Attorney General of Georgia for civil litigation matters.

-

Joel Kovel- From 1977 till 1983 he was Director of Residency Training, Department of Psychiatry, Albert Einstein College of Medicine (where he was also Professor of Psychiatry from 1979-1986). From 1980 to 1985, he was an Adjunct Professor of Anthropology at the New School for Social Research and from 1986-7 a

Visiting Professor of Political Science and Communications, University of California, San Diego. He also held short-term positions as a Visiting Lecturer at San Diego State University in the spring of 1990 and another Visiting Professor position at UCSD in Winter 1993. In 1988, Kovel was appointed Alger

Hiss Chair of Social Studies, a non-tenured position, at Bard College

Slavoj Žižek- a Slovene philosopher and cultural critic. He is a senior researcher at the Institute for Sociology and Philosophy,University of Ljubljana, Slovenia, international director of the Birkbeck Institute for the

Humanities and a professor of philosophy and psychoanalysis at the European Graduate School. In July 2013, he was appointed as an Eminent Scholar at Kyung Hee University, Republic of Korea. He writes

widely on a diverse range of topics, including political theory, film theory,cultural studies, theology and psychoanalysis.



Peter Thomas Geach- a British philosopher. His areas of interest are the history of philosophy, philosophical logic, and the

theory of identity. Geach was educated at Balliol College, Oxford. He taught at the University of Birmingham from 1951 until 1966 when he was appointed Professor of Logic in the Department

of Philosophyat the University of Leeds. Geach was given the title of Emeritus Professor of Logic on his retirement from Leeds in 1981. Geach was elected a Fellow of the British Academy (FBA) in 1965. He

has been awarded the papal cross "Pro Ecclesia et Pontifice" by the Holy See for his philosophical work.

Alasdair Chalmers MacIntyre- a Scottish philosopher primarily known for his contribution to moral and political philosophy but known also for his work in history of philosophy and theology. He is Senior Research Fellow at the

Centre for Contemporary Aristotelian Studies in Ethics and Politics (CASEP) at London Metropolitan University, and an Emeritus Professor of Philosophy at the University of Notre Dame. During his

lengthy academic career, he also taught at Brandeis University, Duke University, Vanderbilt University, and Boston University.

Herbert Lionel Adolphus Hart- an influential legal philosopher of the 20th century. He was Professor of Jurisprudence at Oxford

University and the Principal of Brasenose College, Oxford. His most famous work is The Concept of Law (1961).

Yonah Alexander- an author and lecturer who specializes in Terrorism. He received his PhD from Columbia University,

an MA from the University of Chicago (MA), and his BA from Roosevelt University of Chicago. He has founded and edited the journals Terrorism An International Journal in 1977, International Journal on

Minorities and Group Rights.

Alan Morton Dershowitz- an American lawyer, jurist, and political commentator. He is a prominent scholar on United States constitutional law andcriminal law. He has spent most of his career at Harvard Law School where in

1967, at the age of 28, he became the youngest full professor of law in its history. He has held theFelix Frankfurter professorship there since 1993.Dershowitz is known for his involvement in several high-

profile legal cases and as a commentator on the Arab–Israeli conflict. As a criminal appellate lawyer, he has won 13 of the 15 murder and attempted murder cases he has handled, and has represented a series of celebrity clients, including Mike Tyson, Patty Hearst, and Jim Bakker His most notable cases include his

role in 1984 in overturning the conviction of Claus von Bülow for the attempted murder of his wife, Sunny, and as the appellate adviser for the defense in the O.J. Simpson murder trial in 1995



Martin McLaughlin– University of Wisconsin-Madison, B.S. Boston University, J.D.

Bryan K. Gouldis a member of the New Hampshire and Nevada bars, and he is admitted to practice before the United States Courts of Appeals for the First and Ninth Circuits and the United States District Courts for the Districts of New Hampshire, Vermont, and Nevada. Bryan earned a B.S. (cum laude) from Utah State

University and a J.D. from the University of Utah College of Law.

Philip R. Braley- JD, University of Virginia (1992). BA, summa cum laude, Boston University (1989)

Deborah L. Rhode- Ernest W. McFarland Professor of Law and Director, Keck Center on Legal Ethics and the Legal

Profession, Stanford Law School. B.A. (Yale University), J.D. (Yale Law School).

Paul D. Paton- Fellow, Keck Center on Legal Ethics and the Legal Profession, and J.S.D Candidate, Stanford Law

School. He is also a lawyer with PricewaterhouseCoopers LLP in Toronto, Canada. B.A. (University of Toronto), M.Phil (Cambridge), LL.B (Toronto), J.S.M (Stanford).

Pierre-Félix Guattari- a French militant, an institutional psychotherapist, philosopher, and semiologist; he founded

both schizoanalysis and ecosophy. Guattari is best known for his intellectual collaborations with Gilles Deleuze, most notably Anti-Oedipus (1972) and A Thousand Plateaus (1980), the two volumes

of Capitalism and Schizophrenia

Antonio Negri- Italian Marxist sociologist and political philosopher, best known for his co-authorship of Empire, and secondarily for his work on Spinoza. Born in Padua, he became a political philosophy professor in his

hometown university. Negri founded the Potere Operaio (Worker Power) group in 1969 and was a leading member ofAutonomia Operaia.[1] As one of the most popular theorists of Autonomism, he has

published hugely influential books urging "revolutionary consciousness."

Arnold Silvermanis a member of Eckert Seamans Cherin and Mellon.

Camile Duboseis a 38th District Judge in Texas.

David Seide



is a counsel in the securities department of Wilmer Cutler Pickering Hale and Dorr LLP.

Douglas Hinsonis an associate at Alston & Bird LLP.

James Lennertzis an associate professor at Lafayette College.

John W. Allenis a partner in the law firm of Varnum Riddering Schmidt & Howlett LLP.

Kenneth J. Withersis a Research Associate at the Federal Judicial Center, Washington D.C. and a Ph.D.candidate in Law

and Information Studies at the University of Wales, Aberystwyth.

The Honorable Paul W. Grimmis the Chief United States Magistrate Judge for the United States District Court for the District of

Maryland.

Roger K. Warrenbecame the president of the National Center for State Courts in 1996, leaving behind a successful career

as a trial judge in California.

Douglas RichmondDouglas Richmond is Managing Director in the Professional Services Group of Aon Risk Solutions in Chicago. Aon’s Professional Services Group is the world’s largest broker of insurance for law firms.

Doug consults with Aon’s 275+ large law firm clients on professional responsibility and liability issues, and additionally leads PSG’s global claims operations.

Gerald WalpinAttorney, served as Inspector General for the Corporation for National and Community Service

C. Ronald HuffC. Ronald Huff is Professor Emeritus of Criminology, Law and Society and previously served as Dean (1999 - 2009) of the School of Social Ecology at UCI. He is also Professor Emeritus in the John Glenn

School of Public Affairs at The Ohio State University

Robert Johnston



J.D., New York and U.S. District Courts for the Eastern and Southern Districts of New York.

Ronald J. AllenProfessor Allen is the John Henry Wigmore Professor of Law at Northwestern University, in Chicago, IL. He

did his undergraduate work in mathematics at Marshall University and studied law at the University of Michigan. He is an internationally recognized expert in the fields of evidence, criminal procedure, and

constitutional law. He has published seven books and over 100 articles in major law reviews. He has been quoted in national news outlets hundreds of times, and appears regularly on national broadcast media on matters

ranging from constitutional law to criminal justice. The New York Times referred to him as one of nation’s leading experts on constitutional law and criminal procedure. He has worked with various groups in China to help formulate proposals for legal reform, and he was recently retained by the Tanzanian Government to assist

in the reform of their evidence law.

Mark F. GradyGrady is a founding trustee of the American Law and Economics Association and the author of numerous books and articles on torts, intellectual property, antitrust, law and economics, and law and biology. He has served as a consultant to President Ronald Reagan, presented policy papers at President William J. Clinton’s White House,

lectured to United States federal judges, given seminars to Congressional staff members, spoken to House leaders from the floor of the U.S. House of Representatives, and testified to Congressional committees.

Glen P. BelvisMr. Belvis is a Master in the Richard Linn Inn of Court, is the Chairperson of the DePaul Law School IP

Advisory Board, and is a Fellow in the Congress of Fellows for the Center for International Legal Studies. He has testified as an expert witness on patent and trade secret matters in U.S. and foreign litigations. He has

lectured on patent related matters at Oxford University, the University of Illinois, Peking University, and the University of British Columbia. He has been repeatedly recognized as an Illinois Super Lawyer and as a

Leading Intellectual Property Lawyer by the Leading Lawyers Network. He is the former editor of Aspen's Annual IP Update and Clark Boardman's Licensing Law and Business Report.

Daniel R. FischelDaniel Fischel received his JD cum laude from the Law School in 1977. He was Comment Editor of the Law

Review and was elected to the Order of the Coif. Following his graduation, he clerked for Thomas E. Fairchild,



chief judge of the U.S. Court of Appeals for the Seventh Circuit. He joined the faculty at the University of Chicago Law School in 1984.

Allan R. KidstonFouder of Kidston and Company, President and CEO of Resources Planning Corporation. Educated at the

University of Massachusetts, Amherst.



Robert S. SummersRobert S. Summers is a well-known expert for his work in contracts, commercial law, and jurisprudence and

legal theory. His treatise on the Uniform Commercial Code, coauthored with Professor James White, is the most widely cited on the subject. Other influential works by Professor Summers include texts on legal realism, form and substance in the law, and on statutory interpretation. He has served as official advisor both to the Drafting Commission for the Russian Civil Code and to the Drafting Commission for the Egyptian Civil Code, and he has lectured annually on jurisprudence and legal theory in Britain, Scandinavia, and Europe. Before retiring

after a 42 year career at the Law School, Professor Summers taught contracts and American legal theory.

James E. Moliterno is the Vincent Bradford Professor of Law at Washington & Lee University.



Organizations International Center for Transitional Justice

United Nations affiliate, international non-profit organization specializing in the field of transitional justice.

The AtlanticAmerican magazine founded in 1857, has a national reputation for reporting on foreign affairs, politics,

and the economy.

The National Center For Victims of CrimeThe National Center for Victims of Crime is a nonprofit organization that advocates for victims' rights, trains professionals who work with victims, and serves as a trusted source of information on victims'

issues.

Oxford University PressNews outlet associated with a prestigious University.

John T. Floyd Law FirmA reputable Houston Criminal Defense Lawyer.

Merriam-WebsterHas been a respected American dictionary since its inception in 1828.

American Bar Association



A voluntary bar association of lawyers and law students. The ABA's most important stated activities are the setting of academic standards for law schools, and the formulation of model ethical codes related to

the legal profession. The ABA has 410,000 members.


November/December 2013 Definitions

DefinitionsDefinition of the Criminal Justice System. BPG.

National Center for the Victims of Crime, 2008. “The Criminal Justice System.” 2008. http://www.victimsofcrime.org/help-for-crime-victims/get-help-bulletins-for-crime-victims/the-criminal-justice-system.

The criminal justice system is the set of agencies and processes established by governments to control crime and impose penalties on those who violate laws. There is no single criminal justice system in the United States but rather many similar, individual systems. How the criminal justice system works in each area depends on the jurisdiction that is in charge: city, county, state, federal or tribal government or military installation. Different jurisdictions have different laws, agencies, and ways of managing criminal justice processes.1 The main systems are:

State: State criminal justice systems handle crimes committed within their state boundaries.

Federal: The federal criminal justice system handles crimes committed on federal property or in more than one state.

Definition of Prosecutorial Misconduct. ABBJoy, Peter. “The Relationship Between Prosecutorial Misconduct and Wrongful

Convictions: Shaping Remedies for a Broken System.” Nov. 29, 2006. Washington University in St. Louis School of Law.

In Berger v. United States, Justice Sutherland defined prosecutorial misconduct as “overstepping the bounds of that propriety and fairness which should characterize the conduct of such an officer in the prosecution of a criminal offense.”6 In the decision, Justice Sutherland identified a laundry list of misconduct by the prosecutor at Berger’s trial including:

“misstating the facts in his cross-examination of witnesses; of putting into the mouths of such witnesses things which they had not said; of suggesting by his questions that statements had been made to him personally out of court, in respect of which no proof was offered; of pretending to understand that a witness had said something which he had not said and persistently cross-examining the witness upon that basis; of assuming prejudicial facts not in evidence; of bullying and arguing with witnesses; and in general, of conducting himself in a thoroughly indecorous and improper manner.”


http://www.victimsofcrime.org/help-for-crime-victims/get-help-bulletins-for-crime-victims/the-criminal-justice-system



November/December 2013 DefinitionsIn addition to the types of prosecutorial misconduct the Supreme Court identified in Berger, the Court has

identified other examples, including: prosecutors knowingly using perjured testimony,8 suppressing evidence

favorable to the accused that might have led to a not guilty verdict,9 and misstating the law in argument to the

jury.10

An understanding of prosecutorial misconduct will be necessary for this topic, as the ability of the accused to plan a defense jointly with an attorney is meant to compensate for this in the Untied States’ justice system. It creates a bias on both sides, which, in theory, balances out and promotes justice.

The Work-Product Doctrine is not part of Attorney-Client Privilege DCReport of the American Bar Association's Task Force on the Attorney-Client PrivilegeThe Business Lawyer, Vol. 60, No. 3 (May 2005), pp. 1029-1055 Published by: American Bar AssociationWhile the privilege and the work-product doctrine will often overlap in their protection, they are by no means coextensive. The work-product doctrine offers a broader protection than the privilege in that it can encompass not only communications, but also an attorney's thoughts, impressions, beliefs and materials. Despite being broader than the privilege in that respect, the work-product doctrine is only applicable to "work product" prepared in anticipation of litigation.

Use this when your opponents bring up cards, especially Supreme Court Cases, which talk about the work-product doctrine. Attorney-client privilege and this doctrine are often discussed together, but they are not the same thing.

Attorney-Client Privilege does not protect facts, only attorney-client communicationsReport of the American Bar Association's Task Force on the Attorney-Client Privilege

The Business Lawyer , Vol. 60, No. 3 (May 2005), pp. 1029-1055 Published by: American Bar Association

Further, it is crucial to remember that the privilege does not shut off access to facts within a party's possession. A party can be asked, "what did you observe?" or "what did you do?" The only type of question that the privilege forecloses, is, "What was your conversation with your lawyer?

This is a good thing to throw out there if you want to limit the perceived power of attorney-client privilege. For example, it would assist a negative claim that the privilege does not have much power to conceal otherwise convincing evidence.



The attorney-client privilege requires only the content of the communication stay confidential, not necessarily the facts. CFS

Rice, Paul R., Attorney-Client Privilege: The Eroding Concept of Confidentiality Should Be Abolished. Duke Law Journal, Vol. 47, #5, March 1998. http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1026&context=dlj

In all formal definitions of the attorney-client privilege, whether employed in state' or federal courts, the client or the attorney must communicate with the other in confidence, and subsequently that confidentiality must have been maintained. The content of the communication, as opposed to the facts communicated, must be secret. That is, communications between an attorney and client may be protected by the attorney-client privilege even though the facts communicated are publicly known, so long as the substance of what was said or written remains a secret.

Explanation Of When and How The Attorney-Client Privilege Comes to Exist. BPGStephen Forte, 2003. ” What the Attorney-Client Privilege Really Means.” 2003.

http://www.sgrlaw.com/resources/trust_the_ leaders/leaders_issues/ttl5/916/. We begin our analysis of the privilege with the obvious: before the privilege exists, there must be an attorney-client relationship. As elementary as this concept seems, many clients assume the relationship exists and mistakenly rely upon the protection of the privilege, but the privilege does not exist until the relationship is firmly established. Generally speaking, the attorney-client privilege does not take hold until the parties have agreed on the representation of the client.

In the majority of cases, the determination that the attorney-client relationship exists is not a laborious undertaking, for more often than not, the attorney has expressly acknowledged representation of the client. Such an express acknowledgment may be demonstrated by an engagement letter, a fee contract, or even an oral agreement as to the scope of the representation. An attorney-client relationship may also be expressly acknowledged by the "appearance" of the attorney on behalf of the client, including filing pleadings in court for the client, drafting documents on behalf of the client, or appearing in court as the representative of a litigant.11


http://www.sgrlaw.com/resources/trust_the_leaders/leaders_issues/ttl5/916/#fn:11

http://www.sgrlaw.com/resources/trust_the_%20leaders/leaders_issues/ttl5/916/

http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1026&context=dlj


Definition of Attorney-Client Privilege DCReport of the American Bar Association's Task Force on the Attorney-Client PrivilegeThe Business Lawyer , Vol. 60, No. 3 (May 2005), pp. 1029-1055 Published by: American Bar AssociationThe attorney-client privilege is a rule of evidence that protects the confidentiality of communications between an attorney and client. Its underlying purpose is to encourage persons to seek legal advice freely and to communicate candidly during consultations with their attorneys without fear that the information will be revealed to others. This enables clients to receive the most competent legal advice from fully informed counsel so that the client can fulfill his or her responsibilities under the law and benefit from the law's protection…the attorney-client privilege is an exception - albeit a very important exception - to the general principle that witnesses must provide relevant testimony in court proceedings.

Definition of Attorney-Client Privilege. BPGStephen Forte, 2003. "What the Attorney-Client Privilege Really Means." 2003.

http://www.sgrlaw.com/resources/trust_the_leaders/leaders_issues/ttl5/916/. Although there is no single authority on the attorney-client privilege, it has been defined as follows: "(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his [or her] capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his [or her] instance permanently protected (7) from disclosure by [the client] or by the legal adviser, (8) except the protection be waived."8

One federal judge opined that "[t]he privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client."9

No matter how the attorney-client privilege is articulated, there are four basic elements necessary to establish its existence: (1) a communication; (2) made between privileged persons; (3) in confidence; (4) for the purpose of seeking, obtaining or providing legal assistance to the client.10

You don’t always need the second part of the card about what is common between all definitions, but it is useful in definitional debates to establish what is necessary to any definition of attorney-client privilege.





http://www.sgrlaw.com/resources/trust_the_leaders/leaders_issues/ttl5/916/


Definition of Attorney-Client Privilege. PNGRaymond Tittman. May 29 2012. “Losing Confidence in Confidentiality: Do Expanding

Exceptions to the Attorney-Client Privilege Gut Its Purpose?” The Federal Society for Law and Public Policy Studies.

The purpose of the attorney-client privilege is:

to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice. The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer’s being fully informed by the client (pg. 1).1. As defined by Upjohn v. United States, 449 U.S. 383, 389(1981)

A definition such as this would support the argument that attorney-client privilege is actually more important for finding the truth/justice.

Attorney-Client Privilege rests on the assumption that it is not used to break the law DCReport of the American Bar Association's Task Force on the Attorney-Client PrivilegeThe Business Lawyer , Vol. 60, No. 3 (May 2005), pp. 1029-1055 Published by: American Bar AssociationThe protection afforded to the client by the privilege rests on the presumption that clients consult lawyers for the purpose of abiding by, rather than breaking, the law.

This is a good burden or centerpiece for the round. If the pro can take down the “presumption,” he/she might be able to win the round right there.



Attorney-Client Privilege does not permit lying DCA Positive Theory of the Attorney-Client Privilege and the Work Product DoctrineRonald J. Allen, Mark F. Grady, Daniel D. Polsby and Michael S. Yashko The Journal of Legal Studies , Vol. 19, No. 2 (Jun., 1990), pp. 359-397 Published by: The University of Chicago Press for The University of Chicago Law SchoolThe Supreme Court of the United States reached the same result in Nix v. Whiteside.37 In Nix, the defendant was charged with murder. During pretrial preparation, the defendant informed counsel that he committed the act out of self-defense. According to the defendant, he shot the victim as the latter "was pulling a pistol from underneath the pillow on the bed."38 On questioning by counsel, the defendant admitted he had not actually seen a gun, but asserted that he believed one was there. Immediately prior to trial, the defendant informed counsel that he was going to testify that he actually saw a gun. Counsel responded by informing the defendant that he would not permit the defendant to commit perjury, and that he would inform the court if the defendant attempted to do so. The defendant did not take the stand and was convicted. The Court rejected his argument that his rights had been violated, in part because the counsel had no choice but to do what he did. He could not facilitate the defendant's creation of a fraudulent claim.39 Thus, although the defendant wished to assert a contingent claim (self-defense), the Court would not allow him to use the privilege to cloak a dishonest contingent claim.

This can do very interesting things to the round, on both sides. On pro, you can construe a pro vote as the status quo, forcing the con to defend that we should favor truth-seeking less than we already do. On con, you could say either that truth-seeking and attorney-client privilege are not in conflict (and that thus a statement that one should “take precedence” would be nonsensical), or just say that the concealments of truth which do happen are negligible.

Exceptions to The Attorney-Client Privilege. BPG.Stephen Forte, 2003. ” What the Attorney-Client Privilege Really Means.” 2003.

http://www.sgrlaw.com/resources/trust_the_leaders/leaders_issues/ttl5/916/.

There are some public policy exceptions to the application of the attorney-client privilege. Some of the most common exceptions to the privilege include:

Death of a Client. The privilege may be breached upon the death of a testator-client if litigation ensues between the decedent's heirs, legatees or other parties claiming under the deceased client.



http://www.jstor.org/action/showPublisher?publisherCode=chicagolaw

http://www.jstor.org/action/showPublisher?publisherCode=ucpress

November/December 2013 DefinitionsFiduciary Duty. A corporation's right to assert the attorney-client privilege is not absolute. An exception to the privilege has been carved out when the corporation's shareholders wish to pierce the corporation's attorney-client privilege.

Crime or Fraud Exception. If a client seeks advice from an attorney to assist with the furtherance of a crime or fraud or the post-commission concealment of the crime or fraud, then the communication is not privileged. If, however, the client has completed a crime or fraud and then seeks the advice of legal counsel, such communications are privileged unless the client considers covering up the crime or fraud.

Common Interest Exception. If two parties are represented by the same attorney in a single legal matter, neither client may assert the attorney-client privilege against the other in subsequent litigation if the subsequent litigation pertained to the subject matter of the previous joint representation.

You don’t need to read every part of this card every round. Pick and choose the exceptions that are pertinent to the specific round.

Truth-seeking spans a range of activities. TF.International Center for Transitional Justice (2013). Truth and Memory. Repressive regimes deliberately rewrite history and deny atrocities to legitimize themselves. Truth-seeking contributes to the creation of a historical record that prevents this kind of manipulation. It can help victims find closure by learning more about the events they suffered, such as the fate of disappeared individuals, or why certain people were targeted for abuse. Truth-seeking initiatives take many forms—including freedom of information legislation, declassification of archives, investigations into the missing and disappeared—and the establishment of non-judicial commissions of inquiry, including truth commissions.

Attorney-client privilege includes relationship and communication. TF.Silverman, Arnold (1997). Silence is Golden -- The Attorney-Client Privilege. JOM

Journal, 49 (6).Generally, in order for the attorney-client privilege to apply, there must be an attorney-client relationship and the communication must be made by the client in confidence for the purpose of obtaining legal advice. It does not matter whether the information is communicated orally, in writing, or by nonverbal communication, such as nodding the head. The privilege also applies to information provided by the attorney to the client. Not only must there be an attorney-client relationship, but the communication must be related to the seeking of legal advice. As a result, it might be concluded that communications do not fall within the scope of the attorney-client privilege based on the extent to which the client is seeking business advice or


November/December 2013 Definitionstechnical advice. Also, because the communications must be in confidence, if a third party not having a common interest is allowed to be present during the communications or if it is intended that the communications be delivered to a third party, the attorney-client privilege will not apply.

Good card restricting scope of attorney-client privilege – can be used on either side.

Attorney-client privilege isn’t clearly defined in the status quo. TF.Hely, James (2008). How Private is the Attorney-Client Privilege. New Jersey Lawyer

Magazine, 251.In Thomas v. Toys ‘R’ Us, Inc., the plaintiffs appealed what they felt was a poor verdict, and raised at least 11 issues on appeal. In one paragraph, the decision discussed the plaintiffs’ objection to “when defense counsel asked when she filed the complaint against defendant.” At trial, the plaintiff’s counsel argued this line of questioning invaded the attorney-client privilege and involved a statute of limitations issue.” The trial court responded by limiting the question “to when plaintiff hired her attorney.” The Appellate Division ruled: “We find no error here. It was certainly not a focal point of the case, and had some bearing on plaintiffs’ motivations and credibility.” The opinion did not explore in greater detail the attorney-client privilege, Rule of Evidence 504, or N.J.S.A. 2A:84A-20. The appellate court did not reverse the trial court’s evidence ruling. The Appellate Division in Thomas specifically noted that unless a judge’s decision on evidence creates a manifest denial of justice, the trial court’s decision will stand. The Thomas opinion raises additional legal questions for contemplation. How exactly does seeking counsel for a legal problem have bearing on a person’s “motivations and credibility?” Does this mean that even considering a claim for property damage, or any other kind of damage, or trying to find out how the medical bills will be paid, has bearing on one’s “motivations and credibility?” The issue is in need of additional study and development. How admissible should such evidence be? Even if it is admissible, should such evidence be deemed relevant? In a case where this issue arises, counsel on both sides should fully analyze, brief and argue the subject in a pretrial motion after it has come up in a deposition. That way, the attorney-client privilege issues, the hearsay issues, the discoverability issues, and relevance issues can be carefully evaluated by a thoughtful judge.

Can be used as counter to opponents seeking to restrict attorney-client privilege to specific points.



Attorney-client privilege is based on utilitarian calculations – not absolute. TF.Dubose, Camile (2004). The Attorney as Mandatory Reporter. State Bar of Texas.Evidentiary privileges, such as the attorney-client privilege, were initially justified as a means of preserving the honor of those entrusted with confidential communications. The honor justification was quickly replaced by a utilitarian justification. Professor John. H. Wigmore intended these justifications to entail a balancing analysis between the overall benefit derived from the preservation of confidential communications against the overall cost of maintaining a privilege to the legal system. Courts have applied a cost-benefit analysis to the attorney-client privilege. In Ford Motor Co. v. Leggat, the Supreme Court of Texas stated, “the purpose of the privilege is to ensure the free flow of information between attorney and client, ultimately serving the broader societal interest of effective administration of justice.” The Court further hails the importance of the privilege in Upjohn Co. v. U.S., stating that “sound legal advice or advocacy serves public ends and. … such advice or advocacy depends upon the lawyer’s being fully informed by the client.

Justifies utilitarian cases – should be used as framework.

Technology complicates the attorney-client privilege. Most communications via technology will not be protected. CFS

American Bar Association, Cloud Risks: Technology Use Tests the Attorney-Client Privilege, March 2012. Available at: http://www.americanbar.org/newsletter/publications/youraba/201203article02.html

Maintaining attorney-client privilege has become increasingly complicated with the rise in cloud computing, social media and the use of mobile devices, according to panelists at an American Bar Association Midyear Meeting session Feb. 3 on “Attorney-Client Privilege and ESI: How to Maintain Privilege ‘In the Cloud.’” While the technologies offer new ways for lawyers and their clients to communicate, they also pose unique problems for preserving confidentiality… Use of social media to communicate with lawyers also has implications on privilege. Recent decisions underscore that communications on social sites are not privileged because posts are made in a public forum… The line between privileged and non-privileged communication is somewhat more complicated to determine when clients and their lawyers communicate via smartphones and other mobile devices… “People have had these scenarios, where they’re having administrative hearings over the telephone and they’re emailing their client simultaneously or communicating simultaneously behind the scenes, which is sort of a third-party communication,” said Patricia Eastwood, of Caterpillar Financial Services, emphasizing the need for more awareness when communicating. “We don’t even think about how we’re communicating anymore and we’re creating documents and it has all kinds of implications.”


http://www.americanbar.org/newsletter/publications/youraba/201203article02.html

November/December 2013 DefinitionsUnited States v. Kovel. TF.

Hartman, Michael (2008). Yes, Martha Stewart Can Even Teach us About the Constitution: Why Constitutional Considerations Warrant an Extension of the Attorney-Client Privilege in High-Profile Criminal Cases. University of Pennsylvania Journal of Constitutional Law.

The grandfather of the public-relations privilege cases is undoubtedly United States v. Kovel, a case decided by the Second Circuit over forty years ago. Louis Kovel, a former IRS agent, appealed a sentence for criminal contempt that he received for his refusal to answer several questions asked during grand jury proceedings. He was before the grand jury to provide testimony regarding alleged tax violations by a client of his employer, a law firm. After two days of continued refusal to answer any of the questions posed to him, Kovel was held in contempt, sentenced to a year in prison, and denied bail. On appeal, Judge Friendly began his analysis by stating that: Nothing in the policy of the privilege suggests that attorneys, simply by placing accountants, scientists or investigators on their payrolls and maintaining them in their offices, should be able to invest all communications by clients to such persons with a privilege the law has not seen fit to extend when the latter are operating under their own steam. However, he then noted that “the complexities of modern existence” made it impossible for attorneys to adequately counsel clients without the assistance of certain indispensable employees. As an example, Judge Friendly noted the need for a translator in the case of a foreign-language-speaking client, and identified four manners in which the three-person communications could take place. Each hypothetical communication, Judge Friendly argued, would fall within the boundaries of “Wigmore's famous formulation” of the attorney-client privilege.

The attorney-client privilege is important and functions as a property right. CFSMeese, Alan J., "Inadvertent Waiver of the Attorney-Client Privilege by Disclosure of

Documents: An Economic Analysis" (1990). Faculty Publications. Paper 539. http://scholarship.law.wm.edu/facpubs/539

The attorney-client privilege is a type of property right which encourages the production of useful information, facilitating the rule of law. The privilege is especially important at the planning stage, before litigation takes place. At this stage, parties must have the liberty of exchanging information with their attorneys in order to know the law and abide by it. This is especially so for a large corporation governed by complex rules in the pervasively regulated administrative state.


http://scholarship.law.wm.edu/facpubs/539

November/December 2013 Topic Analysis

Topic AnalysisTommy Fang

Resolved: In the United States criminal justice system, truth-seeking ought to take precedence over attorney-client privilege.

Yet another criminal justice topic from the writers of LD. A general overview of terms can be found in the definition section, but briefly breaking down the topic - the actor in the resolution is the United States federal government with inherent values of either justice or societal welfare. Truth-seeking in this context entails seeking actual verdicts representative of a crime that’s happened – cases on this topic will likely focus on extreme examples, such as murder, rather than petty crimes. Attorney-client privilege, a part of due process not explicitly mentioned in the constitution, is a privilege of confidentiality, allowing conversations between the accused and their lawyer to remain in secret. Challenges to the attorney-client privilege have arisen over past years and the privilege isn’t absolute (read into waivers of attorney-client privilege).

Affirmative and Negative Burdens

The burden of the AFF is much easier for this topic. The debater doesn’t necessary have to advocate complete truth-seeking or an overhaul of the attorney-client privilege, but simply that truth-seeking must “take precedence”. As to the degree of precedence AFF must prove, that’s up to the framework debate.

The burden of the NEG isn’t to discredit truth-seeking, an almost impossible task, but to defend attorney-client privilege to its fullest extent. The NEG position is much more varied and can take a variety of forms discussed later in the topic analysis. These positions include valuing attorney-client privilege as absolute or proving that attorney-client privilege doesn’t inhibit truth-seeking.

General Framework

Framework will be essential in this debate, even more so than with other topics. The scope and extent of truth-seeking, a very broad term, will be important, as will the status quo state of attorney-client privilege. More central to the debate however, will be the question of “what is justice?”

So what is justice? A good framework for the AFF would be to frame justice as “seeking truth”, a very literal interpretation of the resolution. The AFF can argue that the point of the justice system, historically and more importantly, morally, is to seek truth – to accuse the guilty and to protect the innocent. A case can then easily arise that attorney-client privilege hinders truth-seeking; thus, it should be diminished.

What is justice for the NEG? Justice for the converse shouldn’t focus on results, but more so, on the process. Our justice system is based on the philosophy of “innocent until proven guilty”, demonstrating American law


November/December 2013 Topic Analysisnot as a seeker of results, but as fair. Constitutional procedures such as due process ensure fairness of trials, not much unlike attorney-client privilege, and taking away these failsafes may be an even bigger violation of justice than truth-seeking. NEG is ultimately deontological.

One last point on framework. The actual implementability of a system either without or with diminished attorney-client privilege will inevitably come up during the debate. Try and stay away from this self-fulfilling prophecy on both sides, as the debate will inevitably devolve into a mess of arguments without any substantial education gained. Argue more on philosophy rather than examples – there really aren’t that many real-world instances of attorney-client privilege being overhauled.

Value/Criterion Pairs

The default value on this topic is either justice or societal welfare. Not a huge debate here.

In terms of viable criterions, for the AFF, protecting the innocent or restoring societal justice seem to be viable options. A criterion of upholding the current justice system paired with a case of truth as the fundamental aspect of American law would work very well. Many alternatives to attorney-client privilege also exist, so using an alternative inquisitorial system with a matching criterion could justify a more plan-based case.

As for NEG criterions, protecting procedural justice, the processes of the American legal system, such as due process, that ensures fairness, seems like the broadest criterion that could encompass a variety of different cases. A trickier approach would be to value something related to “truth-seeking”, an AFF position, and somehow prove that upholding attorney-client privilege better achieves this (for advanced debaters, think of “case turn”). In addition, some constitutionality and governmental legitimacy cards listed in the CON evidence of this issue could imply a upholding constitution or upholding governmental legitimacy criterion.

Note to AFFsSpend a lot of time of framework, really laying down the terms of the resolution before you present your actual case. FORCE the negative side to contest your framework – if nothing else, it’s a time suck. Allow yourself some breadth; you’re not getting rid of attorney-client privilege, just devaluing its purpose in the justice system. Finding truth is very hard to argue against, so pound that point home as a central argument you can structure your case around.

Note to NEG’s

Make sure you restrict the AFF to specifics early in the round. It’s going to be hard to argue against finding the truth if the AFF has pinned you a faulty legal system. NEG position are a lot more varied than AFF positions, so spend a lot of time on preparing counters to common AFF arguments. I would suggest writing two cases for this topic: a conventional NEG case and then an off-the-wall case used either with more progressive judges or a much-better opponent you want to take a gamble with.


November/December 2013 Topic Analysis


Pro Evidence


November/December 2013 Pro: Truth at center of court sys

Truth-Finding is at center of court system Truth-finding increases confidence in court system

Law and Philosophy , Vol. 18, No. 5, Laws, Facts, and Values (Sep., 1999), pp. 497-511 Also, without judicial findings of fact that generally accord with truth, citizens would, over time, lose confidence in adjudicative processes as fair and reliable tribunals of justice and as effective means of dispute resolution, both in civil and criminal cases. Interestingly, this would be undesirable also because it might lead to more litigation rather than less, for fewer parties would fear that truth adverse to their positions would come out in court proceedings, and so would be less disposed to settle out of court. Thus, in general, and without more, a legal finding of fact in a court proceeding should accord with the actual truth

This will be a good turn against the con point that people need the privilege in order to be confident in their lawyer, or to feel comfortable dealing with the law. You’d say that people would feel even worse talking to their lawyer if the system did not consistently find the truth

Defendant still maintains individual rights with a truth-seeking focus. PNGWu Shan-Shan, China University of Political Science and Law, 2012, “The Search for

Truth in Criminal Process,” University of Arizona. <http://www.cesl.edu.cn/upload/201209206168631.pdf>

Before taking a closer look at the exact meaning of "truth," two caveats are in order with respect to the truth-orientation of the criminal process. Firstly, even if the establishment of the "truth" about the relevant events is one of the goals of any criminal process conducted by the state, this does not mean that every participant is individually obliged to actively take part in the search for truth.5 It is a sign of authoritarian systems that they espouse the idea that "we all want to find the truth" and thereby deny the defendant's right to stay aloof from the process or even to impede the truth-finding by holding back crucial evidence. Freedom-oriented procedural systems, by contrast, grant the defendant the option of withholding cooperation without adverse consequences. Secondly, there is consensus-even among those that emphasize the truth-finding function of the criminal process-that truth shall not be sought at any cost. All procedural systems recognize overriding concerns that restrict or prevent the admission of certain pieces of evidence even if they would be necessary for presenting relevant facts to the court.6 Human dignity (guaranteeing a core sphere of privacy) and professional secrecy are typical sources of such restrictions. Balancing such external interests against the overall interest in establishing the truth is particularly sensitive and important (pg. 1).


November/December 2013 Pro: Truth at center of court sys

The truth is crucial to ending cyclical crime. PNGEduardo Gonzalez and Howard Varney. 2013. “Truth Seeking: Elements of Creating an

Effective Truth Commission.” International Center for Transitional Justice (ICTJ). http://ictj.org/sites/default/files/ICTJ-Book-Truth-Seeking-2013-English.pdfEstablishing the truth about what happened and who is responsible for serious crimes helps communities to understand the causes of past abuse and end it. Without accurate knowledge of past violations, it is difficult for a society to prevent them from happening again. The truth can assist in the healing process after traumatic events; restore personal dignity, often after years of stigmatization; and safeguard against impunity and public denial. Establishing truth can initiate a process of reconciliation, as denial and silence can increase mistrust and social polarization. A political order based on transparency and accountability is more likely to enjoy the trust and confidence of residents and citizens (pg. 1).

Not valuing truth leads to false convictions. BPGKeith A. Findley, 2011 “Adversarial Inquisitions: Rethinking the Search for the Truth”;

New York Law School Law Review. http://www.nylslawreview.com/wordpress/wp-content/uploads/2012/02/Findley-article.pdf.

The current American system is marked by an adversary process so compromised by imbalance between the parties—in terms of resources and access to evidence—that true adversary testing is virtually impossible. It is a system in which competing litigants, unequal as they are, control everything from the investigation to presentation of the evidence, and in which their motivation in that process is to win, more than to discover the truth. So motivated, litigants coach witnesses, suppress facts, employ tricks and surprises, distort the truth, and manipulate fact finders. The result is a system that we now know, through the growing record of wrongful convictions, is prone to an unacceptably high rate of false convictions, as well as failures to convict the guilty.

Truth is Extremely Important. BPGThomas Weigend, 2011. “Should We Search for the Truth, and Who Should Do it?”

Archives of University of North Carolina Law School. http://www.law.unc.edu/components/handlers/document.ashx?category=24&subcategory=52&cid=978.


http://www.law.unc.edu/components/handlers/document.ashx?category=24&subcategory=52&cid=978

http://www.law.unc.edu/components/handlers/document.ashx?category=24&subcategory=52&cid=978

http://www.nylslawreview.com/wordpress/wp-content/uploads/2012/02/Findley-article.pdf

http://www.nylslawreview.com/wordpress/wp-content/uploads/2012/02/Findley-article.pdf

November/December 2013 Pro: Truth at center of court sysNone of the potential purposes of the criminal process can be reached unless the judgment has been based on a search for the truth. To reach any of its goals, the process must reflect an honest effort to determine what “really” happened. The truth evidently needs to be sought when “finding the truth” or achieving “truth and justice” are the declared goals of the criminal process. However, a successful restoration of “social peace” likewise presupposes that the relevant facts have plausibly been established; society cannot close the file on a disturbing incident unless convincing factual findings have been made by an agency with authority to do so. The importance of finding the “true” facts is demonstrated by the successful operation of Truth and Reconciliation Commissions5 and similar institutions. In order to achieve closure on traumatic events, it seems more important to determine and make public what actually happened than to impose criminal sanctions.

Truth-seeking inherently restores justice. TF.Rotberg, Robert (2000). Truth Commissions and the Provision of Truth, Justice, and

Reconciliation. Princeton University Press.Truth commissions, Kiss asserts, provide a mechanism to do justice to and to acknowledge that there were victims and perpetrators on more than one side. Commissions can be used in promising ways to advance beneficent societal goals despite competing narratives of oppression, and bitter, if opposite, memories of evil. If the goal is to reorient a society that has lost its moral way, truth commissions are more supple and constructive than criminal trials or forms of lustration (the banning of perpetrators from public office). There is positive value in what truth commissions seek, especially those like the Argentinean, the Chilean, and the South African versions—where the explicit goal was to restore a just society. Crocker’s transitional justice, like Kiss’s restorative justice, is general and expansive. Rather than confining transitional justice to penal or retributive justice, Crocker employs transitional justice to encompass compensatory and distributive justice. Wisely, he suggests that the challenge for a new democracy is to respond effectively to past evils without “undermining the new democracy or jeopardizing prospects for future development.”

Applies to values of justice and societal welfare for the AFF.

Truth-seeking upholds values of democracy. TF.Lerche III, Charles (1998). Truth Commissions and National Reconciliation: Some

Reflections on Theory and Practice. International Institute for Democracy and Electoral Assistance.

Truth commissions have emerged in most cases as part of transitions from some form of authoritarian government (military or civilian dictatorship, or minority rule) toward a more democratic political


November/December 2013 Pro: Truth at center of court syssystem in societies often characterized by serious divisions along class or communal lines. Richard Wilson (1998) describes them as “... post-war structures for publicly addressing unresolved issues arising from past human rights violations”, which “...typically consist of an investigative team with a mandate to take testimonies, corroborate evidence, document human rights abuses and make recommendations regarding structural reforms and reparations.” They have been established either through legislation or presidential decree to achieve a defined and delimited task, and they are dissolved once they have reported their findings. Truth commissions can be seen as important milestones on the road toward democracy. The extensiveness of a commission’s mandate, the thoroughness of and public support for its inquiries and the impact of its report (if any) are all indicators of the relative strength of the new political order. The data on various commissions presented in the Appendix reflects just how diverse national experiences with truth commissions, and related bodies, has actually been.

Applies to values of democracy for the AFF.

Truth comes a priori. TF.Ochieng-Odhiambo, Frederick (2010). Truth and the Client’s Interest. Philosophy Now

Magazine, 79.The purpose of the law courts, the backbone of the legal system, is first and foremost to establish whether the accused has actually done what they are alleged to have done. This is reflected by the fact that witnesses are required to take an oath that their testimony will be the whole truth and nothing but the truth. The principle of truth is therefore cardinal in the administration of the law. Whatever reasons may be offered for adopting this alternative, it does not augur well for justice. Adjusting the truth implies moving from truth to untruth; from ‘saying the whole truth’ to ‘saying less than the whole truth’. But in any meaningful conception of justice, the virtue of truthfulness is so cardinal that to negate or ignore it amounts to crippling justice. So for the sake of justice, the second alternative must be preferred, since it gives priority to the truth. The defense attorney is and remains an official of the law court, and he owes his highest duty to justice. His role is to present his client’s case as well as he possibly can; but the ideal goal of the legal process is to arrive at the truth, not to serve the selfish interests of the protagonists. The defense attorney should morally therefore never sell out truth to serve his client’s interest. However, the defense attorney who opts for the second alternative, of compromising his client’s interests, finds himself in an awkward situation. This is because, as an advocate for the client, the client’s interest is paramount. So a defense attorney is faced with an apparent dilemma when he is required to choose between truth and the client’s interest, but morally is required to promote both.

Framework argument.


November/December 2013 Pro: ACP Unnecessary

Attorney-Client Privilege is Unnecessary

Prosecutors can Prevent wrongful Convictions and Unfair Trials ABBJoy, Peter. “The Relationship Between Prosecutorial Misconduct and Wrongful

Convictions: Shaping Remedies for a Broken System.” Nov. 29, 2006. Washington University in St. Louis School of Law. (pg 406-407)

Even if public support for protecting the accused is ambivalent or weak, the Supreme Court has acknowledged

that “the moral force of the criminal law” relies on safeguards that keep the innocent from being convicted.35

From a practical perspective, this requires the prosecutor to monitor how the enormous resources of the government are used in each prosecution. In this role, the prosecutor has a duty to ensure that police investigators and government witnesses act properly and testify truthfully. Thus, the prosecutor bears oversight responsibility for procedures for searches, obtaining confessions, the making of eyewitness identifications,

introducing lab reports, and using jailhouse informants and other cooperating witnesses.36 The courts even give standing to the prosecutor in some instances to raise a claim that the defense counsel is failing to provide competent representation. For example, a prosecutor may raise a claim if a defense lawyer seeks to represent the

accused, but has a conflict of interest based on the representation of a codefendant or government witness.37

Practically speaking, the prosecutor is the first line of defense against many of the common factors that lead to wrongful convictions.38 The prosecutor’s supervisory authority to evaluate the quality and quantity of evidence holds the potential for assuring the accused both procedural and, when the accused is actually innocent, substantive justice. When prosecutors do not critically examine the evidence against the accused to ensure its trustworthiness, or fail to comply with discovery and other obligations to the accused, rather than act as ministers of justice, they administer injustice.



Many lower management employees are unaware of the privilege and do not use it. CFSThornburg, Elizabeth G., Sanctifying Secrecy: The Mythology of the Corporate Attorney-

Client Privilege. Notre Dame Law Review, Vol. 69, p. 158, 1993-1994. Available at SSRN: http://ssrn.com/abstract=1006313

The most recent empirical study of corporate attorney-client privilege was completed in New York City in the late 1980’s. The author surveyed 182 corporate attorneys, corporate executives, and federal judges regarding their attitudes and practices involving attorney-client privilege. The lawyers surveyed believed that upper management was aware of the privilege; that middle management was less aware of the privilege; and [but] that below the level of middle management, only a few employees believed their communications to be privileged or even considered the privilege.

Corporations are more concerned with strategic business decisions than following the rules. Attorneys have little leverage on corporate conduct rendering the privilege irrelevant.

CFSThornburg, Elizabeth G., Sanctifying Secrecy: The Mythology of the Corporate Attorney-


Third, empirical research indicates that attorneys are unlikely to play a major role in deterring improper corporate conduct. The corporations themselves have some economic incentive to push the law at least to the limit. For example, studies have shown that corporate executives are “willing to ignore extremely strong evidence of social irresponsibility and legal obstacles when making business decisions involving the introduction of dangerous and unsafe products.” Corporate executives’ risk of punishment by the corporation for nonprofit-oriented behavior is much greater than their risk of punishment by the legal system for illicit conduct.” The house counsel and outside counsel who advise the corporation have limited ability and inclination to moderate that conduct.

This piece of evidence explains that the privilege doesn’t help guide corporations’ moral decisions. This means that the truth may not be encouraged and corporations will do illegal things which means the privilege is unnecessary.


http://ssrn.com/abstract=1006313



Attorney-Client Privilege is not the only reason for full disclosure from client. PNGJohn T. Floyd Law Firm. “Attorney-Client Privilege - Special Rule of Privilege in

Criminal Cases Provides Greater Protection to the Criminally Accused.” July 2 2012.

The third study cited by Professor Inwinkeiried was conducted by Professor Vincent Alexander during his study for his Doctor of Science Law Degree. Conducted in the 1980s, Professor Alexander’s study, which focused on corporate attorney-client privilege, involved interviews with corporate executives in Manhattan. These executives said their decisions to convey confidential information to “in-house” counsel depended not on their belief that the privilege shielded those communications from disclosure but rather on “their trust of the individual attorney.”

With this evidence, the aff can demonstrate that attorney-client privilege is not the only reason why clients reveal the truth to their attorneys. It is likely that the neg will run the argument of attorney-client privilege being the source of truth in the criminal justice system, so this card would be a good counter to that point.

Limited attorney-client privilege would not reduce client honesty. PNGJohn T. Floyd Law Firm. “Attorney-Client Privilege - Special Rule of Privilege in


Intrigued by what he believed the Yale-published study revealed (“a substantial majority of laypersons would continue to use lawyers even if secrecy were limited), Professor Fred Zacharias decided to conduct his own study into the matter. He interviewed 105 laypersons in Tompkins County, New York, and while approximately half said they would withhold information from attorneys if there was no privilege of confidentiality, they also indicated they would consult with attorneys if the privilege of confidentiality was limited. The Zacharias study supported the Yale-published study by finding that 40 to 60 percent of those interviewed believed an attorney has the discretion to disclose confidential communications without their permission.



The attorney-client privilege only serves to benefit the attorneys and falsely increases the value of the profession. CFS

Daniel Northrop, The Attorney-Client Privilege and Information Disclosed to an Attorney with the Intention That the Attorney Draft a Document To Be Released to Third Parties: Public Policy Calls for at Least the Strictest Application of the Attorney-Client Privilege, 78 Fordham L. Rev. 1481 (2009). Available at: http://ir.lawnet.fordham.edu/flr/vol78/iss3/14

The attorney-client privilege benefits attorneys by increasing the value of, and demand for, an attorney's services. Because attorney-client communication that primarily concerns legal advice is protected under the privilege, attorneys can serve broad roles for both corporations and individuals. In addition to enabling clients to communicate incriminating information for the purposes of litigation, the attorney-client privilege enables an attorney to provide valuable services relating to taxes, investment banking, financial and estate planning, and investigation, all under the protection of the attorney-client privilege. An illustrative example is when a company considers testing a potentially dangerous product that it manufactures. While the negative results of company initiated product testing are discoverable, attorney-initiated product testing in "anticipation of litigation" is protected. The privilege creates a "substitution effect," raising an attorney's value over other professionals.

The privilege only adds additional costs for clients and interferes with communicating the truth. CFS


Fischel builds upon Bentham's critique with a present-day effects analysis of the attorney-client privilege. Fischel persuasively argues that while the attorney-client privilege benefits attorneys by increasing the demand for their services, it harms clients by increasing discovery costs and by preventing honest parties from differentiating themselves from dishonest adversaries. As previously articulated by Bentham, the privilege levels the playing field between the truthful and the deceitful and prevents courts from ascertaining the truth and delivering justice. Further, due to the zero-sum nature of civil litigation, the privilege at best redistributes the same asset pool. While clients pay more for the privilege, clients as a whole do not gain financially.


http://ir.lawnet.fordham.edu/flr/vol78/iss3/14



The attorney-client privilege in the adversarial system gives an unfair advantage to the defendant. AC.

Saltzbug, Stephen. “Communications Falling within the Attorney-Client Privilege.” Iowa Law Review. Vol. 811 (1980-1981). pp. 811-842.

If the privilege is extended, consider what may happen. The criminal case is perhaps the most troublesome one. Assume that a client seeks legal advice concerning business transactions under investigation by the government. In the course of securing the advice, the client shares all business records with the lawyer, who photocopies some records, takes detailed notes about others, and makes longhand reproductions of still others before returning the documents to the client. Later, the original records cannot be found. Extension of the privilege to cover the client's sharing of the records with the lawyer would mean that the lawyer need not produce his notes or the copies that he made in confidence, nor need he testify concerning what he saw. Of course, he could continue to provide advice to the client concerning the records. However, no tribunal or opposing litigant could get the information that the lawyer has. As long as the client fears possible incrimination as a result of talking about the documents, she will properly invoke the privilege against self- incrimination and say nothing. When this happens, the client cannot be compelled to answer questions about the contents of the missing records and the client's refusal to answer may not be used as evidence by the government against the client. Thus, evidence is lost and there is no substitute for it.

This appears to be an unwarranted extension of the privilege. It effectively permits one side to use records during the preparation and conduct of litigation while denying them to the other side. If the client decides to have the lawyer testify about one of the records, the client may do so since she holds the privilege and may waive it. This may amount to a waiver of the privilege with respect to all related records. But the waiver decision is the client's alone; there can be no waiver unless the client chooses to call the attorney. And even if there is a waiver and everything is revealed that should be, what is unrelated to the testimony offered by the client but important to the government's case will not be disclosed.



Recent trends in the criminal justice system demonstrate the increasing importance put on truth-seeking at the expense of the attorney-client privilege. AC.

Fried, David. “Too High a Price for Truth: The Exception to the Attorney-Client Privilege for Contemplated Crimes and Frauds.” North Carolina Law Review. 443 (1985-1986).

Although the crime-fraud exception to the privilege has antecedents traceable to at least 1743, a host of practical questions about its application has arisen just in the past twenty years. A review of the digests suggests an extraordinary increase in attempts to compel the testimony of attorneys in both civil and criminal cases. This increase has caused an extensive development of the law concerning the attorney-client privilege in general and has led to new resolutions of such difficulties as the application of the privilege to corporate employees and in intracorporate actions, whether direct or derivative.

The crime-fraud exception has not remained static in the course of this development. The courts have faced constant pressure to expand the reach of the exception, for example, by finding an analogous exception to the work-product immunity established by Rule 26(b)(3) of the Federal Rules of Civil Procedure or by steadily relaxing the standards for the showing that must be made by the proponent of the exception. In addition, the criminalization of numerous kinds of corporate misbehavior and of violations of administrative law has extended the reach of the exception by defining as “crime” many sorts of wrongdoing that do not qualify as civil fraud by traditional standards. This trend is inseparable from the great increase in prosecutions of business frauds and white collar and organized crime, especially at the federal level.

The last sentence begins to explain why this preference for truth-seeking at the expense of the attorney-client privilege takes place. In our society today, there are many crimes that are otherwise extremely difficult to provide evidence for. The argument then, would be that the criminal justice system, which operates under the common law system, is made to be sensitive to the needs and wants of the society. And because of the changing nature of criminal activity, there is an increasing need to suspend attorney-client privilege for truth-seeking.



Justice must take precedence over attorney-client privilege. PNG35 John Marshall Law Review 155 (2001-2002). Adversary System as a Means of Seeking

Truth and Justice, The; Johnston, Robert Gilbert; Lufrano, Sara“A lawyer is a representative of clients, an officer of the legal system, and a public citizen having special responsibility for the quality of justice.” Normally, these responsibilities interplay harmoniously. However, in the course of practicing law, conflicts do arise. The attorney is then confronted with the issue of whose interests he or she must further. The Model Rules prescribe terms in an attempt to resolve conflicts an attorney confronts due to his or her varying duties to the public, the court, his or her adversary, and his or her client.

However, these rules do not precisely solve the issue of whose interests are paramount - the court’s or the client’s. This Article proposes that it is the court’s interests that must be furthered before the client’s.


November/December 2013 Pro: Alternatives to ACP

Alternatives to Attorney-Client Privilege The work-product doctrine acts as a viable alternative to attorney-client privilege. TF.

Silverman, Arnold (1997). Silence is Golden -- The Attorney-Client Privilege. JOM Journal, 49 (6).

Besides the attorney-client privilege, another way of keeping information away from another is under the "work-product" doctrine. This doctrine is based upon the policy of encouraging attorneys to put forth a full effort in connection with the preparation for potential litigation or work during the litigation. Materials collected, documents created, and the attorney's thoughts may be protected from discovery by the other side under the work-product doctrine. However, this doctrine is not as far reaching as the attorney-client privilege. Counsel for the other side may establish that the prejudice to his or her client, if he or she is not permitted to obtain certain information, will impose an undue hardship on the client. If the client is unable to obtain substantially equivalent material by other means, the court will balance interests and, in appropriate cases, rule that despite the work-product issue, documents or other tangible items must be delivered to the other side.

Can also be used as counter to “attorney-client privilege necessary to judicial system.”

Client confidentiality is an ethical check on attorney-client privilege. TF.Silverman, Arnold (1997). Silence is Golden -- The Attorney-Client Privilege. JOM

Journal, 49 (6).Another factor that, in many instances, more broadly and more effectively prevents disclosure of information received from a client to others is the ethical obligation by the attorney to maintain client confidences. As a general legal ethics precept, an attorney is not allowed to reveal client confidences to others or use the same to the disadvantage of a client or for the benefit of himself/herself or someone else without obtaining consent from the client. This ethical obligation exists regardless of whether the attorney-client privilege or the work-product doctrine applies. However, there are some exceptions to this obligation that are recognized in many jurisdictions. In some jurisdictions, an attorney has the discretionary right to reveal confidential client information if such disclosure will prevent substantial physical harm to a third person. Other jurisdictions not only recognize the substantial physical harm exception, but also give an attorney the discretionary right to disclose confidential client information if disclosure is necessary to prevent substantial injury to the financial interests or property of third persons. Many jurisdictions have an ethical rule, applicable in litigation matters, that makes it a mandatory requirement for an attorney to disclose confidential client information to a court when it is necessary in order to avoid assisting a criminal or fraudulent act by the client. It is important that clients be aware that, unlike interactions wherein confidentiality agreements are relied on as


November/December 2013 Pro: Alternatives to ACPa basis for avoiding undesired disclosure of information, the relationship with a lawyer is different. The broad-based ethical requirements regarding confidentiality combined with the attorney-client privilege and work-product doctrine offer substantial benefits to the client. It must be noted, however, that the scope of the confidentiality requirements, whether they are based on precepts of legal ethics, the attorney-client privilege, or the work-product doctrine, can vary from jurisdiction to jurisdiction. It is recommended that clients question attorneys in their respective jurisdictions as to the scope of the confidentiality obligation.

Can also be used as counter to “attorney-client privilege necessary to judicial system.”

Ridding attorney-client privilege opens path for computer-based evidence discovery. TF.Withers, Kenneth (2000). Computer-Based Discovery in Federal Civil Litigation. Federal

Courts Law Review.The question of screening e-mail messages for attorney-client communication privilege, attorney work-product protection, or other privileges before production deserves special attention and may call for some creative negotiation. Large volumes of assorted, undifferentiated text files are difficult to screen for privilege. Computer search techniques may be used to roughly identify messages addressed to or authored by legal personnel, but the results of such searches will be far from precise. Manual review of the messages by people is time consuming and costly, as well as stupefyingly dull. While the seriousness of the consequences vary among the federal circuits, inadvertent production of privileged e-mail messages may result in the waiver of the privilege in part or in whole, against not only the immediate opponent but third parties as well. If the specter of privilege waiver could be removed, the cost and time of e-mail production would be reduced significantly. To facilitate discovery, the parties could negotiate an agreement regarding inadvertent production of privileged e-mail messages and have it endorsed as order from the court. By producing documents under such a court order, the parties may limit their exposure to each other and to possible third parties.

Opens new case for evidence discovery and more accurate prosecution.


November/December 2013 Pro: Alternatives to ACP

Knowledge of intrusion provides a check to attorney-client violations. TF.Grimm, Paul (2008). Discovery about Discovery: Does the Attorney-client Privilege

Protect All Attorney-Client Communications Relating to the Preservation of Potentially Relevant Information. University of Baltimore Law Review.

For this reason, counsel and client should be aware, when drafting preservation documents and engaging in implementation discussions, that those documents and discussions may voluntarily or involuntarily be presented to a court for review in connection with a spoliation motion. Prudence suggests, for example, that litigation hold letters should not contain surplus tactical and strategic discussions, and should be no more expansive than necessary to effectively accomplish the preservation task. It may be advisable to circumscribe preservation discussions and segregate notes regarding the implementation of preservation efforts from substantive communications involving the merits of the dispute. Additionally, all participants in the adversary process need to consider the probability that, even absent a preliminary showing of breach of the duty to preserve, the steps taken by a client to preserve information are likely discoverable, and that discovery may indirectly disclose some information regarding attorney-client communications.

Use as evidence degrading the ability of ridding attorney-client privilege. If attorneys and clients know, defeats attorney-client privilege’s purpose.

Without the privilege, clients would have more control and can give information at their own risk. CFS


Third, without the attorney-client privilege, there is no concern that an attorney will betray a client's trust by disclosing attorney-client communication. Clients who previously understood that attorney-client communication was privileged will now understand that it is not; whatever is disclosed to an attorney is discoverable. A client will divulge information at his own risk, and the attorney will serve justice by freely testifying to her knowledge of the case.



November/December 2013 Pro: ACP Harm Innocent

Attorney Client Privilege May Harm the Innocent Example of Attorney Client Privilege Covering Up a Wrongful Conviction ABB

Joy, Peter. “Confidentiality and Wrongful Conviction.” Summer 2008. Criminal Justice. (pg 46)

Iton Logan has been in prison 26 years for the shotgun murder of Lloyd Wickliffe, a crime Logan maintains he did not commit. It is not DNA evidence that may free Logan, though, but the words of a man who claimed to be the actual killer, Andrew Wilson. Andrew Wilson's public defenders recently demonstrated that in 1982 Wilson admitted killing Wickliffe. When police arrested Wilson for killing two police officers they found a shotgun linked to a shell at the scene of Wickliffe's murder. But police had already arrested Logan and another man, Edgar Hope, for Wickliffe's murder based on eyewitness identification, so the police did not charge Wilson for Wickliffe's murder. Logan's codefendant, Hope, however, told his attorney that Logan was not involved in the murder, and that Wilson was the actual shooter. Hope's attorney gave this information to Wilson's lawyers, who confronted Wilson with Hope's statement. Wilson nodded and said, "That was me." Wilson's lawyers then faced a classic ethical dilemma. What may a lawyer do when a client admits to a crime for which another has been charged? Wilson's lawyers concluded that client confidentiality bound them to silence, but they obtained their client's consent to reveal the information after his death. Wilson's lawyers also drew up an affidavit that confirmed that they "obtained information through privileged sources that a man named Alton Logan who was charged in the fatal shooting of Lloyd Wickliffe and is in fact not responsible for that shooting." They placed the affidavit in a sealed envelope in a metal box in 1982, believing that revelation at a later date would be more credible if supported by the affidavit. They released the affidavit after their client's death earlier this year.

Attorney-Client Privilege not favored by the Supreme Court. PNGEdward J. Imwinkelried, The Application of the Attorney-Client Privilege to Non-

Testifying Experts: Reestablishing the Boundaries Between the Attorney-Client Privilege and the Work Product Protection, 68 Wash. U. L. Q. 19 (1990).

One of the principal impediments to prosecution discovery is the existence of common-law and statutory privileges such as those surrounding the attorney-client and physician-patient relationships. Privileges obstruct factual inquiry and can result in the suppression of relevant, reliable evidence. For that reason, the Supreme Court has observed that “[e]videntiary privileges in litigation are not favored....” The general trend in privilege law bears out the Court’s observation. The courts have not only been reluctant to create new privileges; in many cases, they also have expanded waiver doctrines and special exceptions to defeat privilege claims.


November/December 2013 Pro: ACP Harm InnocentThis evidence could be a useful counter to a neg argument that attorney-client privilege is accepted/the standard in our criminal justice system. This card could also function as its own independent argument in the aff case if the aff were arguing a case demonstrating the temporal trend towards truth-seeking and away from attorney-client privilege.

Attorney-Client Privilege May Cause False Convictions ABBJoy, Peter. “Confidentiality and Wrongful Conviction.” Summer 2008. Criminal Justice.

(pg 47)

As discussed in the following section, attorney-client privilege has been used in several jurisdictions to prevent lawyers from revealing information that could prevent the wrongful incarceration of another. A confidentiality exception would allow revelation to the prosecution, the press, and lawyers representing the person the information exonerates. Privilege becomes an issue when the lawyer seeks to testify in court about what the lawyer knows that may exonerate the accused. In addition, limitations on the use of alternate perpetrator evidence and hearsay would usually exclude this type of testimony. Massachusetts has already amended its ethics rules to provide that "[a] lawyer may reveal.., such information . . . to prevent the wrongful execution or incarceration of another." (MAss. R. PROF'L CONDUCT 1.6(b)(1).) This exception to confidentiality permits "a lawyer to reveal confidential information in the specific situation where such information discloses that an innocent person has been convicted of a crime and has been sentenced to imprisonment or execution." The Comment's explanation that the exception applies specifically when "an innocent person has been convicted of a crime and has been sentenced to imprisonment or execution" may be viewed as an example of when the exception applies or as a limitation on using the exception. Rather than clarifying the exception, the Comment appears to create an ambiguity in determining when the exception applies. We could find no reported instances of a lawyer making disclosure under this rule.

It follows from this that attorney-client privilege may cause wrongful convictions as well as prevent them. Therefore, emphasizing justice seeking may be the best way to minimize the frequency of such cases.



The Attorney-Client Privilege Must Be Overridden In Malpractice Lawsuit. BPGStephen P. Hurley and Marcus J Berghahn, 2013. “The Attorney-Client Privilege: The

Self Defense Exception To The Attorney-Client Privilege.” Attorneys need to be able to break attorney-client privilege in order to protect themselves from malpractice lawsuits.

The modern approach to the privilege gives the right of disclosure to the client, who maintains sole discretion to waive it. According to one legal scholar, "[t]o permit the attorney to reveal to others what is ... disclosed, would be not only a gross violation of a sacred trust upon his part, but it would utterly destroy and prevent the usefulness and benefits to be derived from professional assistance."7 The attorney, however, must take direction from two sources, which may be in conflict with regard to disclosures: the rules of professional responsibility and the rules of evidence. By itself, the attorney-client privilege imposes no ethical obligation on an attorney to withhold client confidences. In contrast to the rules of evidence, the rules of professional responsibility mandate that the attorney not reveal information relating to the representation of a client, except in certain discreet circumstances.8The self defense exception is one of the exceptions recognized, to a limited degree, by both the rules of evidence and the rules of professional responsibility, and permits in limited circumstance, an attorney to disclose client confidences. 9 Traditionally, courts have allowed an attorney to invoke the self defense exception to the attorney-client privilege when the attorney is either sued for malpractice, charged with misconduct by a client of former client, or brings suit to recover a fee. The self-defense exception, however, may in certain cases be read more broadly permitting, if not requiring, the disclosure of client confidences. 10Three situations have traditionally been acknowledged as giving rise to the traditional interpretation of the self-defense exception: when an attorney has been sued for malpractice; when the attorney has brought suit in order to recover a fee; and when the attorney is charged with misconduct in the course of litigation between a client (or former client) and another party. Disclosing information in these instances-all situations in which the attorney was in actual opposition the client-has been justified primarily by interpreting the client's accusations of attorney misconduct as an implied waiver of the privilege. See 8 Wigmore at § 2327. 11 The rules of evidence have codified a generally accepted view that recognizes an exception to the privilege when a client and attorney become opponents in a subsequent controversy. 12The principal limitations placed upon the use of the self defense exception was first stated inMitchell v. Bromberger, 2 Nev. (1866), which held that disclosure should be limited to that which is "necessary" to protect the attorney's interest. Despite this rule, a number of courts have been quite lenient in admitting evidence that is highly prejudicial to the client and only marginally relevant to the attorney's defense. 13 The related lessons which Meyerhoffer, Friend, and White demonstrate is that the privilege may be used offensively - by a prosecutor - in order seek access to communications which otherwise may be protected.

This goes with the protection of innocents because a lawyer, who did nothing legally, could be convicted of malpractice if he or she is unable to break attorney-client privilege and tell the truth.


http://www.hbslawfirm.com/articles_display.php?id=19

http://www.hbslawfirm.com/articles_display.php?id=19#13








Example where Attorney-Client Privilege Could Conceal Child Abuse. ABBRobert P. Mosteller. “Child Abuse Reporting Laws and Attorney-Client Confidences: The

Reality and the Specter of Lawyer as Informant.” November 1992. Duke University School of Law. (pg, 207)

Similarly, through mandatory child abuse reporting laws, we are experimenting with the use of attorneys as crime detectors and informants and concomitantly encroaching on the legal protections for attorney-client confidences. The challenges these reporting laws pose to attorney-client confidences are illustrated by an imagined lawyer-client conference:

A domestic relations lawyer meets with a married couple who want to structure their future financial affairs such that monetary issues will be easily settled if the marriage does not last. They confide that although on the whole their relationships a positive one, they have had problems. In specific, the husband became so angry during one of their disputes some months ago that he struck and injured one of their children who required medical treatment for a broken bone but no hospitalization. The hospital did not view the injury as suspicious. The couple reports that they are making progress in repairing their relationship, and believe it will last, but they are not sure.

Depending on the state in which this conversation occurs and the interpretation of concepts analyzed later in this Article, the consultation and much more may effectively terminate at this point.

"Instead of continuing with the discussion of the couple's situation, the lawyer interrupts, informing the couple that in order to avoid her own criminal prosecution, she must report the husband's act of child abuse to state authorities within twenty- four hours. The lawyer advises that she is confident that a formal investigation by child protective services will follow, and warns that criminal charges may ultimately be filed against the husband. She suggests that the husband may want to retain a criminal defense attorney, but warns him that since he has not yet been formally accused of a crime, any incriminating statements he makes to the defense attorney may also be subject to disclosure.'2



Conflicts Exist Between Attorney-Client Privilege and Abuse Reporting Requirements. ABBRobert P. Mosteller. “Child Abuse Reporting Laws and Attorney-Client Confidences: The

Reality and the Specter of Lawyer as Informant.” November 1992. Duke University School of Law. (pg, 209)

Second, the attorney-client privilege, which excludes from evidence statements made by an individual in confidence to an attorney for the purpose of obtaining legal advice, conflicts with the reporting requirements as applied to lawyers. The interaction between the attorney-client privilege and reporting laws is, however, uncertain. The reporting laws may have the intent or the effect of abrogating the attorney-client privilege and therefore mandate that attorneys report information about their clients' abusive conduct even when gained through conversations that would normally be protected by the privilege. Although I argue against such an interpretation, abrogation of the privilege would appear to be the reasonable interpretation of the statutory language in some states. A fundamental change of this type in the scope of the attorney-client privilege raises questions about the extent to which the privilege has a constitutional basis and whether it can be radically modified by simple legislative action.

This source illustrates the conflict between attorney-client privilege and the responsibility of lawyers to report suspected child abuse. In a system where attorney-client privilege is absolute, it can be expected that many of these crimes would go unreported.



Attorney-client privilege makes it more difficult for innocents to convince jury they have nothing to hide DC

Fischel, Daniel R. "Lawyers and Confidentiality." University of Chiago Law Review (1998): n. pag. Rpt. in Ethics and the Legal Profession. Ed. Elliot D. Cohen, Michael Davis, and Frederick A. Elliston. 2nd ed. Amherst, New York: Prometheus, 2009. 379-89. Print.

Proponents of confidentiality as a necessary attribute of vigorous advocacy ignore its effect on the decision maker. Simply stated, an argument made by someone known to be an advocate is less credible that the same argument made by someone who is expressing his own beliefs after independent investigation. Anyone who is being paid by a party in a legal dispute likely will have his views discounted somewhat. And if the person is known to be acting as an advocate, the discount is greater still. No matter how compelling the claim being made, the rational response of the listener will be skepticism (what does the speaker, whom I know to be a paid advocate, know that he is not telling me?).

For this reason, confidentiality penalizes clients with nothing to hide. Such clients would like their attorneys to communicate credibly that nothing is being hidden from the decision maker but confidentiality makes this impossible. Civil litigants with competing claims have to convince the uninformed decision maker to believe them over their adversaries. The result resembles a lemons market, where clients with nothing to hide attempt to signal the merit of their case by using attorneys as representational intermediaries to overcome informational asymmetries between themselves and the decision maker. Confidentiality, however, weakens the ability of these high-quality clients to distinguish themselves through their attorneys from low-quality clients with something to hide (the lemons). Attorneys of low-quality client rely on confidentiality to mimic the claims made by attorneys of high-quality clients, making it more difficult for the decisionmaker to distinguish between the two.

Bentham’s argument against attorney-client privilege does not go far enough DCFischel, Daniel R. "Lawyers and Confidentiality." University of Chiago Law Review

(1998): n. pag. Rpt. in Ethics and the Legal Profession. Ed. Elliot D. Cohen, Michael Davis, and Frederick A. Elliston. 2nd ed. Amherst, New York: Prometheus, 2009. 379-89. Print.

Bentham thought it was a benefit, in other words, for the guilty to withhold information from their attorneys. They would then receive lower quality legal advice and be more likely to be convicted. My argument I similar to Bentham’s but goes further, Whereas Bentham argued the privilege benefited the guilty but was of no value to the innocent, I argue that the privilege makes it more difficult for the innocent credibly to communicate that they have nothing to hide.



Wrong convictions are too common. PNGC. Ronald Huff, Arye Rattner, Edward Sagarin and Donal E. J. MacNamara. “Guilty

Until Proved Innocent: Wrongful Conviction and Public Policy. Crime & Delinquency 1986.

Most of those who have addressed the problem of wrongful conviction have come away convinced that it is not a rare phenomenon. Radin (1964: 9) cites an estimate by a highly respected judge (whom he does not name), who opined that there might be as many as 14,000 cases of false conviction in the United States in a given year. At the time this estimate was made, it would have represented a 5% error!

This evidence could be used to support a contention that truth seeking is necessary to preserve innocents.

Focus on Protecting Attorney-Client Privilege Prevents Abuse Reporting in Most States. ABB

Robert P. Mosteller. “Child Abuse Reporting Laws and Attorney-Client Confidences: The Reality and the Specter of Lawyer as Informant.” November 1992. Duke University School of Law. (pg, 217)

Currently, twenty-two states have mandatory reporting systems applicable specifically or generally to lawyers: Connecticut, Delaware, Florida, Idaho, Indiana, Kentucky, Maryland, Mississippi, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, Ohio, Oklahoma, Oregon, Rhode Island, Tennessee, Texas, Utah, and Wyoming. Of those, only four states-Mississippi, Nevada, Ohio, and Oregon-have statutes that specifically mention lawyers as a group subject to reporting requirements. The other states have statutes that include lawyers generally through language that imposes the duty on "any person" (e.g., Texas, Rhode Island, Wyoming), or "any person, including but not limited to" (e.g., Florida, Tennessee, Utah), or "any other person" (e.g., Delaware, New Hampshire). In these eighteen states, the reporting requirement-typically threatening criminal sanctions for failure promptly to report abuse--constitutes, despite its generality, a very real duty for lawyers.

As many states still lack this requirement, it follows that confessed instances of child abuse are allowed to go unreported in many cases around our country.



Attorney-Client privilege hurts protection of the innocent accused by complicating legal process. TF.

Moliterno, James (2011). Rectifying Wrongful Convictions: May a Lawyer Reveal Her Client's Confidences to Rectify the Wrongful Conviction of Another? Hastings Constitutional Law Quarterly, 38 (4).

Except in Alaska and Massachusetts, the defense lawyer whose client reveals his commission of a crime for which another has been wrongly convicted faces an unclear legal landscape. An interpretation of the standard future harms exception, especially with the Restatement illustration gloss, may yield permission to reveal the client's information and rectify the wrongful conviction. But that result is far from certain and is weighted down with significant factor weighing to determine if the wrongly convicted is suffering "substantial bodily harm." The nature and length of the wrongful sentence must be considered. Despite a broader view that would dictate revelation of such information, the individual defense lawyers and prosecutors are likely to resist results of factor-weighing that favor revelation. The Alaska and Massachusetts approach is cleaner but still requires what may be unpalatable to some: Inflicting harm on one's own client to aid an innocent other. The justice system has been shaken by revelations of wrongful convictions. Thus far, most of the attention has been paid to wrongful convictions in capital cases. These most grave cases receive more attention and resources than any others at the time of trial. Reason says that if there are significant numbers of wrongful convictions in capital cases, there are at least as high a percentage of wrongful convictions in less weighty matters where fewer defense and prosecution resources are expended at trial. Confidence in the justice system cannot long survive in the face of long-past revelations of wrongful convictions when silence was mandated by lawyer ethics law. The change advocated for in this paper is overdue and now needed if confidence in the justice system is to be preserved.

Can be used as additional reason-to-prefer the AFF.


November/December 2013 Pro: Focus on ACP insufficient

F ocusing Solely on Attorney-Client Privilege Insufficient Man Wrongfully Convicted of Murder Due to Prosecutor Withholding Info. ABB

Zacharias, Fred. “THE DUTY TO AVOID WRONGFUL CONVICTIONS: A THOUGHT EXPERIMENT IN THE REGULATION OF PROSECUTORS. 2009. Boston University Law Review. (pg. 2)

A civil rights case recently decided by the U.S. Supreme Court commenced when Thomas Lee Goldstein sued the Los Angeles County District Attorney’s Office for conduct that led to Goldstein’s wrongful incarceration.1

Goldstein was convicted of murder based on a jailhouse informant’s testimony that Goldstein had confessed.2

At trial, the informant concealed that he had previously served as a government witness in exchange for a series of reduced sentences, a fact which Goldstein learned only decades later.3 Upon his exoneration and release, Goldstein found himself unable to sue the trial prosecutor for failing to disclose the exculpatory information or correct the informant’s false testimony, because prosecutors are immune from civil liability for actions taken in their “prosecutorial role.”4 Goldstein’s civil case therefore maintained that senior prosecutors were negligent in performing an administrative function – training trial prosecutors to share information about informants.5 The Supreme Court rejected Goldstein’s attempt to avoid absolute prosecutorial immunity, and proving that the supervisors were negligent would have been difficult even if the Supreme Court had allowed the case to proceed on the theory that supervisory lapses are actionable.

The Goldstein case highlights the regulatory vacuum created when the Supreme Court implemented prosecutorial immunity thirty-three years ago.6 With the advent of DNA evidence and the realization that criminal defendants are erroneously convicted more frequently than previously believed,7 courts and commentators have been struggling to identify alternative mechanisms for holding prosecutors to their theoretical obligation to see “that justice shall be done.”8 Even if Goldstein had prevailed in the Supreme Court, civil litigation would serve only a marginal role in regulating misconduct, because prosecutors exercising “prosecutorial” functions would remain invulnerable to suit.



Potential for Wrongful Convictions due to Prosecutorial Misconduct. ABBZacharias, Fred. “THE DUTY TO AVOID WRONGFUL CONVICTIONS: A

THOUGHT EXPERIMENT IN THE REGULATION OF PROSECUTORS. 2009. Boston University Law Review. (pg. 9)

There is a range of conduct that prosecutors may undertake in good faith but nevertheless creates a serious danger of producing false convictions. For example, prosecutors often offer benefits, such as leniency or immunity from prosecution, to accomplices and informants. The inducements alone can cause a witness to testify falsely. Prosecutors’ interviewing techniques may further encourage false testimony by signaling what a witness must say to obtain the offered benefits. Although both criminal statutes and professional

codes forbid prosecutors to intentionally elicit false testimony,32 they are otherwise silent with respect to prosecutors’ methods of preparing witnesses. One should not infer, however, that techniques which pose an unreasonable risk of eliciting perjury are legitimate. There simply is no accepted standard delineating prosecutors’ obligations to evaluate the bona fides of unreliable evidence.

Similarly, the gate-keeping functions of prosecutors traditionally have been left almost entirely to prosecutorial discretion. With respect to screening, for instance, the professional codes typically forbid prosecutors to bring charges in the absence of probable cause but leave unresolved how prosecutors should act once that minimal threshold is satisfied.33 Prosecutors have been known to file prosecutions when there is no better than a fifty percent likelihood that the defendant is guilty, as in the situation in which a prosecutor charges two individuals with the same act, knowing that both cannot be guilty.34 How prosecutors should exercise discretion in such cases, however, remains a matter of debate; given the fallibility of the trial process, one might plausibly argue that it is unreasonable to proceed in cases in which the risk of a false conviction is significant.

It should be emphasized that justice seeking also addresses reducing wrongful convictions due to prosecutorial misconduct, while focusing on attorney-client privilege does not.



Stricter Checks on Attorneys Necessary to Prevent Wrongful Convictions. ABBZacharias, Fred. “THE DUTY TO AVOID WRONGFUL CONVICTIONS: A


Most states have adopted professional code provisions that, like Model Rule 1.1, require all lawyers to provide

“competent representation to a client.” These provisions have been enforced selectively against private attorneys. Recognizing lawyers’ human fallibility and seeking to conserve resources, disciplinary authorities typically reserve discipline for incompetence that is egregious or places future clients at risk.65 They rely on civil liability as an alternative mechanism for deterring ordinary lawyer negligence.66 Nevertheless, by preserving the possibility of sanction for incompetence, occasional enforcement of the competence rule encourages care on the part of some private attorneys who might otherwise approach clients’ matters cavalierly.

Even with Attorney-Client Privilege, there exists the possibility that lawyers will not provide adequate legal council to their clients. Focusing on the broader topic of justice would allow this.

Example of Negligent Attorney Causing Wrongful Conviction. ABBZacharias, Fred. “THE DUTY TO AVOID WRONGFUL CONVICTIONS: A


Disciplinary authorities have been especially hesitant to enforce the competence rule in cases involving criminal defense lawyers, for a variety of reasons.68 Even so, criminal defenders face a realistic risk of discipline for incompetence, particularly when defense negligence potentially leads to an erroneous conviction. For example, in In re Wolfram, a criminal defense lawyer was sanctioned for inadequately investigating and preparing his client’s case.69 The reviewing court identified a host of specific tasks the lawyer had failed to perform: interviewing prosecution witnesses and other prospective witnesses, procuring independent expert witnesses, reading the grand jury transcript, examining physical evidence, consulting with the client on whether to submit lesser included offenses to the jury, challenging prospective jurors, and objecting to expert testimony offered on the ultimate issue of guilt.70 Taken together, the omissions made the representation, in the words of successor counsel, “wretched beyond all belief” – an assessment the court quoted with evident agreement.71 Although there was no specific legal obligation to do any of the tasks the court identified, the competence rule allowed the disciplinary authorities to evaluate the quality of the lawyer’s acts collectively.


November/December 2013 Pro: Focus on ACP insufficientIt should be emphasized that attorney-client privilege alone does not guarantee that one’s lawyer will provide a competent defense. Other reforms are needed to promote justice and to prevent wrongful convictions.


November/December 2013 Pro: ACP exonerates guilty

Attorney-Client Privilege May Exonerate the Guilty

Example Of Attorney-Client Privelege Protecting a Confessed Murderer ABB Joy, Peter. “Confidentiality and Wrongful Conviction.” Summer 2008. Criminal Justice.

(pg 48)There are several well-documented examples of confidential information being offered to exonerate someone accused of a crime. In State v. Macumber, 544 P.2d 1084 (Ariz. 1976), William Macumber was charged with murder. At Macumber's trial, two attorneys attempted to testify that their deceased client had confessed to the crime. The trial court refused to admit the evidence reasoning that attorney-client privilege survived the death of a client and that disclosure could only be made with the consent of the client or someone authorized by law to speak for the client. On appeal, the Arizona Supreme Court reversed on other grounds, but upheld the trial court's decision to exclude the confession, holding that in the absence of consent from the individual holding the privilege, the privilege could be asserted by the trial court itself to prevent disclosure.

In addition to potentially causing wrongful convictions, attorney-client privilege may also prevent proper ones, as those who have confessed crimes to their lawyers have in some instances been able to do so confidentially.

The attorney-client only helps guilty clients. This makes trials more difficult and immoral. CFS


Bentham asserted that the attorney-client privilege should be eliminated for three reasons. First, Bentham argued that the attorney-client privilege harms, rather than benefits, clients and society as a whole. If an attorney could disclose all communication with a client, innocent clients would have nothing to fear; their communication would not divulge incriminating information. On the other hand, the cost to a guilty client is not of grave social concern. The effect would be merely that a guilty person would not be allowed to concoct a false legal defense or derive the same benefit from legal assistance as an innocent client. This does not unjustly wrong a guilty party, but rather protects victims and ensures justice by revealing the truth.



November/December 2013 Pro: Protection of innocents vital

Protection of Innocents Vital to Criminal Justice

Truth-Seeking Protects Innocents. PNGWu Shan-Shan, China University of Political Science and Law, 2012, “The Search for

Truth in Criminal Process,” University of Arizona. <http://www.cesl.edu.cn/upload/201209206168631.pdf>

Although the Anglo-American system concentrates more on conflict-resolution, it still has to satisfy the basic or minimum needs about fair and justice. None of the potential purposes of the criminal process can be reached unless the judgment has been based on a search for the truth.3 The determination of truth is indispensable for yet another reason—criminal sanctions are society’s most severe expression of moral blame. It is therefore imperative that criminal sanctions be imposed upon those who are in fact guilty. It is a protection of the innocence and litigant in criminal process.4

Truth-defeating devices lead to the conviction of innocents. PNGEvan Whitton, June 14 2012, “America’s English-Style Legal System Evolved to Conceal

the Truth, Not Reveal It.” The Atlantic.Over the last 200 years, judges have invented myriad truth-defeating devices, including a few that conceal important evidence. Here are a few:

The "right" of silence. The rule against self-incrimination is based on a lie by the first legal academic, a charlatan named William Blackstone. It's estimated to get off about a quarter of guilty defendants.

Concealing context. Serial sex criminals are largely protected by a rule that conceals evidence of a pattern of criminal behavior.

Cross-examination. Lawyers are allowed to use sophistry to make honest witnesses look unreliable.

Juries. Juries let off about 25 percent of guilty defendants, according to some estimates, because jurors are confused by concepts such as "beyond a reasonable doubt."

In France, evidence is not concealed and lawyers are not allowed to use artful lies to pollute the truth. The innocent are rarely charged; 95 percent of guilty defendants are convicted. Public confidence in the system is high. In the Anglo-American common law system, lawyers are encouraged to obfuscate the truth and use sophistry to besmirch the integrity of honest witnesses. In the U.S., it is estimated that upwards of four percent


November/December 2013 Pro: Protection of innocents vitalof the prison population is innocent (a staggering 80,000 people, more than double the prison population of Canada) -- with some on death row -- but more than half of guilty defendants get off.

Criminal Justice should respect individual human rights. PNGOxford University Press. 2008. “The aims and values of ‘criminal justice.’”

<http://fds.oup.com/www.oup.com/pdf/13/9780199541317_chapter1.pdf>‘Balancing’ of conflicting criminal justice aims and interests should not be driven by consequentialist calculations of which set of arrangements would produce the most overall benefit to society. Rather, individual rights must be assigned some special weight in the balancing process. The goal of bringing cases to effective trial in the service of crime control is authoritatively constrained by human rights principles instead of (as in Packer’s models) merely compromised to a varying extent by conflicting due process principles. This philosophical position has been translated into positive law as a result of the United Nations Declaration of Human Rights (1948) and various regional human rights instruments (pg.1).

This evidence could be used in a case that argues that the truth is vital to protecting human rights in criminal justice. It is difficult for an opponent to argue that human rights aren’t important regardless of the topical context, and this particular topic has a lot of room for human rights argumentation.

Truth Seeking would Clarify Duty of Prosecutors to Stop Wrongful Convictions ABBZacharias, Fred. “THE DUTY TO AVOID WRONGFUL CONVICTIONS: A


A third promising subject for competence jurisprudence relates to prosecutors’ preservation and production of exculpatory and impeachment material. Arguably, prosecutors act unreasonably when they interfere with defense lawyers’ ability to establish their clients’ innocence. Prosecutors have been known to engage in such tactics as: (1) refraining from memorializing witness statements to avoid discovery; (2) producing discoverable information in a manner that obscures its significance; (3) coaching witnesses to hide inconsistencies or biases; (4) discouraging witnesses from speaking or cooperating with defense attorneys; and (5) refusing defense requests to immunize witnesses or perform scientific tests the defense cannot afford.94 Although these activities are not categorically illegal or improper, they may unreasonably contribute to false convictions in some contexts, particularly when used in conjunction with other tactics. Vigorous enforcement of the prosecutorial competence rule would encourage courts and prosecutors to develop clearer understandings about when such conduct crosses the line.


November/December 2013 Pro: Protection of innocents vitalA system in which truth seeking were to be the focus of the criminal justice system would clarify the ambiguous duty of the prosecutor. It would clearly be wrong in such a system to distort justice in some of the ways mentioned above.


November/December 2013 Pro: Inquisitorial model

Inquisitorial Systems Serve as Truth-Seeking Models

French Truth-Seeking system more likely to protect innocent. PNGSusan A. Bandes, DePaul University College of Law. 2008. “Protecting the Innocent as the

Primary Value of the Criminal Justice System.” <http://moritzlaw.osu.edu/students/groups/osjcl/files/2012/05/Bandes-FinalPDF.pdf>

Judges in the French system, by contrast, “run the show.” (P. 172.) They receive special training and rigorous screening before taking the bench. Investigative judges visit crime scenes, interview witnesses before trial, act as the main supervisors of the police investigation, serve with laypeople on juries, and determine the charges. (P. 174.) The explicit function of French judges is to search for the truth, a role that has no parallel in the adversary system. Three other characteristics of the French system, as Thomas describes it,14 bear particular mention. First, it builds in protections against tunnel vision. For example, the prosecutor who appears before the investigative magistrate is not the same prosecutor who appears in the indicting chamber. Second, it engages in early and frequent substantive screening of criminal cases. Finally, if the case proceeds to trial, there is no plea bargaining available. Witnesses are “encouraged to tell what they know in a narrative style.” (P. 175.) The trial is regarded not as a dispute between parties, but as a way to determine guilt or innocence. (Pp. 174–75.)

This could be used in a round to show how the inquisitorial justice systems used in parts of the world value truth seeking than the United States does in our own adversarial justice system. This evidence provides a model of a truth-seeking system that protects innocents against wrongful conviction.

National courts around the world have set the precedent for “the right to truth”. PNGEduardo Gonzalez and Howard Varney. 2013. “Truth Seeking: Elements of Creating an

Effective Truth Commission.” International Center for Transitional Justice (ICTJ). http://ictj.org/sites/default/files/ICTJ-Book-Truth-Seeking-2013-English.pdfSome national courts have also affirmed the right to the truth. In Argentina, the Supreme Court held in “Simón” that amnesty laws shielding perpetrators of crimes against humanity were unconstitutional. In Peru, the Constitutional Tribunal in “Villegas Namuche” recognized the right to the truth as a “fundamental right” directly protected by the constitution. In Colombia, the Constitutional Court in the case of “Gustavo Gallón Giraldo y Otros” stated that even the priority of contributing to the demobilization of illegal armed groups did not extinguish the state’s obligation to seek the truth regarding the disappeared. In South Africa, the


November/December 2013 Pro: Inquisitorial modelConstitutional Court in “McBride” upheld the rights of victims, the media, and public to speak the truth about crimes, even if they were not the object of an amnesty. In this case, the court held that truth telling was the moral basis of a transition from the injustices of apartheid to democracy and constitutionalism (pg. 1).

These various examples can be used to support the aff position that there is a global trend towards truth in justice. Or, if you want to go even further with the argument, this evidence posits that the “right to truth” is a fundamental human right, and that would be one reason to affirm the resolution.

U.S. Government has challenged attorney-client privilege. TF.Allen, John (2006). Protecting the Privilege - MRPC 3.4(g) is NOT the Way. Michigan Bar

Journal.The corporate corruption scandals of recent years have created new opportunities for federal prosecutors and regulators. Emboldened by Congressional grants of expanded legal and budgetary authority, federal law enforcement authorities have pushed corporations to turn the attorney-client privilege on its head — through the use of privilege waivers to obtain incriminating evidence to prosecute corporate officers, directors, and advisors. The SEC and the Department of Justice have each made waiver of the privilege a key factor in determining whether or not to charge corporations. And corporations have acceded to waiver demands — particularly publicly traded or financial services corporations subject to substantial regulation and sensitive to the fate of such indicted professional and financial services companies as Drexel Burnham Lambert and Arthur Andersen. Federal prosecutors and SEC enforcement attorneys, in an effort to streamline complex corporate fraud cases, have increasingly turned to the private law firms hired by corporations to conduct internal investigations. Soon after the report of wrongdoing, the corporation’s lawyers often conduct internal investigations to assess the nature and scope of the problem for the corporation, its board of directors, the board’s audit committee, and/or a special board committee. The lawyers typically interview corporate employees who feel pressure to cooperate, or else risk losing their jobs. Corporations then attempt to demonstrate their cooperation by waiving the attorney-client privilege and turning over the employee statements and other work product to the government.

Can also be used as answer to “attorney-client privilege preserves governmental legitimacy.”


November/December 2013 Pro: ACP abuse by corporations

Attorney-Client Privilege Allows Abuse By Large Corporations

This section argues that the attorney-client privilege allows corporations to hide corrupt practices they are using. You can either use this as a contention in your AFF or you could parametricize and only defend prioritizing truth testing in cases where corporations are involved. Further, if you want to run only concrete real world implications you should only use evidence through the cards about Enron in this section. All the cards about Enron show how there are tons of ways in which the culture surrounding the attorney-client privilege encourages lawyers to fight against truth-seeking in the name of their corporate. However, after the cards about Enron there are a lot of more critical and abstract arguments about corporations and capitalism that are riskier but can be used for larger impacts. These arguments can be used to make communistic arguments about why capitalism and corporations in all of their forms are bad.

The Attorney-Client Privilege Applies to Corporations. BPGBryan K. Gould and Philip R. Braley, 2012. “The Problem of the Corporate Client and

the Attorney-Client Privilege.”http://www.cwbpa.com/publications/problem-of-the-corporate-client-and-the-attorney-client-privilege.html.

The attorney-client privilege is a rule of evidence protecting certain communications between an attorney and a client from compelled disclosure. The privilege allows a client to “refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client.” N.H. R. Evid. 502(b). Because an entity client can communicate with counsel only through human beings, the question that arises is: which such persons’ communications with counsel are protected by the entity’s privilege?. … In contrast, federal courts exercising federal question jurisdiction or applying federal common law employ the much broader “subject matter” test when determining the boundaries of an entity client’s privilege. In Upjohn Co. v. United States, 449 U.S. 383 (1981), the United States Supreme Court concluded that “[t]he control group test adopted by the court below … frustrates the very purpose of the privilege by discouraging the communication of relevant information by employees of the client to attorneys seeking to render legal advice to the client corporation.” Upjohn, 449 U.S. at 392. The subject matter test broadens the class of individuals whose communication with a corporation’s attorney will be deemed privileged by examining a set of factors, including:

1. Whether the employee communicated with the lawyer at the direction of the employee’s superior;


http://www.cwbpa.com/publications/problem-of-the-corporate-client-and-the-attorney-client-privilege.html

http://www.cwbpa.com/publications/problem-of-the-corporate-client-and-the-attorney-client-privilege.html

http://www.cwbpa.com/attorneys/braley.html

http://www.cwbpa.com/attorneys/gould.html

November/December 2013 Pro: ACP abuse by corporations2. Whether the employee knew that the purpose of the communication was to get legal advice for the corporation; and

3. Whether the communication concerned a subject within the scope of the employee’s duties for the corporation.

Id. at 394-96. Thus, under the subject matter test, communications between a corporation’s lawyer and a low-level employee who is clearly not within the control group may still be protected by the privilege.

This card is useful in two scenarios. First, if they claim attorney-client privilege doesn’t extend to corporations (which is false). Second, to prove that the attorney-client privilege applies to most employees of a corporation which proves that it is easy for corporations to abuse attorney-client privilege to hide secrets.

The Government is eroding attorney-client privilege in cases involving large corporations. BPG

Sara Jane Shanaha, 2009. “Another View: The Eroding Attorney-Client Privilege” http://dealbook.nytimes.com/2009/11/02/another-view-the-eroding-attorney-client-privilege/?_r=0.

The policy supporting the attorney-client privilege is the idea that it is more important for clients to obtain thoughtful and thorough legal advice than it is for investigators or litigants to obtain discovery of all information underlying what turns out to be a challenged decision in a subsequent lawsuit. But if the government continues to press for and obtain waivers in high-profile situations, the respect given to the attorney-client privilege in the ordinary course of litigation could erode.

Since the late 1990’s, in high-profile, high-stakes government investigations, it has become increasingly common for the investigators to press companies to waive their attorney-client privilege. Investigators contend that such waivers are appropriate and necessary because the advice of counsel on key issues — such as Bank of America’s alleged decision to withhold from shareholders information about Merrill Lynch’s 2008 bonuses until after the merger was completed — may reveal the “truth” of what happened and evidence of intentional wrongdoing on the part of corporate executives.

This card has two functions. First, it proves that the AFF is on the side of the status quo already; the government is eroding the attorney-client privilege in favor of truth with corporations. Second, if they claim there haven’t been any cases of the attorney-client privilege being abused by corporations recently, you can use this card to argue that’s because the government has started to favor truth seeking in these situations.


http://dealbook.nytimes.com/2009/11/02/another-view-the-eroding-attorney-client-privilege/?_r=0



Lawyers will give worse legal advice to corporations if the government continues to erode attorney-client privilege. BPG

Sara Jane Shanaha, 2009. “Another View: The Eroding Attorney-Client Privilege” http://dealbook.nytimes.com/2009/11/02/another-view-the-eroding-attorney-client-privilege/?_r=0.

Perhaps lawyers will give certain advice orally, rather than in writing. This could make it more difficult for boards to understand nuanced legal analyses underlying certain business decisions. Perhaps lawyers will present lengthier memorandums to their boards of directors, covering all pros and cons of a particular legal argument, in an effort to create a record of their thinking (the “I told you so” approach). This could also make it more difficult for boards to understand the advice given by their lawyers, as the advice would be written more for a court reviewing the memorandum after the fact, rather than for the corporate executive reviewing the memorandum in the process of making a live-time business decision.

Under either scenario, we have a common concern — the lawyer is tailoring the advice for purposes of review by a court or an investigator, and not for the purpose of communicating with and advising the client. Lawyers already know that the attorney-client privilege belongs to the client, and the client can waive the privilege at any time to serve its own interests. However, when the decision of waiver is de facto taken over by the government, we are likely to see a chilling effect on the form and scope of advice given to clients.

You might be asking yourself, “Wait shouldn’t this be Neg evidence? Worse legal advice is usually a bad thing, right?” Well not in this instance. The argument in this section is that corporations are able to abuse the attorney-client privilege, so if truth forces attorneys to give worse legal advice, that means corporations aren’t able to hide behind the laws to get away with doing egregious things.

Changing From Our Current System to Truth-Seeking Will Solve The Problem With Attorney-Corporate relationships. BPG

Deborah L. Rhode & Paul D. Paton, 2002. “ Lawyers, Ethics, and Enron.” http://www.thecorporatescandalreader.com/forms/04c%20rhode.pdf.

Of course, reforming professional rules will not of itself transform professional culture. Indeed, many commentators have highlighted the limitations of doctrinal tinkering in their assessment of new criminal prohibitions proposed in the wake of Enron. According to some critics, these new provisions are “as likely to make things worse as make them better. The reason is both too simple and all too easily ignored: Criminal laws




http://www.thecorporatescandalreader.com/forms/04c%20rhode.pdf

November/December 2013 Pro: ACP abuse by corporationslead people to focus on what is legal instead of what is right.”140 Similar claims are often made about a rule-bound approach to professional ethics. But at least some of the problems involved in Enron and subsequent corporate scandals involved a failure to focus on what was legal or on gaps in what the law required.141 Moreover, good rules can prescribe as well as prohibit; they can encourage individuals to behave in socially defensible ways by framing the interests at issue in terms of accepted moral values.142 Regulation is no substitute for internalized norms, but it can foster their development and reinforce their exercise.143Efforts to rethink professional regulatory standards could also profit from international comparisons. In an era of increasing globalization in legal practice, it makes sense to consider how other nations deal with similar issues.144 For example, although American lawyers generally view client loyalty and adversarial practices as pre-eminent values, other common law systems function effectively without such norms. The English and Canadian legal professions recognize greater obligations as officers of the court than does their American counterpart.145 American lawyers’ tendency to privilege client interests over other values is not, of course, readily challenged. The current norm is rooted not only in practitioners’ bottom-line concerns, as Vinson & Elkins alleged conduct amply demonstrates, but also in cognitive psychological processes. As many legal ethics experts note, in cases of client misconduct, lawyers’ professional norms of client loyalty often conflict with personal norms of honesty and integrity. To reduce the cognitive dissonance, lawyers will often unconsciously dismiss or discount evidence of misconduct and its impact on third parties.146 The risks of such dissonance are exacerbated when lawyers bond socially and professionally with the client’s management team. The more that counsel blends into the culture of corporate insiders, the greater the pressures of conformity to group norms. That, in turn, encourages lawyers to underestimate risk and to suppress compromising information in order to preserve internal solidarity.147 Yet in the long run, this dynamic may ill serve all concerned. Clients lose access to disinterested advice; lawyers lose capacity for independent judgment and moral autonomy; and the public loses protection from organizational misconduct. Enron is a case history of all those costs.

This card should be read before the rest of the cards about Enron. This card explains how it is the culture of discouraging truth-seeking that causes lawyers to do things that are in the best interest of the corporations even if it harms everyone else.



Explanation of How Enron Collapsed. BPGDeborah L. Rhode & Paul D. Paton, 2002. “ Lawyers, Ethics, and Enron.”

http://www.thecorporatescandalreader.com/forms/04c%20rhode.pdf.

Despite the risks of oversimplifying an extraordinarily complex saga, a brief summary of key facts is necessary to understand the role of lawyers involved with Enron.23 The company was formed in 1985 from a merger of Houston Natural Gas and Internorth. This merger created America’s first nationwide natural gas pipeline network. Over time, the firm’s business focus shifted from regulated transportation of natural gas to energy trading in an increasingly deregulated environment. During this evolution, top management ventured away from traditional approaches to the core business in order to generate higher financial returns.24 According to a Congressional Research Service Report, “[t]he guiding principle seems to have been that there was more money to be made in buying and selling financial contracts linked to the value of energy assets (and to other economic variables) than in the actual ownership of physical assets.”25 A Special Investigation Committee of Enron’s Board of Directors (the “Powers Committee”) was established in late October 2001 as the scandal was nearing the height of public exposure. […]For answers, Enron relied on assistance not only from accountants and auditors at Andersen, but also from its in-house lawyers and outside counsel at Vinson & Elkins. These attorneys all played an important role in the process of drafting and certifying disclosure statements, and in advising whether the legal and accounting requirements governing SPEs and SPVs had been met.31 The Powers Report noted that, in some cases, transactions were designed specifically for the results they would produce on financial statements, not for legitimate economic objectives. Nor were the transactions adequately disclosed. Further, even though Enron’s public filings revealed the existence of Enron’s transactions with the partnerships, “the disclosures were obtuse, did not communicate the essence of the transactions completely or clearly, and failed to convey the substance of what was going on between Enron and the partnerships.”32 Other transactions were used to offset investment losses and to create the appearance that the investments had been “hedged” against risk of loss by a third party, even though Enron was the only investor with a significant financial stake in the third party. In effect, it was “hedging” against itself and thus still liable for the losses. As the Powers Report later concluded, these transactions “appear to have been designed to circumvent accounting rules by recording hedging gains to offset losses . . . in the value of merchant investments on Enron’s quarterly and annual income statements. The economic reality of these transactions was that Enron never escaped the risk of loss, because it had provided the bulk of the capital with which the SPEs would pay Enron.”33 As the value of the merchant investments continued to fall in 2001, credit problems in SPE entities meant that they could no longer pay Enron on the “hedges.” The SPEs were terminated in September 2001, resulting in a surprise announcement that was the first public disclosure even hinting at the severity of the problems.34This announcement came on



November/December 2013 Pro: ACP abuse by corporationsOctober 16, 2001, and marked the beginning of formal confirmations that matters had gone awry. Enron confirmed that it was taking a $544 million after-tax charge against earnings related to transactions with an investment partnership created and managed by Andrew Fastow, Enron’s former Executive Vice President and Chief Financial Officer, and by other Enron employees who worked with Fastow. About a month later, on November 8, 2001, Enron announced in an SEC filing that it was restating its financial statements for the years 1997 through 2001 because of “accounting errors relating to transactions with a different Fastow partnership . . . and an additional related-party entity.” The restatements reduced Enron’s reported net income by a total of $1.5 billion, reduced reported shareholder equity by over $2 billion, and shattered the confidence of the market and investors in the company. In November, Enron also revealed for the first time that it had learned that Fastow had received more than $30 million from two of the partnerships; other Enron employees involved in the partnerships had been enriched at Enron’s expense “in the aggregate, by tens of millions of dollars they should not have received.”35 On November 28, 2001, major bond rating agencies downgraded Enron’s debt to junk bond status. The company filed for chapter 11 bankruptcy on December 2, 2001

This card just serves as background information so that everyone is on the same page as to what happened in the Enron crisis. It also makes clear that lawyers had an integral role in Enron’s collapse.

Ways In Which Enron Abused The Attorney-Client Privilege. Lawyers feel no obligation to tell the truth and reveal to others corruption within the corporation they work for. BPG


B. Enron’s Outside Counsel: Vinson & Elkins Of equal concern is the role of Vinson & Elkins’s lawyers, Enron’s primary outside legal counsel, in structuring transactions and providing legal advice on public disclosure documents. While questions about the law firm’s exposure to malpractice suits remain open, the facts available to date suggest that the firm was more than a bystander to corporate misconduct.49 The failure of Vinson & Elkins motion to dismiss the major shareholder lawsuit filed against the firm suggests some credible evidence of complicity in fraud.50 Indeed, the Powers Report concludes that Vinson & Elkins provided advice and prepared documentation in connection with many of the [problematic] transactions. . . . It also assisted Enron with the preparation of its disclosures of related-party transactions in the proxy statements and the footnotes to the financial statements in Enron’s periodic SEC filings. Management and the Board relied heavily on the perceived approval by Vinson & Elkins of the structure and disclosure of the transactions. Enron’s Audit and Compliance Committee, as well as in-house counsel, looked to it for assurance that Enron’s public disclosures were legally sufficient. It would be



November/December 2013 Pro: ACP abuse by corporationsinappropriate to fault Vinson & Elkins for accounting matters, which are not within its expertise. However, Vinson & Elkins should have brought a stronger, more objective and more critical voice to the disclosure process.51 Vinson & Elkins’s leaders have denied that the firm acted improperly. In their view, outside lawyers may assist in a transaction that is not illegal and that has been approved by company management. In so doing, “the lawyers are not approving the business decisions made by the clients.”52 Yet not only is that an unduly circumscribed understanding of the lawyer’s ethical responsibilities, it also begs the question of who is the “client.” As our subsequent discussion notes, the firm’s response also raises a question that has become central to debates over regulatory reform: when do lawyers have an obligation to bring dubious conduct to the attention of more senior management or the board of directors?53 A related issue involves the responsibility of Vinson & Elkins when it was asked to investigate initially anonymous allegations by Sherron Watkins.54 In August 2001. Watkins, Enron’s vice president of corporate development, wrote an anonymous sixpage memo to Kenneth Lay, Enron’s Chairman and CEO, detailing her concerns about the propriety of Enron’s disclosure statements and accounting treatment of the SPE and partnership transactions. Watkins recommended that Enron’s Chief General Counsel hire an independent law firm to investigate the transactions, and specifically advised against using Vinson & Elkins. As she noted, “(Can’t use V&E due toconflict—they provided some true sale opinions on some of the deals).”55 In agreeing to take on this investigation, Vinson & Elkins placed itself in the position of evaluating its own work. The firm also agreed to highly restrictive limitations on the scope of its review, which further circumscribed the value of its advice.56 […] That report criticizes Vinson & Elkins’s actions with respect to many aspects of the investigation. Because Enron’s General Counsel had instructed Vinson & Elkins that a detailed examination of the relevant transactions and discussions with accounting advisors need not be part of the law firm’s review, the “result of the V&E review was largely predetermined by the scope and nature of the investigation and the process employed.”63 By contrast, the Powers Report notes that its own investigation was able to identify the most serious problems at Enron only after making the detailed inquiries that Vinson & Elkins had agreed were unnecessary. In reaching that conclusion, Vinson & Elkins lawyers had interviewed only “very senior people” at Enron and Andersen, who “with few exceptions, had substantial professional and personal stakes in the matters under review.”64 So did Vinson & Elkins, given its advice on the events under scrutiny and its ties to the key players. The firm’s willingness to undertake a review, given this conflict of interest, is emblematic of the broader concerns about professional accountability discussed in Part IV below.

This card explains exactly how Enron’s main attorney’s hid information and felt that they had no obligation to tell others about what actually was happening within the corporation. This card makes arguments specifically about counsel which comes from outside of the corporation itself (ie. An external law-firm).



More Ways In Which Enron Abused The Attorney-Client Privilege. Lawyers feel they have no obligation to tell the truth (especially in-house counsel). BPG


The role of Enron’s in-house counsel in structuring critical transactions and advising the firm on disclosure requirements reflects longstanding issues about conflicts of interest and professional independence. The Powers Report’s detailed references to these lawyers make clear their integral contribution to the creation and operation of the various partnerships and SPEs; to the negotiations between Enron and the partnership entities; and to the preparation of related-party proxy disclosure statements. In assessing that conduct, the Report criticized “an absence of forceful and effective oversight by Senior Enron Management and in-house counsel” in the failure to disclose meaningful information about the SPEs and the essential nature of the transactions in issue.41 Of still greater concern was the Powers Report’s finding that one of the company’s in-house lawyers, Kristina Mordaunt, not only gave advice on the SPE transactions, but also invested her own money in one of the entities. She did so without obtaining the consent of Enron’s Chairman and CEO, in violation of Enron’s Code of Conduct.42 Mordaunt reportedly received $1 million in return for a $5,800 investment.43That investment may also have violated bar disciplinary rules concerning conflicts of interest.44 The Powers Report itself notes, though, that Mordaunt later admitted that her participation in the SPE was an error in judgment and that “she did not consider the issue carefully enough at the time.”45 By contrast, at least two Enron attorneys had serious concerns about the company’s financial conduct, but were stymied by other Enron lawyers or managers in efforts to respond. A case in point involves a September 2000 memo by an Enron North America attorney expressing concern about the possibility that “the financial books at Enron are being ‘cooked’ in order to eliminate a drag on earnings that would otherwise occur under fair value accounting.”46 More senior attorneys who received the memo did not believe the factual assertions on which the memo’s conclusions were based, but conducted no investigation to verify their belief and took no further action. A second example involves an Enron attorney who reportedly asked the law firm of Fried Frank Harris Shriver & Jacobsen to review the legality of the partnerships and SPEs. After Fried Frank recommended that Enron halt the practice of using such structures, the Enron attorney sent written internal memoranda to company executives to the same effect.47 The failure by more senior counsel and by Enron executives to follow such advice, or to investigate its factual basis, suggests greater problems with the corporate culture—one that prized aggressive behavior, put a premium on risk, and “valued appealing lies over inconvenient truths.”48



November/December 2013 Pro: ACP abuse by corporationsIn-house lawyers (lawyers within a corporation itself) have a conflict in interest when advising a corporation. They will tell a corporation to do what is best for itself, but not what is most moral or what is legal.

Enron’s In-House Counsel felt justified in shredding documents and concealing information even though it disrupted seeking truth. BPG


C. Andersen’s In-House Counsel Nancy Temple, in-house counsel at Andersen, emerged as a key figure in Andersen’s demise, and her actions have been a controversial centerpiece in discussions of lawyers’ social responsibilities. As noted earlier, Andersen played a crucial role in creating and auditing questionable investment vehicles, and in certifying Enron’s financial statements and public disclosures. Accordingly, Andersen’s documents regarding those matters could be critical to government investigators and civil litigants. The firm’s detailed document retention policies called for the destruction of all nonessential draft documents or conflicting documentation relating to an audit, including the e-mails, voicemail messages, and desk files of Andersen personnel working on the audit.65 The policy itself was not unusual; what created problems was the timing and manner of Temple’s calls for compliance with the policy.66 Temple’s actions became the subject of a highly unflattering congressional hearing in January 2002.67 Committee members were left incredulous by her characterization of actions concerning Andersen’s document retention and destruction as customary housekeeping duties. She admitted awareness, prior to October 8, of allegations by an Enron employee of inappropriate accounting procedures, as well as an investigation by Vinson & Elkins. She also admitted that between September 28 and October 12, she provided legal advice about specific documentation and retention issues.68 The SEC placed Enron under investigation in early October, and it confirmed that fact publicly in an October 22 press release. Temple’s notes from a conference call on October 8 anticipated that outcome: “Highly probable some SEC investigation.”69 Despite her knowledge, Temple sent an e-mail on October 12 to Andersen’s Houston practice director making reference to the firm’s document retention and destruction policy: “It might be useful to consider reminding the engagement team of our documentation and retention policy. It will be helpful to make sure that we have complied with that policy.”70 On October 23, David Duncan, Andersen’s lead engagement partner on the Enron audit, ordered his team to comply with Andersen’s policy and gathered all of the documents relating to Enron. Andersen officials later admitted that significant numbers of documents were shredded between this time and November 10. Media reports chronicled the accumulation of more than eighteen trunks and thirty boxes of documentary debris on only one of the days at one of the offices.71 Not until November 10, after the SEC had subpoenaed documents from Andersen concerning its Enron investigation and after Andersen had received a second subpoena in a related lawsuit, did Temple instruct the Enron engagement team “to preserve documents, computer files and other information relating to Enron.”… The jury that convicted Andersen of obstructing the SEC’s Enron investigation took a similar view, but paid closer attention to Temple’s other activities. Jurors reportedly were less concerned with Temple’s “shredding memo” than with one of her emails to Duncan and the Enron team. The e-mail suggested changes to a draft memo that Duncan



November/December 2013 Pro: ACP abuse by corporationshad prepared about a forthcoming Enron press release concerning its third quarter financial results. Temple’s modifications deleted references in the memo to Andersen’s legal counsel, herself included, in order to protect the attorney-client privilege and to minimize “the chances that I might be [called as] a witness, which I prefer to avoid.”81 Temple’s note also recommended “deleting some language that might suggest we have concluded [Enron’s] release is misleading.”82 The jury interpreted this language as evidence of criminal intent to withhold information from SEC investigators.83 The jury’s comments to reporters after the conviction explaining their rationale became a primary basis of Andersen’s appeal.84 In a New York Times article after the verdict, Stephen Gillers, a prominent legal ethics expert, defended Temple’s actions as “the kind of advice that lawyers routinely give.”85 Other ethics experts take a different view.86 Under the statutes and ethics rules of most jurisdictions, it is unethical to destroy documents if they are subject to discovery or relevant to a “clearly foreseeable” legal action.87 The facts currently available permit the inference that Temple knew or should have known that a proceeding was clearly foreseeable at the time that she reminded Andersen partners and employees about document retention policy. Her failure to clarify the need to preserve critical Enron-related materials was highly problematic. Her instructions on revising a characterization of financial disclosure was problematic as well, particularly if part of the motivation was her own self-interest in avoiding involvement in the government’s investigation.88 In any event, whether or not Temple violated bar ethical rules, it is troubling that so many lawyers, including ethics experts like Gillers, assumed that such actions are “routine.” If current norms and standards of conduct permit complicity in frustrating federal investigation, then reform initiatives are clearly appropriate.

This card provides more warrants as to how Enron’s in-house counsel attempted to conceal evidence. This card shows some of the most egregious examples of what Enron’s lead attorney did in the name of protecting its client even though it violated truth-seeking.

Legal Institutions Have Solidified The Power of Corporations in Society And Allowed for the Rise of Capitalism in America. BPG

Anup Shah 2002. “The Rise of Corporations” http://www.globalissues.org/article/234/the-rise-of-corporations.

As corporations did manage to increase their wealth and therefore political power, laws that initially tried to manage them were further relaxed. As Arrighi mentions throughout his book, corporations would benefit from the State’s war-making activities, further increasing their wealth and influence. Yet, it was claiming of a corporation to be an individual in the United States in the 1800s, and claiming the same rights as a person that helped to provide for large expansion of corporate capitalism: [A U.S.] Supreme Court ruling in 1886 ... arguably set the stage for the full-scale development of the culture of capitalism, by handing to corporations the right to use their economic power in a way they never had before. Relying on the Fourteenth Amendment, added to the Constitution in 1868 to protect the rights of freed slaves, the Court ruled that a private corporation is a natural person under the U.S. Constitution, and consequently has the same rights


http://www.globalissues.org/article/234/the-rise-of-corporations

http://www.globalissues.org/article/234/the-rise-of-corporations

November/December 2013 Pro: ACP abuse by corporationsand protection extended to persons by the Bill of Rights, including the right to free speech. Thus corporations were given the same “rights” to influence the government in their own interests as were extended to individual citizens, paving the way for corporations to use their wealth to dominate public thought and discourse. The debates in the United States in the 1990s over campaign finance reform, in which corporate bodies can “donate” millions of dollars to political candidates stem from this ruling although rarely if ever is that mentioned. Thus, corporations, as “persons,” were free to lobby legislatures, use the mass media, establish educational institutions such as many business schools founded by corporate leaders in the early twentieth century, found charitable organizations to convince the public of their lofty intent, and in general construct an image that they believed would be in their best interests. All of this in the interest of “free speech.” — Richard Robbins, Global Problems and the Culture of Capitalism, (Allyn and Bacon, 1999), p.100 (Bold Emphasis Added) As Robbins further points out, from this ability to influence, “corporate libertarianism” emerged, which placed the rights and freedoms of corporations above that of individuals. This influence also led to cultural and economic ideologies known by numerous names such as neoliberal, libertarian economics, market capitalism, market liberalism etc. Some of the guiding principles of this ideology, as Robbins continues, included: Sustained economic growth as the way to human progress Free markets without government “interference” would be the most efficient and socially optimal allocation of resources Economic globalization would be beneficial to everyone Privatization removes inefficiencies of public sector Governments should mainly function to provide the infrastructure to advance the rule of law with respect to property rights and contracts. However, the assumptions behind these principles are questionable as much as the principles themselves.

This card explains the problem that needs to be solved in the status quo. After reading this card, you should explain why denying corporations the right to a useful legal consultant would thus hinder their capitalistic goals. This card establishes the link between lawyers, corporations, and capitalism. This will give you what you need to make claims that hindering corporations will in some way hinder capitalism, This card is probably better than the card coming next if you only have time for one, but they are both still useful for establishing this link.

Lawyers Assist Corporations in Having Control Over Truth, Technology, and Information. BPG

R. Buckminster Fuller ,1981. “Critical Path.” http://solutions.synearth.net/2002/03/13/.The Wall Street lawyers´ grand strategists sent a man named Lewis Strauss to Washington to join in the World War II effort. Strauss was a partner in the Wall Street banking house of Kuhn, Loeb. He was also a brilliant son-in-law of Adolph Ochs, president of The New York Times. Strauss was made an admiral in gratitude for his forsaking Wall Street to help America win the war. After the war Admiral Strauss was


http://solutions.synearth.net/2002/03/13/

November/December 2013 Pro: ACP abuse by corporationsappointed to the Atomic Energy Commission; in 1953 Eisenhower named him commission chairman. Strauss and the Wall Street lawyers persuaded Eisenhower that the Atomic Energy Commission must not be in competition with capitalism and must be turned over to private enterprise. So it was–$155 billion worth of it, all of which had been paid for by the American public–but it consisted of work so secret that only the scientists who were intimate with the work understood it. All that was necessary to correct the situation was to give contracts to private enterprise to carry on the atomic work and to let the government´s scientists go to work for the private-enterprise corporations. At this point the Wall Street lawyers and Strauss persuaded Eisenhower that the United States Bureau of Standards´ scientists were in competition with private enterprise and must be curbed. Strauss assured Eisenhower that the corporations would take on all the bureau´s discarded scientists. What the Wall Street lawyers´ grand strategists realized was something momentous–to wit . . . that in the new 99.9-percent invisible reality of alloys, chemistry, electronics, and atomics, scientific and technical know-how was everything. Physical land and buildings were of no further interest to capitalism. Metaphysical know-how was the magic wand of the second half of the twentieth-century world power structures. Physical properties were subject to deterioration, taxable, and cumbersome. Advised to do so by their lawyers, capitalism and private enterprise set about after World War II to monopolize all strategic technological know-how–i.e., all metaphysical properties–and to dump all physical properties. They called for an economic program by which people would be forced to buy the apartments and houses–to get all physical properties off capitalism´s hands. *What the Wall Street Lawyers and the men they worked for were realizing was that much of today´s wealth is not in the land and natural resources, nor is it found in cash, stocks or bonds, nor is it in all the personal possessions that we all hold so dear. It is in the evermore powerful tools and technology that results from the accumulation of our human Time-binding power. Present humanity is always the inheritor of the knowledge and technology of past humanity. Our quality of life is always richer, better, safer, healthier, simply because we are later. But present humans pay nothing for this rich inheritance. We take our wonderful inheritance and accept is as our due. We are not even aware that it is an inheritance. We simply call it progress. Fuller tells us that the goal of the Wall Street Lawyers was to control and own progress. The post-Eisenhower era becomes most suitably identified as that of lawyer capitalism and of no-risk, sure-thing, free enterprise. Lawyer Capitalism and the Know-how Club The whole of atomic development was know-how. Scientists had the know-how, and anybody without their technical information could not even speak their language. The Know-How Club, monopolized by lawyer capitalism, was a very tight club. Furthermore, the nonmember four billion plus human beings on planet Earth knew nothing about the invisible micro-macro, non-sensorially-tune-in-able reality. Large private enterprise had now hired all the know-how scientists and engineers. They seemingly could keep the public out of their affairs forever. The world power structure had the U.S. government completely emasculate the Bureau of Standards. There was an earnest and concerned battle by a few responsible scientists to keep the bureau intact, but they were overwhelmed. Henceforth all science must be done by the private corporations themselves or under their subsidized university-


November/December 2013 Pro: ACP abuse by corporationscollege and private laboratory work. To appreciate the extent of this know-how monopoly of the big corporations, one need only look over the wording of the scientist and engineering help-wanted advertisements of the big corporations in the many pages of The New York Times Sunday business section or of their counterpart publications in other big cities.

This card also establishes the relation between lawyers, capitalism, and corporations, but with different warrants. This card argues that the lawyers obtain corporations a control over information through patents that allows them to serve as the bastions of capitalism in society.

Next are 2 impacts to the endorsement of capitalism. Obviously there is an endless amount of literature, but these 2 should be enough to get you started and give you ideas of what other arguments might be out there. These cards give an impact to the fact that by emphasizing truth-seeking you are doing damage to corporations and thus capitalistic society. These cards only matter as long as you win the link between lawyers, capitalism, and corporations because they explain the impact of that relationship.

Capitalism is Responsible For Our Current Ecological Crisis. BPGJoel Kovel 2002. The Enemy of Nature, p. 51-2. Capital’s responsibility for the ecological crisis can be shown empirically, by tracking down ecosystemic breakdowns to the actions of corporations and/ or governmental agencies under the influence of capital’s force field. Or it can be deduced from the combined tendencies to degrade conditions of production (the Second Contradiction), on the one hand, and, on the other, the cancerous imperative to expand. Although the Second Contradiction may be offset in individual circumstances by recycling, pollution control, the trading of credits and the like, the imperative to expand continually erodes the edges of ecologies along an ever-lengthening perimeter, overcoming or displacing recuperative efforts and accelerating a cascade of destabilization. On occasion, the force of capital expansion can be seen directly — as when President George W Bush abruptly reversed his pledge to trim emissions of CO2 in March 2001, the day after the stock market went into free-fall and in the context of a gathering crisis of accumulation. More broadly, it operates through a host of intermediaries embedded within the gigantic machine for accumulation that is capitalist society. We need to take a closer look at how this society works on the ground. Too much is at stake to close the argument with a demonstration of abstract laws. Capital is no automatic mechanism, and the laws it obeys, being mediated by consciousness, are no more than tendencies. When we say ‘capital does this’ or that, we mean that certain human actions are carried out under the auspices of capital. We need to learn, then, as much as we can about just what these actions are and how they can be changed. Capital originates with the exploitation of labour, and takes shape as this is subjected to the peculiar forces of money Its nucleus is the abstraction of human transformative power into labour-power for sale on the market. The nascent capitalist economy was fostered by the feudal state, then took over that state (often through revolution), centring it about capital accumulation. With this, the capitalist mode of production was installed as such after which capital began to convert society into its image and created the conditions for the ecological crisis. The giant corporations


November/December 2013 Pro: ACP abuse by corporationswe rightly identify as ecological destroyers are not the whole of capital, but only its prime economic instruments. Capital acts through the corporation, therefore, but also across society and within the human spirit. Broadly speaking, this has taken place in three dimensions — existentially, temporally and institutionally In other words, people increasingly live their lives under the terms of capital; as they do so, the temporal pace of their life accelerates; finally, they live in a world where institutions are in place to secure this across an ever-expanding terrain: the world of globalization. In this way a society, and a whole way of being, are created hostile to the integrity of ecosystems.

This argument just states that capitalism encourages people to abuse the environment in favor of producing capital for the market. Think of the large factories that emit pollution so that they can produce more products or the large amount of waste associated with the packaging of goods.

The calculative nature of capitalism reduces entire populations to human recourses and negates the value of human life. BPG

Joel Kovel 2002. The Enemy of Nature, p. 51-2. The monster that now bestrides the world was born of the conjugation of value and dominated labour. From the former arose the quantification of reality, and, with this, the loss of the differentiated recognition essential for ecosystemic integrity; from the latter emerged a kind of selfhood that could swim in these icy waters. From this standpoint one might call capitalism a 'regime of the ego', meaning that under its auspices a kind of estranged self emerges as the mode of capital's reproduction. This self is not merely prideful - the ordinary connotation of 'egotistical' - more fully, it is the ensemble of those relations that embody the domination of nature from one side, and, from the other, ensure the reproduction of capital. This ego is the latest version of the purified male principal emerging aeons after the initial gendered domination became absorbed and rationalized as profitability and self-maximization (allowing suitable 'power women' to join the dance). It is a pure culture of splitting and non-recognition: of itself, of the otherness of nature and of the nature of others. In terms of the preceding discussion, it is the elevation of the merely individual and isolated mind-as-ego into a reigning principle. Capital produces egoic relations, which reproduce capital. The isolated selves of the capitalist order can choose to become personifications of capital, or may have the role thrust upon them. In either case, they embark upon a pattern of non-recognition mandated by the fact that the almighty dollar interposes itself between all elements of experience: all things in the world, all other persons, and between the self and its world: nothing really exists except in and through monetization. This set-up provides an ideal culture medium for the bacillus of competition and ruthless self-maximization. Because money is all that 'counts', a peculiar heartlessness characterizes capitalists, a tough-minded and cold abstraction that will sacrifice species, whole continents (viz. Africa) or inconvenient sub-sets of the population (viz. black urban males) who add too little to the great march of surplus value or may be seen as standing in its way. The presence of value screens out genuine fellow-feeling or compassion, replacing it with the calculus of profit


November/December 2013 Pro: ACP abuse by corporationsexpansion. Never has a holocaust been carried out so impersonally. When the Nazis killed their victims, the crimes were accompanied by a racist drumbeat, for global capital, the losses are regrettable necessities.

This argument is a dehumanization argument that says in capitalistic society humans lose all value because all that matters in the monetization of things and nothing more.



Democracy mediated by capital is nothing more than the underside of totalitarianism, it justifies violence and exclusion in the name of people who form its basis. BPG

Slavoj Zizek, 2007. “Robespierre of the Divine Violence of Terror,” http://www.lacan.com/zizrobes.htm.

The Orwellian proposition "democracy is terror" is thus democracy's "infinite judgment," its highest speculative identity. This dimension gets lost in Claude Lefort's notion of democracy as involving the empty place of power, the constitutive gap between the place of power and the contingent agents who, for a limited period, can occupy that place. Paradoxically, the underlying premise of democracy is thus not only that there is no political agent which has a "natural" right to power, but, much more radically, that "people" themselves, the ultimate source of the sovereign power in democracy, doesn't exist as a substantial entity. In the Kantian way, the democratic notion of "people" is a negative concept, a concept whose function is merely to designate a certain limit: it prohibits any determinate agent to rule with full sovereignty. (The only moment when "people exists" are the democratic elections, which are precisely the moment of the disintegration of the entire social edifice - in elections, "people" are reduced to a mechanical collection of individuals.) The claim that people does exist is the basic axiom of "totalitarianism," and the mistake of "totalitarianism" is strictly homologous to the Kantian misuse ("paralogism") of political reason: "the People exists" through a determinate political agent which acts as if it directly embodies (not only re-presents) the People, its true Will (the totalitarian Party and its Leader), i.e., in the terms of transcendental critique, as a direct phenomenal embodiment of the noumenal People... The obvious link between this notion of democracy and Lacan's notion of the inconsistency of the big Other was elaborated by Jacques-Alain Miller, among others: Is 'democracy' a master-signifier? Without any doubt. It is the master-signifier which says that there is no master-signifier, at least not a master-signifier which would stand alone, that every master-signifier has to insert itself wisely among others. Democracy is Lacan's big S of the barred A, which says: I am the signifier of the fact that Other has a hole, or that it doesn't exist. [21] Of course, Miller is aware that EVERY master-signifier bears witness to the fact that there is no master-signifier, no Other of the Other, that there is a lack in the Other, etc. - the very gap between S1 and S2 occurs because of this lack (as with God in Spinoza, the Master-Signifier by definition fills in the gap in the series of "ordinary" signifiers). The difference is that, with democracy, this lack is directly inscribed into the social edifice, it is institutionalized in a set of procedures and regulations - no wonder, then, that Miller approvingly quotes Marcel Gauchet about how, in democracy, truth only offers itself "in division and decomposition" (and one cannot but note with irony how Stalin and Mao made the same claim, although with a "totalitarian" twist: in politics, truth only emerges through ruthless divisions of class struggle...). It is easy to note how, from within this Kantian horizon of democracy, the "terrorist" aspect of democracy - the violent egalitarian imposition of those who are "surnumerary," the "part of no part" - can only appear as its "totalitarian" distortion, i.e., how, within this horizon, the line that separates the


http://www.lacan.com/zizrobes.htm#_ftn21

http://www.lacan.com/zizrobes.htm

November/December 2013 Pro: ACP abuse by corporationsauthentic democratic explosion of revolutionary terror from the "totalitarian" Party-State regime (or, to put it in reactionary terms, the line that separates the "mob rule of the dispossessed" from the Party-State brutal oppression of the "mob") is obliterated.

This card is extremely useful on this topic as an extension for your arguments. This should be read in the 1AR as an answer to negative(con) arguments couched in democratic principles. According to Zizek, democracy turns people into nameless objects that count no more than their vote for a candidate. This coincides very well with the impact to capitalism described by Kovel above which explains that capitalism turns people into worthless objects. Both of these combined means that capitalism and democracy actually go hand in hand in creating a “totalitarian” state where the people are worthless. Thus, if the Neg/Con tries to explain why democratic institutions in the United States protect the people against abuse of a capitalistic system or if they try to establish a framework based on the democratic nature of the United States, this card means that all your arguments about corporations and capitalism just turn their arguments because democracy just makes the issues of capitalism worse.

We Must Resist Any Manifestation of Capitalism. BPGFelix Guattari & Antonio Negri, 1989. The Guattari Reader. Pg 254-256The first basic task of the revolutionary communist movement consists in having done with this sort of conception and in affirming the movement's radical separation not only from the State which it directly confronts but also, more fundamentally, from the very model of the capitalist State and all its successors, replacements, derived forms, and assorted functions in all the wheels of the socius, at all levels of subjectivity. Thus, to the struggles around welfare, against the organization of productive labor and of labor's social time, and to communitarian initiatives in this domain, should be added questioning the State as the determinant of different forms of oppression, the machine for overdetermining social relations, in order to reduce, block and radically subjugate them, under the threat of its forces of death and destruction. This question leads us to formulate a second diagrammatic proposition of communism and liberation: it concerns the urgency of reterritorializing political practice. Confronting the State today means fighting against this particular formation of the State, which is entirelyintegrated into IWC. After Yalta, political relations were further emptied of their territorial legitimacy and drifted towards levels impossible to attain. Communism represents the tendential destruction of those mechanisms which make of money and other abstract equivalents the only territories of man. This does not imply nostalgia for "native lands", the dream of a return to primitive civilizations or to the supposed communism of the "good savage". It is not a question of denying the levels of abstraction which the deterritorialized processes of production made man conquer. What is contested by communism are all types of conservative, degrading, oppressive reterritorialization imposed by the capitalist and/or socialist State, with its administrative functions, institutional organs, its collective means of normalization and blockage, its media, etc The


November/December 2013 Pro: ACP abuse by corporationsreterritorialization induced by communist practice is of an entirely different nature; it does not pretend to return to a natural or universal origin; it is not a circular revolution; rather it allows an "ungluing" of the dominant realities and significations, by creating conditions which permit people to "make their territory", to conquer their individual and collective destiny within the most de territorialized flows. (In this regard, one is led to distinguish very concretely: the movements of nationalist reterritorialization Basque, Palestinian, Kurdish- which assume, to a certain extent, the great deterritorialized flows of Third World struggles and immigrant proletariats, and the movements of reactionary nationalist reterritorialization). Our problem is to reconquer the communitarian spaces of liberty, dialogue and desire. A certain number of them are starting to proliferatein different countries of Europe. But it is necessary to construct, against he pseudo-reterritorializations of IWC(example: the "decentralization" of France, or of the Common Market), a great movement of reterritorializing bodies and minds: Europe must be reinvented as a reterritorialization of politics and as a foundation for reversing the alliances of the North-South axis. The third task of the revolutionary communist movement is thus also to "disarticulate" and dismantle the repressive functions of the State and its specialized apparatuses. This is the sole terrain on which new collective subjects confront the initiatives of the State, and only in the sense that the latter dispatches its "teutonic cavaliers" over those areas liberated by the revolutionary arrangements. Forces of love and humor should be put to work here so that they are not abolished, as is usually the case, in the mortally abstract and symbolic lunar image of their capitalist adversary! Repression is first and foremost the eradication and perversion of the singular. It's necessary to combat it within real life relations of force; it's also necessary to get rid of it in the registers of intelligence, imagination, and of collective sensitivity and happiness. Everywhere it's necessary to extract, including from oneself, the powers of implosion and despair which empty reality and history of their substance. The State, for its part, can live out its days in the isolation and encirclement reserved for it by a reconstructed civil society! But if it appears about to come out of its "retreat" and to reconquer our spaces of freedom, then we will respond by submerging it within a new kind of general mobilization, of multiform subversive alliances. Until it dies smothered in its own fury. […] Everything is to be redone, everything is constantly to be reconsidered. And it's good that it is so. The State is only a cold monster, a vampire in interminable agony which derives vitality only from those who abandon themselves to its simulacra. In '68, no one could imagine that war would so quickly become such a close and encroaching horizon. Today, war is no longer a prospect: it has become the permanent frame of our lives. The third great imperialist war has already begun. A war no doubt grows old after thirty years, like the Thirty Years War, and no one recognizes it any longer; even though it has become the daily bread of "cenain" among the press. Yet such has resulted from capitalism's reorganization and its furious assaults against the world proletariats. The third diagrammatic proposition of communism and liberation consists in becoming aware of this situation and assuming the problematic of peace as fundamental to the process of reversing alliances along the North-South axis. Less than ever, peace is not an empty slogan; a formula of “good conscience"; a vague aspiration. Peace is the alpha and omega of the revolutionary


November/December 2013 Pro: ACP abuse by corporationsprogram. The anguish of war sticks to our skin, pollutes our days and nights. Many people take refuge in a neutralist politics. But even this unconsciousness generates anguish. Communism will tear men and women away from the stupidity programmed by IWC and make them face the reality of this violence and death, which the human species can conquer if it succeeds in conjugating its singular potentials of love and reason. And finally, to these alliances of productive organization and liberated collective subjectivities should be added a fifth dimension - of which wehave already spoken - that of organization itself. The time has come to move from sparse resistance to constituting determinate fronts and machines of struggles which, in order to be effective, will lose nothing of their richness, their complexity, of the multivalent desires that they bear. It belongs to us to work for this transition.

This card should be used as weighing analysis for why your arguments about corporations outweigh any of the impacts they have talked about. This card argues that the only way to get rid of capitalism is to get rid of all manifestations of it, and thus if the anti-truth seeking culture is part of it, then it needs to go no matter what. This card should be utilized if they argue that you aren’t really solving for all of the impacts described in Kovel cards about why capitalism is bad; Guattari says the only way to solve the issue is never cede to the political manifestations that allow for the status quo to continue.



Framework: The Criminal Justice Systems Duty Is Defined By Its Function

Good and evil are relative to what is being described good or evil. Thus, values and criterion on this topic must relate specifically to what makes up a good Criminal Justice System,

not what is good in an abstract sense. BPGPeter T. Geach, 1956. “Good and Evil.” 1956.There are familiar examples of what I call attributive adjectives. Big and small are attributive; x is a big flea does not split up into x is a flea and x is big, nor x is a small elephant into x is an elephant and x is small; for if these analyses were legitimate, a simple argument would show that a big flea is a big animal and a small elephant is a small animal. Again, the sort of adjective that the mediaevals called alienans is attributive; x is a forged banknote does not split up into x is a banknote and x is forged, nor x is the putative father of y into x is the father of y and x is putative. On the other hand, in the phrase a red book red is a predicative adjective in my sense, although not grammatically so, for is a red book logically splits up into is a book and is red.

I can now state my first thesis about good and evil: good and bad are always attributive, not predicative, adjectives. this is fairly clear about bad because bad is something like an alienans adjective; we cannot safely predicate of a bad A what we predicate of an A, any more than we can predicate of a forged banknote or a putative father what we predicate of a banknote or a father. We actually call forged money bad; and we cannot infer e.g. that because food supports life bad food supports life. For good the point is not so clear at first sight, since good is not alienans--whatever holds true of an A as such holds true of a good A. But consider the contrast in such a pair of phrases as red car and good car. I could ascertain that a distant object is a red car because I can see it is red and a keensighted but colour-blind friend can see it is a car; there is no such possibility of ascertaining that a thing is a good car by pooling independent information that it is good and that it is a car. This sort of example shows that good like bad is essentially an attributive adjective. Even when good and bad stands by itself as a predicate, and is thus grammatically predicative, some substantive has to be understood; there is no such thing as being just good or bad, there is only being a good or bad so-and-so. (If I say that something is a good or bad thing, either thing is a mere proxy for a more descriptive noun to be supplied from the context; or else I am trying to use good or bad predicatively, and its being grammatically attributive is a mere disguise. The latter attempt is, on my thesis, illegitimate.)

This card states that good and bad only make sense in terms of what is being described as good or bad. For example, if you stated that you had a good car that means something very different from a good human. A good card should run well and get you where you want to go. Thus, when we are describing something (namely the Criminal Justice System) as being good or bad, we need to look at what the Criminal Justice System was designed to do in the first place.


November/December 2013 Pro: ACP abuse by corporationsYou can use this card in a variety of different frameworks for the AFF. For example, you could couple this with any of the cards above about how the criminal justice system is defined by its truth seeking function. This would mean that if the function of the criminal justice system is to find the truth, then nothing else really matters for the topic. Or, you could also put this with cards about how the function of the criminal justice system is to protect innocents in order to create a different framework.

The Criminal Justice System must be defined by what it is meant to do; any framework without a description of the function of the criminal justice system fails to prescribe a

meaningful ought. BPGAlasadair Macintyre, 1981. “After Virtue.” 1981.Aristotelian science sets strict boundaries to the powers of reason. Reason is calculative; it can assess truths of fact and mathematical relations but nothing more. In the realm of practice, therefore, it can speak only of means. About ends it must be silent. Reason canot even, as Descartes believed, refute skepticism; and hence a central achievement of reason according to Pascal, is to recognize that our beliefs are ultimately founded on nature, custom and habit. The teleological view of humans is rejected by K. Smith and Diderot. Kant sees no teleology in nature. To understand this is to understand why morality had to fall. Without a teleological framework the whole project of morality becomes unintelligible.

Folks said we could not get ought from is. Even syllogisms logic only applies within its own system. That depends on your use of the word ought and moral. A.N.Prior used this one. He is a sea-capitan. He ought to do whatever a sea-captain ought to do. An is can entail and ought.

But there is no moral there, said the no ‘ought’ from ‘is’ crowd. ‘This watch is inaccurate and irregular in time-keeping.’ Implies and evaluation. It follows that the concept of watch cannot be defined independently of the concept of a good watch.

Now clearly the set of criteria is factual. The no ‘ought’ argument must exclude functional concepts from its scope. Yet classical Aristotelian views (Greek and mideaval) involve function centrally. The relation of ‘man’ to ‘living well’ is analogous to that of ‘harpist’ to ‘playing the harp well’ (nicomachean Ethics, 109 5a 16) For according to that tradition to be a man is to fill a set of roles each of which has its own point and purpose: member of a family, citizen, soldier, philosopher, servant of God. It is only when man is thought of as an individual prior to and apart from all roles that ‘man’ ceases to be a functional concept.

What you should do in a role isn’t, however, moral, it is evaluative.

What I have described as a loss of traditional structure was seen as a gain by many. The self had been liberated from outmoded forms of social organization. Every action, Is the bearer and expression of more or less theory-


November/December 2013 Pro: ACP abuse by corporationsladen beliefs and concepts; every piece of theorizing and every expression of belief is a political and moral action.

This card makes the same claim and as Geach but has different warrants. You could run a framework with just Geach or just Macintyre, but having both gives you more warrants to extend in the 1AR. It all really depends on how much time you would like to spend on this argument.

Attorney-client exclusivity is on the decline – corporations prove. TF.Dostart, Zach (2006). Selective Disclosure: The Abrogation of the Attorney-Client

Privilege and the Work Product Doctrine. Pepperdine Law Review, 33 (3).Although the attorney-client privilege traditionally required absolute secrecy, the limited waiver repeals this notion. The limited waiver allows a client to disclose confidential communications to a third party and limit the scope of the waiver to that third party only. For example, federal prosecutors in investigatory organizations such as the SEC and the Department of Justice ("DOJ") commonly ask corporate counsel to waive the attorney-client privilege and turn over work product and attorney-client protected materials. Corporations undoubtedly wish they could hand over the documents for the sole purpose of assisting the SEC or other federal agency. However, without use of the selective or limited waiver, a third party may use the disclosed information against the corporation at some future time. Thus, the disclosure of this likely incriminating evidence can be very costly to corporations.

Establishes general trend of status-quo.



Conceptual challenge to the privilege in the modern context of corporate attorneys based on third-party involvement in corporations. AC.

Miller, Charles. “The Challenges to the Attorney-Client Privilege.” Virginia Law Review. 262 (1963).

Radiant Burners, Inc. v. American Gas Ass'n is a private antitrust suit in the United States District Court for the Northern District of Illinois in which the defendants are several utility companies and appliance manufacturers and an association of utility companies. In the course of pre-trial discovery some defendants declined to turn over certain documents to the plaintiff, asserting that they were confidential communications between attorney and client. The matter was submitted to Chief Judge Campbell who ordered the defendants to produce the documents in question, rejecting the defense on the ground that the attorney-client privilege was not available to corporations.

Judge Campbell's opinion first determined that while the corporation's right to the attorney-client privilege has been taken for granted by the bench and bar there has never been an authoritative analysis of the question of the corporation's right to such a privilege. Treating the question as one of first impression the judge concluded that the privilege was not available to corporate clients. Two reasons were given for the decision: First, the attorney-client privilege, like the privilege against self- incrimination, is "historically and fundamentally personal in nature" and, like the latter privilege, can be claimed only by natural persons.

Second, an essential element of the privilege is the confidentiality of the protected communications between lawyer and client. If the communications are "subject to being disclosed to third parties" the requisite confidentiality is lost and the privilege is lost with it. The number of persons connected with a corporate entity who have access to attorney-client communications precludes the essential confidentiality. Boards of directors are often composed of persons connected with entities with which the corporation deals; such persons cannot be considered the corporation's alter ego but must be regarded as outsiders. Moreover, shareholders who may have only a monetary interest in a corporation have inspection rights which include access to attorney- client communications, and this negates the confidentiality of the communications. Finally, states of incorporation have visitatorial powers, including access to attorney-client communications, which are exacted as the price of doing business in the corporate form. Hence, there can be no secrecy for attorney-client communications involving the corporate entity."


November/December 2013 Pro: ACP hinders truth-seeking

Attorney-Client Privilege Hinders Truth-Seeking Attorney-client privilege hinders truth seeking. TF.

Chatterton, Marcus (2007). How Innocent Are You?: The Intersection of Privileged Communications and the Actual Innocence Exception in Federal Habeas Corpus. Alabama Law Review, 58 (4).

“The attorney-client privilege is one of the oldest recognized privileges for confidential communications.” Its oft-cited purpose is “to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.” The common law notion of privileges applies with full force to the federal courts through Federal Rule of Evidence 501. Since Congress has explicitly opted to retain a common law approach to privileges, it is within the province of the federal courts to “continue the evolutionary development of testimonial privileges” in areas under their jurisdiction in light of their “reason and experience.” The very existence of the attorney-client privilege represents a conscious balancing of two competing interests—the search for truth and the desire to foster positive attorney-client interaction. But, because the privilege does act to withhold truth from the finder of fact, it is proverbially held to apply only where necessary to advance the right to counsel. Nevertheless, the general applicability of the attorney-client privilege is both uncontroversial and ubiquitous—it is beyond cavil that the privilege attaches to communications between a criminal defendant and his trial and remains in full force almost indefinitely. Thus, a habeas petitioner, like all other litigants, generally has the “right to refuse to disclose and to prevent any other person from disclosing confidential communications between the [petitioner] and the attorney” before, during, and well after the pendency of his claim.

Establishes discordance between attorney-client privilege and truth-seeking – doesn’t allow NEG to use both.

The attorney-client privilege, if protected for the purpose of establishing trust between the attorney and the client, promotes injurious legal practices and perspectives. AC.

Saltzbug, Stephen. “Communications Falling within the Attorney-Client Privilege.” Iowa Law Review. Vol. 811 (1980-1981). pp. 811-842.

If it is produced, then the question is why lawyers should be privileged to refuse to testify about what they see, especially when their observations will be requested only when the evidence itself cannot be obtained and other witnesses are not available. These observations cannot involve admissions by clients, since client communications about the object will be privileged.

The only answer appears to be that clients will not share the evidence as readily if lawyers may be called to testify about it. This seems correct, but this result is preferable to one that permits or encourages clients to share


November/December 2013 Pro: ACP hinders truth-seekingevidence with counsel and to benefit from the sharing, but makes the evidence inaccessible to opposing litigants. It is important that the attorney-client privilege be kept in perspective. It exists in an adversary system that encourages lawyers to represent particular interests, but to do so within a certain framework that is regarded as fair. Thus, a lawyer cannot realistically tell a client that he is entitled to do whatever it takes to help the client win or to protect the client. What the lawyer can say is that he will develop the client's case as best he can, produce the evidence favorable to the client in the most persuasive way he can, and endeavor to respond to an opponent's case as best he can.

In the course of representing the client, the lawyer may not destroy unfavorable evidence nor may he counsel the client to do go. Unless the privilege against self-incrimination or some other privilege entitles a client to refuse to answer questions properly put, the lawyer may not instruct his client to refuse to answer questions on the ground that the answers might help an opponent.

It is not a large step to conclude that a lawyer ought to make it clear to a client that the policy of the law is to make all existing evidence available to a tribunal that asks for it no matter whom it helps or hurts. If this is made clear, a lawyer can say with some pride that the legal profession does not encourage clients to hide evidence or to keep it to themselves any more than it encourages destruction of evidence. Any rule that would permit clients to share evidence with attorneys and then bar attorneys from testifying about the evidence if it cannot be found is inconsistent with this policy. It looks like a rule that is intended not to promote production of evidence, but one that is designed to give one party an edge over another in dealing with evidence. There is no need to extend the privilege this far.

Attorney-client privilege hinders truth-seeking. TF.Northrop, Daniel (2009). The Attorney-Client Privilege and Information Disclosed to an

Attorney with the Intention That the Attorney Draft a Document To Be Released to Third Parties: Public Policy Calls for at Least the Strictest Application of the Attorney-Client Privilege. Fordham Law Review 78 (3).

While the majority of legal thinkers have not called for the elimination of the attorney-client privilege, proponents of the privilege such as Wigmore recognized the dangers of an expansive privilege. For this reason, Wigmore advocated a strict application of his utilitarian framework. When balancing the "injury" to the attorney-client relationship with the benefits of disclosure, Wigmore only considered "extrinsic policy" concerns in his evaluation. Damage to a specific relationship, i.e., the potential dissolution of an attorney-client business arrangement, should not be relevant. Rather, the harm to the general class of relations is the appropriate concern. This position emphasized that only true public policy concerns justify the privilege. Additionally, despite the assertion that the privilege has no actual negative effect, numerous courts have


November/December 2013 Pro: ACP hinders truth-seekingagreed with Wigmore and held that privilege negatively burdens the search for justice. Consequently, these courts have stressed that the attorney-client privilege must be applied in the strictest fashion possible. As stated by the Fourth Circuit in National Labor Relations Board. v. Harvey, "'its benefits are all indirect and speculative; its obstruction is plain and concrete ....” It is worth preserving for the sake of general policy, but it is nonetheless an obstacle to the investigation of the truth. U.S. courts, though supportive of the privilege, frequently apply the privilege in a strict and narrow fashion.

Use this as framework to weasel out of strict definitions of attorney-client privilege.

The Attorney-Client Privilege hurts executive-congressional negotiation. TF.Garbus, Martin (2005). Attorney-Client Privilege v. The Constitution. Huffington Post. The attorney-client privilege cannot override obligations put into the Constitution by the framers. The high court has dealt with this issue before. Chief Justice Warren Burger, on July 24, 1974, denied former President Richard Nixon's claim that executive privilege permitted him to withhold tapes and to refuse to go before a grand jury.

Richard Nixon gave two reasons. His first argument was that the separation of powers protected the Executive from the surveillance of the judiciary and his second that "the valid need for protection of communication between high government offices and those who advise and assist them in the performance of their manifold duties." His argument was rejected by a unanimous 8-0 Supreme Court." (Associate Justice William Rehnquist abstained).

The Court found that neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The President's need for complete candor and objectivity from advisers calls for great deference from the courts. But, the Court acknowledged, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, the Court said "we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material."

The Court noted that normally a privilege does apply in criminal proceeding "to disclose what has been revealed in professional confidence." But, the Court said, the privilege does not apply, absent national security interests" because "one impediment that an absolute, unqualified privilege would place on the way is the primary constitutional duty of the total branch to do justice in criminal prosecutions would plainly conflict with the function of the courts under Article III of the Constitution."


November/December 2013 Pro: ACP hinders truth-seekingSide argument against attorney-client privilege.

Attorney-client privilege discourages truthful legal proceedings. TF.Ochieng-Odhiambo, Frederick (2010). Truth and the Client’s Interest. Philosophy Now

Magazine, 79.From what has been said, a defense attorney could be held to be morally dishonest without necessarily being legally dishonest. If while defending his client an attorney knows very well that his client is actually guilty and keeps quiet about this fact, then that lawyer’s conduct may be construed to involve moral dishonesty. However, legal dishonesty would only be implied if the attorney tells the court what he knows or has every reason to believe is false. Legal dishonesty amounts to perjury, which is a criminal offence. Though some aspects of legal dishonesty fall within the domain of moral dishonesty, they are not one and the same thing. Lawyers are well aware of this, and as a result can easily afford to be morally dishonest if and when it does not overlap with legal dishonesty. At any rate, in legal procedure prominence is given to legality rather than morality. If in defending his client an attorney only gives favorable evidence which is true, but ignores incriminating evidence which is also true, then legal dishonesty is not involved. What the attorney says is true, so no perjury is committed. However, the fact that he has knowingly kept quiet about incriminating evidence constitutes moral dishonesty. Moral honesty requires that all relevant truths one is aware of be put on the table. Due to the overriding principle of the client’s interest, it is possible for an attorney to not contravene legal ethics even though his conduct could be morally criticized. That lawyers have taken advantage of this weakness is reflected in the fact that prosecution and defense attorneys are usually viewed as diametrically opposed in their professional duties in English-speaking law courts. If all was well within the anglophone legal system – if too much emphasis were not laid on the client’s interest – then this opposition would not be so stark. The law courts are first and foremost supposed to establish the truth, so the goal or purpose of both the prosecution and the defense attorneys should be the same. But given the supervening principle of the client’s interest, this is generally not the case.

Good central case argument as to the hindrance of attorney-client privilege.


Con Evidence


November/December 2013 Con: ACP necessary

Attorney-Client Privilege Necessary in US Courts The Incentive of Prosecutors to Act in a Biased Manner. ABB

Joy, Peter. “The Relationship Between Prosecutorial Misconduct and Wrongful Convictions: Shaping Remedies for a Broken System.” Nov. 29, 2006. Washington University in St. Louis School of Law. (pg 405)

The unique role of the prosecutor is a key component in the social compact that requires our justice system to protect the innocent. As the Supreme Court explained, the prosecutor “is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence

suffer.”28 Rather than simply acting as a partisan advocate seeking convictions, the ethics rules admonish a

prosecutor to be a “minister of justice” and to seek justice.29 In this role as a minister of justice, the prosecutor has the responsibility “not simply . . . of an advocate,” but to adopt a somewhat neutral stance “to see that the

defendant is accorded procedural justice and that guilt is decided upon the basis of the sufficient evidence.”30

Yet, from a normative perspective, there are some societal pressures working against a prosecutor’s duty to justice. At the state level, nearly all chief prosecutors are elected,31 thus directly accountable to the public. Despite the ideal that the criminal justice system should protect the innocent and convict only the guilty, public support for the rights of the accused is not clear. Some studies show that the public believes “the courts undo

the work of the police to get criminals off the street[s],”32 and although a majority of African- Americans are concerned with the rights of the accused “only 29 percent of Whites held the view that disregarding a

defendant’s rights was a problem.”33 On the other hand, the number of Americans who oppose the death penalty

because of the potential for wrongful convictions has more than doubled in recent years.34

As prosecutors are accountable to the public, they are likely to avoid focusing on avoiding wrongful convictions since the public does not see this as an issue. It is therefore the responsibility of the accused’s attorney to have a bias toward his or her client in court to prevent wrongful convictions.



Prosecutorial Misconduct Currently Causes Wrongful Convictions ABBJoy, Peter. “The Relationship Between Prosecutorial Misconduct and Wrongful

Convictions: Shaping Remedies for a Broken System.” Nov. 29, 2006. Washington University in St. Louis School of Law. (pg 403-404)

In the years since the Court’s decision in Berger, prosecutorial misconduct has proven to be one of the

most common factors that causes or contributes to wrongful convictions. An initial study of the first sixty-

two persons exonerated by DNA evidence found some degree of prosecutorial misconduct in twenty-six cases,17

and a subsequent study of seventy persons exonerated by DNA evidence found some degree of prosecutorial

misconduct in thirty-four cases.18 Studies of DNA exonerations have identified wrongful convictions based on prosecutorial misconduct that included: suppressing exculpatory evidence, knowingly using false testimony, fabricating evidence, coercing witnesses, making false statements to the jury, and engaging in improper closing

arguments.19 Similarly, grand jury and journalistic studies into wrongful convictions have found that

prosecutorial misconduct is a leading cause of wrongful convictions.20

Since there currently exists a bias in our court systems on account of prosecutorial misconduct, it may be argued that it is necessary to have attorney client privilege to allow one’s attorney to best act as his or her advocate to counteract this.

Attorney-Client Privilege lets attorneys fully fulfill their role DCReport of the American Bar Association's Task Force on the Attorney-Client PrivilegeThe Business Lawyer , Vol. 60, No. 3 (May 2005), pp. 1029-1055 Published by: American Bar AssociationFurther, the ABA Model Rules of Professional Conduct (the "Model Rules") state, "In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to a client's situation."48 Accordingly, the privilege plays an important role by allowing the lawyer to obtain information that enables the attorney to function in the role of "counselor," a role that is of ultimate benefit to society



Attorney-Client Privilege necessary for client honesty. PNGJohn T. Floyd Law Firm. “Attorney-Client Privilege - Special Rule of Privilege in


No rational client facing criminal investigation would provide an attorney—one either consulted or retained—with information implicating herself in criminal wrongdoing. It is imperative that an attorney know the level of criminal exposure his client faces. An investigation for possible defenses typically cannot begin until the client is forthcoming about the facts surrounding the case and her involvement in any potential criminal wrongdoing—and that will be achieved only if the client believes his privileged communications with the attorney are absolutely protected from disclosure (pg. 1).

Attorney-Client Privilege Serves both the Accused and Society as a Whole ABBJoy, Peter. “Confidentiality and Wrongful Conviction.” Summer 2008. Criminal Justice.

(pg 48)Confidentiality, a key aspect of the attorney-client relationship, is essential to building trust between client and lawyer. Confidentiality encourages lawyers to seek and clients to provide full information about the representation. Confidentiality, it is argued, serves both clients and society since open communication enables the lawyer to represent the client effectively and gives the lawyer the opportunity to counsel the client against wrongful behavior. Exceptions to confidentiality arguably erode both lawyer and client incentives to seek and provide information, and thus threaten to undermine the quality of legal representation and the good it provides to society.

The Attorney –Client Privilege Allows Lawyers to Better Fulfill Their Responsibilities to Their Client. BPG

Stephen Forte, 2003. ” What the Attorney-Client Privilege Really Means.” 2003. http://www.sgrlaw.com/resources/trust_the_leaders/leaders_issues/ttl5/916/.

The attorney-client privilege is the oldest privilege recognized by Anglo-American jurisprudence. In fact, the principles of the testimonial privilege may be traced all the way back to the Roman Republic, and its use was firmly established in English law as early as the reign of Elizabeth I in the 16th century. Grounded in the concept of honor, the privilege worked to bar any testimony by the attorney against the client.1




November/December 2013 Con: ACP necessaryAs the privilege has evolved, countless policy justifications have played a role in its development. At its most basic, the privilege ensures "that one who seeks advice or aid from a lawyer should be completely free of any fear that his secrets will be uncovered."2 Thus, the underlying principle of the privilege is to provide for "sound legal advice [and] advocacy."3With the security of the privilege, the client may speak frankly and openly to legal counsel, disclosing all relevant information to the attorney and creating a "zone of privacy."4 In other words, shielded by the privilege, the client may be more willing to communicate to counsel things that might otherwise be suppressed. In theory, such candor and honesty will assist the attorney in providing more accurate, well-reasoned professional advice, and the client can be secure in the knowledge that his statements to his lawyer will not be taken as an adverse admission or used against his interest.5 Indeed, armed with full knowledge, counselors at law are better equipped to "satisfy all of their professional responsibilities, uphold their duties of good faith and loyalty to the client, and [contribute] to the efficient administration of justice."6

Attorneys Can Help to Compensate for Prosecutorial Immunity ABBZacharias, Fred. “THE DUTY TO AVOID WRONGFUL CONVICTIONS: A


As tort law has developed, prosecutors who fail to exercise reasonable care in performing their duties are immune from lawsuits brought by injured persons.43 This immunity eliminates civil liability as a mechanism for regulating prosecutorial conduct. It also impedes the development of alternative means of regulating prosecutors, because it encourages wrongfully convicted defendants to shift blame from prosecutors to other state actors who are potentially subject to liability.44 Prosecutors’ participation in faulty convictions therefore is less likely to be exposed.45

Prosecutorial immunity places an emphasis on self-regulation by prosecutors and their offices and, in theory, shifts the burden of external regulation to the disciplinary process. In the seminal decision establishing prosecutorial immunity, Imbler v. Pachtman, the U.S. Supreme Court assumed that attorney discipline would play a significant role in deterring prosecutorial misconduct.46 The Court observed that “a prosecutor stands perhaps unique, among officials whose acts could deprive persons of constitutional rights, in his amenability to professional discipline by an association of his peers.”47








Attorney-client privilege is a fundamental aspect of the justice system. TF.Grimm, Paul (2008). Discovery about Discovery: Does the Attorney-client Privilege


The attorney-client privilege and work product protection are likewise fundamental underpinnings of the adversarial system of justice. The attorney-client privilege exists to encourage full and frank communication between counsel and client. The work-product doctrine recognizes that, in the adversarial system of justice, “[p]roper preparation of a client's case demands that [counsel] assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference.” Under Federal Rule of Civil Procedure 26(b)(3), discovery of an opposing party's work product is permitted only upon a showing “that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” When discovery of fact work product is permitted, courts are enjoined to “protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney.”

Establishes argument for legal necessity of attorney-client privilege. Use at beginning of case.

Attorney-client privilege protects legal communication. TF.Grimm, Paul (2008). Discovery about Discovery: Does the Attorney-client Privilege


It is generally assumed that confidential communications involving legal advice between an attorney and client are privileged. This privilege is firmly grounded in public policy, and the privilege is so important to the functioning of the adversarial system, that Congress currently is considering legislation that will prohibit government agencies from making waiver of the privilege a “precondition” for lenient treatment by government prosecutors in criminal cases. Furthermore, a proposed amendment to the Federal Rules of Evidence is designed to ensure that the inadvertent production of privileged material in litigation will not cause a waiver of the privilege. Nevertheless, not all communications between counsel and client are privileged. In Fisher v. United States, for example, the Supreme Court wrote that the privilege “protects only those disclosures necessary to obtain informed legal advice which might not have been made absent the privilege.” For a communication to be privileged, it must be for the purpose of seeking or providing legal advice, and it protects the client's communication of information to the lawyer for the purpose of obtaining that legal advice. Thus, by extension, when the lawyer interviews client personnel and gathers information that is “part and parcel of legal advice given by the lawyer,” those communications are privileged.


November/December 2013 Con: ACP necessaryEstablishes legal precedence for attorney-client privilege – to be used in procedural justice cases.

The privilege is essential to the existence of the legal profession. AC.Cole, Lance. “Revoking Our Privileges: Federal Law Enforcement's Multi-Front Assault

on the Attorney-Client Privilege (and Why It Is Misguided).” Villanova Law Review. 48 (2003).

In 1888 the Supreme Court described the policy grounds for the privilege as “founded upon the necessity, in the interest and administration of justice, of the aid of persons having knowledge of the law and skilled in its practice, which assistance can only be safely and readily availed of when free form consequences or the apprehension of disclosure.” Several important points are implicit in this description. First, the Court recognized that laypersons cannot function in our legal system without the expert advice that can be obtained only from those with special training in law. In other words, one can no longer be “self-taught” in law—it is simply too complex a field to master without expert assistance. Second, our justice system will not function properly if laypersons do not seek out and obtain such expert advice. Our legal system is neither particularly user-friendly nor self-executing, and the legal advice provided by trained attorneys is what keeps the system functioning. Finally, and perhaps most important, laypersons will not seek our this advice if the system creates impediments to their doing so or if they believe that doing so will have adverse consequences for them.

Attorney-Client privilege and the communication it promotes is important for adversarial system. AC.

Cole, Lance. “Revoking Our Privileges: Federal Law Enforcement's Multi-Front Assault on the Attorney-Client Privilege (and Why It Is Misguided).” Villanova Law Review. 48 (2003).

In Zolin, as it had done in UpJohn and Weintraub, the Court began its attorney-client privilege analysis by explaining that the privilege is intended to encourage full and frank communications between attorneys and their clients, which promotes the broader public policy interests in observance of law and administration of justice. The Zolin Court expressed its support of this core principle, which it articulated as “the centrality of open client and attorney communication to the proper functioning of out adversary system of justice.”

The point is that the current US criminal justice system is based on the adversary system, and since the resolution specifies in the criminal justice system of the US, it is important to make arguments that are sensitive to the way the American criminal justice system works. Unless the affirmative advocates for a major reform in the system and decides to argue against the criminal justice system as a whole, it is important that the attorney-client privilege is an essential part of the current adversary system in place.



The attorney-client privilege is an important part of checks and balances within the legal system. AC.


Another important preliminary consideration concerning existing limitations on assertion of privilege and work product protection is that all of these existing limitations provide for judicial oversight and involvement in the decision to abrogate the protections of the privilege. Many of the efforts by law enforcement to overcome—or do an “end run” around—the privilege seek to obtain access to privileged information without invoking judicial process. This is a disturbing trend that threatens to undermine important values in our legal system without the checks provided by judicial review and orderly development of judicial precedents in an area that Congress intended to “be governed by the principles of common law as they may be interpreted by the courts of the United States in the light of reason and experience.”

The necessity of the attorney-client privilege is demonstrated by the enormous power—and its potential for abuse—yielded by the prosecutor and the grand jury. AC.

Zwerling, Matthew. “Federal Grand Juries v. Attorney Independence and the Attorney-Client Privilege.” Hastings Law Journal. 1263 (1975-1976).

Thus, the prevalent concept of the grand jury in early America was of a noble, independent institution which stood between both vindictive, politically motivated prosecutors and overly zealous or mistaken prosecutors and the people.' The writers of the Constitution were so impressed with this institution that they incorporated it into the Bill of Rights. The fifth amendment provides that no person can be tried by the federal government for a serious crime (a felony) unless first indicted by a grand jury.

The question raised, then, by this historical vision of the grand jury is how such an institution could be twisted into an instrument of repression.

As with many institutions, some of the strengths of the grand jury were also its most dangerous aspects. These aspects, coupled with two important developments, have enabled the grand jury to be misused and abused by prosecutors.

The grand jury's strength-its image as an independent protector of individual liberties-has led to a unique judicial attitude toward it. Unlike any other element of the legal system, and even unlike any legislative


November/December 2013 Con: ACP necessarycommittee or administrative agency, the grand jury has been freed by the courts from virtually all requirements of procedural due process.

As a result, a federal prosecutor can subpoena anyone to appear before a grand jury without telling the person what the subject of the investigation is or why he or she was called; the prosecutor can ask virtually unlimited questions of the witness, and the witness cannot generally challenge the relevancy of the questions. Probably no other government institution possesses such power.

The ability of the grand jury to conduct unfettered secret investigations, facilitated by the judicial attitude of noninterference, presented a tremendous potential for abuse.

One obstacle to grave abuse of the grand jury system remained, however: the fifth amendment privilege against self-incrimination. Although grand juries, at the instance of prosecutors, could subpoena anybody and ask virtually anything, the witness, under the fifth amendment, had a constitutional right not to answer. The courts have held that the fifth amendment privilege against self-incrimination applies to grand jury proceedings, thus enabling witnesses to block questioning by invoking the privilege.

1968, however, the federal government, in order to limit the effect of the privilege, enacted a comprehensive immunity law. Under this law, the prosecution, in its discretion, may grant immunity to witnesses. Actually, the word "grant" is misleading, since immunity may be imposed even if a witness prefers to stand on his or her fifth amendment privilege and not testify. Once immunity is given, the fifth amendment right no longer operates and the witness must either testify or be jailed for contempt.

Using this card, the argument can be made that the attorney-client privilege is part of our civil system because it is a necessary check on the many parts of the judicial system, as is the fifth amendment. Also, the point about the fifth amendment can be used to argue that although exceptions and changes in applications of the privilege may occur, that in no way means that we disregard the importance of the principle.

The attorney-client privilege ensures faith in the attorney as well as faith in the legal system as a whole. AC.

Cohen, James. “The Attorney-Client Privilege, Ethical Rules, and the Impaired Criminal Defendant.” University of Miami Law Review. 529 (1997-1998). pp. 529-586

The rules governing the attorney-client relationship are, in many respects, based on the law of agency. The lawyer, as a fiduciary, can only act with the explicit or implicit authority of the client." In our legal system, an attorney is [the] client's agent and representative; the client retains ultimate authority over the conduct of litigation." This principle is designed to ensure that each party makes his own choices and bears the


November/December 2013 Con: ACP necessaryconsequences of those choices. This increases the moral authority and acceptability of the resultant decisions.

As agent, the lawyer functions to assist her client in making informed decisions. It is not the lawyer's function to impose her view of what is in the client's best interest. The agency relationship requires a principal who is competent; the attorney, therefore, is not authorized to act when she has a reasonable belief that the principal is incompetent.

The ethical rules reflect the agency principles which underlie the attorney-client relationship. The ABA Model Rules of Professional Conduct require lawyers to follow a client's instructions regarding the goals of the representation, and further require that the client be kept informed and be consulted about the methods to be used to obtain the goals.' Similarly, the ABA Model Code of Professional Responsibility places all decision-making in the hands of the client except for those "decisions not affecting the merits of the cause or substantially prejudicing the rights of a client." The ABA Criminal Justice Mental Health Standards are more specific. According to these standards, the client decides: (1) what plea to enter; (2) whether to waive jury trial; and (3) whether to testify. Decisions about whom to call as witnesses, examination of these witnesses, juror selection, what motions to proffer, and all other "strategic and tactical" decisions are reserved to the lawyer, after consultation with the client. Despite the purported distinctions between goals and means in the Rules, the Code, and the Standards, the differences are often vague.

At the heart of the attorney-client relationship are the lawyer's duties of loyalty, zealousness, and confidentiality to the client.

The significant overlap of these duties combine to form a bundle of obligations and client expectations, rather than discrete, compartmentalized concepts.

The reason this power of the client over the case he or she presents is important is bolded. The impact of such client control is increased moral authority and acceptability with the consequences of the trials and the legal system as a whole.

The nature of the cases in the criminal justice system necessitates the privilege. AC.Gardner, James. “Re-Evaluation of the Attorney-Client Privilege (Part I).” Villanova Law

Review. 279 (1963). pp. 279-339.The modern rationale of the privilege, since the latter part of the eighteenth century, has been the policy promoting free consultation of clients with their legal advisors.8" Dean Wigmore accepted this position and also answered Bentham by raising four objections to the latter's abstract oversimplification of the problem.

1. In civil cases there is often no hard-and-fast line between guilt and innocence.


November/December 2013 Con: ACP necessary2. In most civil cases it does not happen that all of the facts on one side are wholly right and all of those on the other side are wholly wrong. There is a mixture on both sides in varying propor- tions. Both plaintiff and defendant may have fear of disclosing some part of his case. The party having the better case would be deterred from seeking legal advice, and this is not good for the administration of justice.

3. To deter a wrongdoer from seeking legal advice is not an unmixed good. It depends upon the ethics of the bar. Counsel can always decline a case, persuade his client to abandon it, or settle the case when some moral claim is present. Moreover, if the privilege were abolished, there are ways in which a guilty party could derive quite as much assistance from his legal adviser as at present.

4. Contrary to Bentham the consideration of "treachery" is important. The position of counsel would be most disagreeable if he were forced to testify against his client. It would be disturbing to his peace of mind and would create an unhealthy moral state.

Wigmore added two other points: (1) that in criminal cases, if the privilege were abolished, the prosecution might tend to rely on defense counsel's testimony to the neglect of other and better sources of truth, while the defendant would not be deterred from seeking counsel but rather from disclosing incriminating facts; and (2) that the loss to truth is comparatively small in modern times, since the parties themselves can now be examined.

The attorney-client privilege supports the rule of law. CFSMeese, Alan J., "Inadvertent Waiver of the Attorney-Client Privilege by Disclosure of

Documents: An Economic Analysis" (1990). Faculty Publications. Paper 539. http://scholarship.law.wm.edu/facpubs/539

Encouraging open and frank discussion between attorney and client during planning stages fosters the rule of law. The rule of law requires that individuals be able to understand their rights and duties and order their lives accordingly. When the rule of law does not obtain, parties are unable to order their behavior and are thus less likely to engage in a legally protected activity. Such analysis applies to any society governed by laws. Yet, it has taken on increasing importance for corporations in an administrative state whose rules are ever-expanding in both reach and complexity. In Upjohn Co. v. United States, the United States Supreme Court explicitly recognized this importance, stating that "[i]n light of the vast and complicated array of regulatory legislation confronting the modern corporation, corporations, unlike most individuals, 'constantly go to lawyers to find out how to obey the law' particularly since compliance with the law in this area is hardly an instinctive matter."


http://scholarship.law.wm.edu/facpubs/539


The crime-fraud exception in the attorney-client privilege is good for maintaining the rule of law. CFS

Bricker, Cary. "Revisiting the Crime-Fraud Exception to the Attorney-Client Privilege: A Proposal to Remedy the Disparity in Protections for Civil and Criminal Privilege Holders." Temp. L. Rev. 82 (2009): 149.

The crime-fraud exception, like the attorney-client privilege, is a creature of common law and applies in both the civil and criminal context. Where the exception arises as part of civil litigation, procedural protections are in place to ensure that the privilege holder can meaningfully challenge the adversary’s claim, in open court, before a court orders outright disclosure of attorney-client communications.8 In contrast, where it arises in criminal litigation, usually in the context of a grand jury investigation, the privilege holder has no concomitant right to be heard; indeed, rarely is he informed of the specific conduct allegedly constituting crime-fraud, nor is he provided the opportunity to rebut the same on paper or in an evidentiary hearing. Instead, a trial judge generally receives ex parte submissions by the government, often followed by in camera proceedings, where the court reviews the privileged communication at issue and determines whether the crime-fraud exception applies. If yes, the privilege holder’s counsel must testify before the grand jury regarding privileged communications or risk being held in contempt. Without any meaningful opportunity to argue in defense of preserving the attorney-client privilege, the lawyer’s confidential relationship with his client is forever abrogated.

Ensuring the legal use of the privilege is very important. CFSRemedy the Disparity in Protections for Civil and Criminal Privilege Holders." Temp. L.

Rev. 82 (2009): 149.The fair administration of justice requires the abrogation of the attorney-client privilege when a client-target uses counsel to facilitate crime or fraud. A client-target should not be rewarded or protected where he used his lawyer illegally. Yet the extremely draconian consequence of compelling a lawyer to testify to client confidences, thereby effectively abrogating the attorney-client relationship, should occur only when the facts warrant it. Through legislation that arms the privilege holder with additional due process protections, the hope is to address and resolve problems presented by a procedural world where ex parte, in camera hearings are the rule and not the exception. The legislative imposition of procedural requirements on the government and the bench that are neither unduly burdensome, nor conflict with current federal case law, will provide the privilege holder a real chance of defending against specious crime fraud allegations without thwarting the integrity and importance of grand jury secrecy. The proposed legislation imposes rules to be followed by prosecutors and judges in all crime-fraud cases, thereby realigning the grand jury process to once again protect as well as investigate.



Insurance lawyers should take advantage of the attorney-client privilege. CFSRaymond Tittmann, Losing Confidence in Confidentiality: Do Expanding Exceptions to

the Attorney-Client Privilege Gut Its Purpose? Engage Volume 13, Issue 1, March 2012. http://www.fed-soc.org/publications/detail/losing-confidence-in-confidentiality-do-expanding-exceptions-to-the-attorney-client-privilege-gut-its-purpose

Insurance lawyers and clients should be especially concerned with the erosion of the attorney-client privilege due to three common situations that lead to production of their communications: (1) the “at issue” waiver, e.g., when the insurance company seeks to defend a bad-faith claim by asserting that they reasonably relied on the advice of counsel; (2) the implied waiver, i.e., when a court finds that merely denying bad faith (or general assertions that the claim was handled properly under the law) automatically puts the attorney’s advice at issue; and (3) when the attorney is not serving in the role of an attorney as defined by the last three legal elements, e.g., when they conduct a factual investigation or offer guidance on company policy or give business advice, rather than legal advice.

Insurance lawyers can help maintain the privilege. CFSRaymond Tittmann, Losing Confidence in Confidentiality: Do Expanding Exceptions to


Insurance companies and their lawyers can take steps to increase the likelihood of preserving the privilege, as discussed further below. But, despite best efforts, the law does not give sufficient clarity and certitude in the ultimate confidentiality sufficient to justify the risk of frank communication. They are thus tempted to take the safer route of assuming disclosure. This article addresses each of these situations and recommends steps to help preserve the privilege, but nevertheless recognizes that the law is, in certain contexts, too inconclusive to give the confidence necessary to serve the purpose of the privilege.


http://www.fed-soc.org/publications/detail/losing-confidence-in-confidentiality-do-expanding-exceptions-to-the-attorney-client-privilege-gut-its-purpose







Upjohn CO. v. United States. CFSBricker, Cary. "Revisiting the Crime-Fraud Exception to the Attorney-Client Privilege: A

Proposal to Remedy the Disparity in Protections for Civil and Criminal Privilege Holders." Temp. L. Rev. 82 (2009): 149.

Courts have long recognized at common law a privilege to protect confidential communications between attorneys and their clients. In Upjohn Co. v. United States, the Supreme Court acknowledged the attorney-client privilege as “the oldest of the privileges for confidential communications known to the common law.” Its existence helps maintain the integrity of judicial proceedings and public confidence in the legal profession. At its core, the privilege promotes and encourages open communication between the client and attorney, which, in turn, facilitates effective assistance of counsel and furthers the interests of justice.

Attorney-client privilege is necessary for truthful communication experts. PNGEdward J. Imwinkelried, The Application of the Attorney-Client Privilege to Non-


The first school, by refusing to apply the attorney-client privilege even to the client’s direct communications with the expert, creates a harsh dilemma for the attorney: it discourages resort to otherwise necessary expert consultants by creating the risk that opposing counsel may later call the expert to testify about the client’s statements. As one state supreme court judge commented, by sending the client to an expert without the protection of the privilege, the attorney might well be “stick[ing the client’s] head into a noose.” Commentators have charged that the first school deals “a crippling blow” to pretrial investigation and makes it “virtually impossible” to prepare adequately for trial.

Those commentators may be guilty of hyperbole, but the first school unquestionably deters thorough pretrial investigation. By consulting the expert, the client may be creating an opposing witness. This opposing witness can testify to one of the most prejudicial types of evidence, an admission from the client’s own mouth. Such an admission is routinely admissible over a hearsay objection and is sufficient standing alone to support a finding of fact against the client unless there is some special corroboration requirement. Further, the trier of fact is likely to attach great weight to a confession by the client. In short, the client could be creating a monster, a witness whose testimony could potentially guarantee the opposition’s victory.

Moreover, the first school encourages attorneys to consult the wrong kind of expert. If the attorney can assume that the attorney-client privilege will protect the client’s disclosures to the expert, the attorney confidently can send the client to an objective, fair-minded expert. An objective expert will give the attorney the sort of frank case evaluation the attorney needs to engage in serious settlement negotiations with the opposition. However,


November/December 2013 Con: ACP necessarywhen the attorney cannot make that assumption but nevertheless sends the client to an expert, the attorney is much more likely to consult an expert who will slant her views.

Lawyers have an ethical duty to maintain attorney-client privilege. PNGRichmond, Douglas. “The Attorney-Client Privilege and Associated Confidentiality

Concerns in the Post-Enron Era.” 2005. 110 Penn St. Law Review. 381.“It is axiomatic that among the highest duties an attorney owes a client is the duty to maintain the confidentiality of client information.”95 Lawyers’ duty to maintain client confidences is a fundamental agency law principle. 96 The duty is further found in ethics rules. Model Rule of Professional Conduct 1.6(a), for example, states that a lawyer “shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is authorized to carry out the representation or the disclosure is permitted by [Rule 1.6(b)].”97 In states still adhering to the Model Code of Professional Responsibility, lawyers’ duty of confidentiality is enforced by way of DR 4-101(B)(1), which provides that with few exceptions a lawyer “shall not knowingly . . . reveal a confidence or secret of his client.”98 For DR 4-101 purposes, “a ‘confidence’ is information learned directly from the client, whereas a ‘secret’ is defined more broadly.”99 A client “secret” includes not only “embarrassing or detrimental information that the client reveals,” but also detrimental or embarrassing information about the client “available from other sources.”100

This provides a different argument for the maintenance of attorney-client privilege: that it is ethically obligatory for the lawyer.

Lawyers in the adversary system are more faithful to their client. PNGGerald Walpin. 26 Harvard Journal of Law & Public Policy 177 (2003). America's

Adversarial and Jury Systems: More Likely to Do Justice.In the adversarial system, the lawyer for a party has the duty to act zealously and faithfully for his client. Zealous, faithful advocacy means the obligation to search out all favorable evidence, to seek, neutralize or destroy all unfavorable evidence, and to press the most favorable interpretation of the law for his client. That is simply not the obligation of an inquisitorial judge. Even assuming a hard working, totally unbiased inquisitorial judge, his loyalty is to society. Therefore, he must take into account balancing perfect justice against time and budgetary constraints, i.e., looking at his growing docket of cases that can only be decided if he does not spend too much time on any one case, in light of the limited budget provided by the state.


November/December 2013 Con: ACP protects accused

Some Values in Legal System Override Truth Examples of parts of our legal system we keep even though they can impede truth-seeking

Law and Philosophy , Vol. 18, No. 5, Laws, Facts, and Values (Sep., 1999), pp. 497-511 Published by: SpringerIn these cases, substantive truth and formal legal truth diverge in a particular case because the trial court procedures and the rules of evidence, though generally directed at substantive truth, are also designed to serve other ends that actually come into play in a particular case. For example, a rule of criminal evidence law forbidding the use of even highly inculpatory evidence procured by an illegal search of a private home protects privacy. To cite a second example, a rule of evidence may forbid the court from considering a confession of guilt by the accused criminal, and also any evidentiary fruits thereof, where the police procured the confession by beating the accused.

You can beef up this guy’s logic by adding examples of your own, like the rule against double jeopardy and being read your Miranda rights.

Truth-seeking doesn’t guarantee legal justice. TF.Lennertz, James (1991). Ethics and the Professional Responsibility of Lawyers

(Commentary). Journal of Business Ethics. Adversariness, our model of truth-seeking and engine of due process, assumes that truth leads automatically to justice. Yet truth may be an insufficient, albeit necessary, condition of justice. Two balloonists are floating over the countryside in a lighter-than-air balloon on a summer's day. Suddenly storm don& move in, the balloon is buffeted about, and the balloonists become lost. After a while there is a gap in the clouds, and the balloonists lower the balloon and discover a habitation below. One of them leans over and shouts to a man walking on the street below, "Where are we?" [Can't hear; shouts again.] The answer: "You're in a balloon." The balloonists look at each other, and one says: "That man is a lawyer. His answer was entirely correct but revealed absolutely nothing."

Can also be used as counter to truth seeking = justice.



Historical Example of Prioritizing Protecting the Innocent over Punishing the Guilty. ABBVidar Halvorsen. “Is it Better that Ten Guilty Persons Go Free Than that One Innocent

Person be Convicted?” Fall 2004. “Criminal Justice Ethics. (pg. 3)I shall take it for granted that no reasonable person could possibly endorse the version implicitly ridiculed by Bentham: "It is better that all guilty persons go free than that one innocent person be convicted." Nevertheless, in the light of Bentham's remarks, it seems equally clear that it would be futile to embark on an exercise in moral mathematics in order to fix and justify the correct ratio of false acquittals of the guilty to false convictions of the innocent. I shall presuppose, moreover, that any ratio one might come up with, say forty-two to one, should not be taken to indicate that it is forty-two times worse to convict an innocent person than to acquit a guilty one. Rather, I think that a more adequate interpretation of the doctrine is to be found in a U.S. Supreme Court case from 1895, Goffin v. U.S. In this case, Justice White, who delivered the opinion of the court, dated the doctrine back to Roman law. He quoted a Roman official who wrote that "it was better to let the crime of a guilty person go unpunished than to condemn the innocent."^ I take this doctrine, which I shall call the Roman doctrine, to articulate the strong intuition of everyday morality: it is worse to convict innocent people than to acquit guilty people.

Refutation of Attempt to Equate Significance of Punishing Innocents and Releasing Criminals. ABB

Vidar Halvorsen. “Is it Better that Ten Guilty Persons Go Free Than that One Innocent Person be Convicted?” Fall 2004. “Criminal Justice Ethics. (pg. 4)

A sophisticated attempt to establish an alternative explanation is provided by Jeffrey Reiman in his interesting exchange with Ernest van den Haag. Reiman identifies three propositions of what he calls strong retributivism. In combination, they yield something like the following argument:

If:

(1) punishing an innocent person for a given crime is as bad as committing that crime against an innocent person, and (2) failing to punish the guilty is as bad as committing his crime against an innocent person.

Then

(3) failing to punish the guilty is as bad as punishing an innocent person

On the retributivist principle that the punishment shall fit the crime, (1) seems intuitively plausible, but (2) is very hard to accept. How could, say, failing to execute the guilty for a capital murder be as bad as his murder of an innocent person? As Reiman points out, adherents of strong retributivism owe us an account in


November/December 2013 Con: ACP protects accusedterms of which the direct harms of the two alternatives (false acquittals and false convictions) are identified and ranked. While it amounts to a tautology to say that the innocent is harmed by the infliction of punishment, who is directly harmed by the non-punishment of the guilty? In a capital murder case, it makes sense, of course, to argue that an additional harm is inflicted on the relatives and friends of an innocent victim whenever the victimizer is acquitted. Nevertheless, it is downright implausible to insist that the additional harm of acquittal equals the harm inflicted by the perpetrator's crime, which, according to the retributivist conception, equals the harm of punishing the innocent.

It follows that focusing purely on truth seeking in our criminal justice system would be morally wrong, as it is worse to convict an innocent person than to free a guilty one. This means that bias towards protecting the innocent, such as that provided by attorney client privilege, must be built into the system.

Justification for Focusing System on Preventing Wrongful Convictions, Even if More Criminals Go Free. ABB

Vidar Halvorsen. “Is it Better that Ten Guilty Persons Go Free Than that One Innocent Person be Convicted?” Fall 2004. “Criminal Justice Ethics. (pg. 6)

However, the dilemma before us does not concern choosing between punishing guilty persons and innocents, but choosing between punishing more guilty {and innocent) or fewer guilty {and innocent) persons by means of lower or higher standards of proof."''' An ideal criminal justice system would be one that consistently convicted each and every guilty accused and acquitted each and every innocent person. Unfortunately, given the fallibility of human beliefs and practices, the ideal system is essentially unattainable. It seems reasonable to assume that the current criminal justice systems of constitutional democracies succeed in convicting a majority of guilty persons and acquitting a majority of innocent persons among the accused. Nevertheless, we know that a fallible system like ours is doomed to generate false acquittals as well as false convictions.

In the technical terms of statistics, false convictions are analogous to what are called Type 1 errors, the error of coming to accept a false theory (by way of rejecting a true, so-called null hypothesis). In contrast, false acquittals are analogous to what are referred to as Type 2 errors, the error of coming to reject a true theory (by way of accepting a false null hypothesis). Which error is worse:

to accept false beliefs or to reject true ones? There is no statistical answer to that question; it depends upon the content of the belief and the consequences of acting on it. Generally, any attempt to reduce the probability of one type of error is likely to increase the probability of the other type. Accordingly, an attempt to reduce the number of false convictions by raising the threshold of evidentiary support for any conviction is likely to increase the number of false acquittals. Nevertheless, the doctrine that it is better to let the crime of a guilty person go unpunished than to condemn the innocent can plausibly be taken to imply that the reduction of false convictions must always have moral priority over the reduction of false acquittals. This is so,


November/December 2013 Con: ACP protects accusedirrespective of the fact that reducing the number of innocent persons convicted will increase the number of guilty persons acquitted.

Innocent Until Proven Guilty Overrides Pure Justice Seeking. ABBVidar Halvorsen. “Is it Better that Ten Guilty Persons Go Free Than that One Innocent

Person be Convicted?” Fall 2004. “Criminal Justice Ethics. (pg. 7)In the U.S. Supreme Court case referred to earlier. Coffin v. U.S. Justice White provides the sketch of a justifying rationale for the Roman doctrine. The doctrine, he says, connects with another fundamental maxim of criminal justice, namely, the presumption of innocence. "The principle that there is a presumption of innocence in favor of the accused," White insists, "is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law."" He proceeds to illustrate how Roman law and English common law were pervaded "with the results of this maxim of criminal administration"—the presumption of innocence—^by citing precisely the Roman doctrine and the different versions of it that were ridiculed by Bentham. The presumption of innocence has been enacted as a crucial part of modern human rights legislation. For example, Article 6(2) of the European Convention on Human Rights declares that "everyone charged with a criminal offence shall be presumed innocent until proven guilty according to law." The flip side of the right of the accused to be presumed innocent until proven guilty is the duty of the prosecution to take on the burden of proof. At first glance there might seem to be a kind of performative contradiction here, since no criminal court case would ever get off the ground unless the prosecutor seriously believed that the accused actually was guilty. Indeed, as Randy Bamett has effectively pointed out, there are good reasons to believe that the great majority of the accused in criminal court cases are guilty.^" But, he maintains, this fact is precisely "a consequence of having first adopted a presumption of innocence" and cannot therefore count as an argument in favor of rejecting it. The presumption of innocence serves to filter out cases based on weak evidence, leaving the prosecutor with cases that are much more likely to generate convictions.

Refutation of Consequentialist Argument for Accepting Punishment of Innocents. ABBVidar Halvorsen. “Is it Better that Ten Guilty Persons Go Free Than that One Innocent

Person be Convicted?” Fall 2004. “Criminal Justice Ethics. (pg. 10)In order to isolate the impact of one possibly relevant factor, namely, the number of innocent lives, let us make one concession, by way of stipulation, to those (the consequentialists) who argue that the practice of punishment is justified in terms of its beneficial consequences. The concession we should make is to accept, for the sake of argument, a consequentialist assumption to the effect that for every innocent person who is mistakenly executed by state officials, an indeterminate number of innocent citizens are saved from being killed by acts of murder. Moreover, let us accept another consequentialist assumption to the effect that for every guilty murderer who is


November/December 2013 Con: ACP protects accusedmistakenly acquitted by state officials, an indeterminate number of innocent citizen are killed by acts of murder. By making these stipulations by way of a thought-experiment—comparing a case in which an indeterminate number of innocent lives is saved by mistakenly executing one innocent with another case in which an indeterminate number of innocent lives is lost by failing to execute one guilty—we are able to compare the impact of innocent lives.

I suspect most of us are strongly inclined to think that punishing the innocent is morally worse than acquitting the guilty, despite the beneficial consequences that flow from the first alternative and the fatal consequences that flow from the latter alternative. Why is this so? I assume the answer has at least something to do with a fundamental distinction of everyday morality, namely, the distinction we intuitively make between the harm we bring about by doing something and the harm we merely allow to happen by failing to act. In ethics there is the well-known and grotesque example of a small child who is about to drown in a lake unless I, who happen to pass by, pull the child out of the water. Certainly a very small effort is required on my part to save the child from drowning, yet I ignore the child's cry for help and continue on my daily walk. Needless to say, that is an awful, terrible thing for me to do, or rather, not to do. But according to the doctrine of doing and allowing, it is not as terrible and awful as my throwing the child into the lake in the first place and keeping his head under the water to make sure he dies. That is plain and deliberate murder.

When approached from a purely utilitarian or consequentialist standpoint, it is easy to accept that some individuals will be wrongfully convicted. However, the concept of innocent until proven guilty suggests that we believe it right to err on the side of acquittal in the US. This conscious decision is incompatible with pure truth seeking.

Current Tendency to Err on Side of Convicting Guilty in US Courts. ABBRobert L. Young. “guilty until proven innocent: conviction orientation, racial attitudes,

and support for capital punishment” August 11, 2010. Deviant Behavior. (pg. 151)A long-standing objection to the death penalty is that it has been applied disproportionately to African Americans. A more recent objection centers on concern that standards for selecting death qualified juries bias these juries in the favor of the prosecution. This research investigates the empirical connections between these two objections by analyzing the structure of attitudes and beliefs that connect support for the death penalty with attitudes suggesting racial prejudice on the one hand and a conviction-prone orientation on the other. Multivariate analysis of data from the 1990 and 1996 General Social Surveys suggest that those who are more likely to be allowed to serve on death penalty cases are not only more likely to harbor racially prejudiced attitudes, but also are more likely to favor the conviction of innocent defendants over letting guilty ones go free. The results also show punishment orientation to be influenced by a negative view of human nature and belief in a rigid adherence to law.


November/December 2013 Con: ACP protects accusedIt should be noted that this bias is entirelt incompatible with the doctrine of innocent until proven guilty. If anything, the bias should be on the other side in a just system.

Statistical Analysis of Wrongful Convictions in US. ABBRobert L. Young. “guilty until proven innocent: conviction orientation, racial attitudes,

and support for capital punishment” August 11, 2010. Deviant Behavior. (pg. 152)According to at least one ‘‘conservative’’ estimate, the American criminal justice system renders about 10,000 erroneous convictions per year for crimes listed as the most serious in the FBI index (Huff, Rattner, and Sagarin 1996). Recent widely publicized reports suggest that a substantial number of such convictions occur in death penalty cases. Smith (2002) reports that of the 6139 persons sentenced to death between 1973 and 1997, 33.1% had their convictions or sentences subsequently overturned. In the state of Illinois, for example, 13 of the 25 inmates sent to death row between 1977 and 2000 were subsequently exonerated. In light of that finding, Illinois Governor George Ryan issued a moratorium on the death penalty, pending recommendations from a Governor’s Commission of Capital Punishment (Ryan 2000).

Some researchers have attributed the alarming number of erroneous convictions in capital trials to a conviction-prone orientation among individuals who are most likely to qualify for jury duty in such cases. This relatively recent criticism of the application of the death penalty is now coupled with the long-standing objection that the ultimate punishment has been applied disproportionately to non-whites, especially African Americans. This objection is supported by evidence directly linking racial prejudice with support for the death penalty (Barkan and Cohn 1994), which suggests that prejudiced individuals might be more likely than others to be selected to serve on capital-case juries.

Bias Toward Conviction Built into US Death Penalty System. ABBRobert L. Young. “guilty until proven innocent: conviction orientation, racial attitudes,

and support for capital punishment” August 11, 2010. Deviant Behavior. (pg. 164)Despite these limitations, however, the analysis does suggest that among white respondents a preference for convicting an innocent defendant over letting a guilty one go free is an attitude more characteristic of those who are, than those who are not, likely to be allowed to serve on capital juries. This relative tolerance for convicting the innocent appears to be rooted in a negative view of human nature, a rigid support for obedience to the law, and racial prejudice. Moreover, in the current context, as in the case of other studies, racial prejudice proves to be a robust predictor of support for the death penalty. Contrary to the theory, however, a negative view of human nature appears to have only an indirect influence on death penalty attitudes


November/December 2013 Con: ACP protects accusedvia its link to the belief that it is a more serious mistake to acquit the guilty than to convict the innocent. The same is true of a law-and-order orientation, which also was predicted to have a direct link to death penalty support.

The data presented here substantiate the claims of those who object to the death penalty on the basis of concerns about racial bias in conviction and sentencing decisions as well as those who argue that death-qualified jurors tend to be conviction prone. Moreover, the fact that highly prejudiced individuals are more likely to support the death penalty suggests that, in general, death-qualified jurors are more likely to be prejudiced against black defendants. This does not mean that a substantial portion of capital-case jurors is willing to hand down guilty verdicts without regard to the evidence. What it does suggest, however, is that in cases where the evidence against the defendant is less than compelling such jurors are more likely than those who are not allowed to serve to vote for conviction, and that this effect is likely to be especially powerful if the defendant is black. However, it is not just African Americans who should fear the predispositions of racially prejudiced jurors, for there is no reason to believe that the inclination to convict that is characteristic of such jurors is reserved exclusively for black defendants.

As attorney-client privilege is associated with one’s ability to successfully negotiate a plea bargain, it can be argued that it saves innocent lives in this case, as there is a predisposition to err on the side of conviction among death penalty juries.

Right to Equality Under the Law often Denied to Those Accused of Capital Crimes. ABBRobert L. Young. “guilty until proven innocent: conviction orientation, racial attitudes,

and support for capital punishment” August 11, 2010. Deviant Behavior. (pg. 165)Unfortunately, because most death-penalty defendants are indigent, poorly educated, and poorly represented, the chances of that are typically quite slim. Moreover, inasmuch as the Supreme Court has shown a reluctance to allow data indicating attitudes and predispositions of the general public to influence their rulings on specific court cases, it appears to be up to the legislative branch to alleviate the kind of biases reported here and in other studies. Thus, it is important that social scientists continue to investigate the nature, sources, and consequences of attitudes such as those discussed here so as to provide law makers with as much information as necessary to create laws that further justice.

As Weber (1958: 220–221) argues

equality before the law’ and the demand for legal guarantees against arbitrariness demand a formal and rational ‘objectivity’ of administration . . . but, if an ‘ethos’. . . takes hold of the masses on some individual question, it postulates substantive justice toward some concrete instance and person; and such an ‘ethos’ will


November/December 2013 Con: ACP protects accusedunavoidably collide with the formalism and the rule-bound and cool ‘matter-of-factness’ of bureaucratic administration. For this reason, the ethos must emotionally reject what reason demands.

The emotionally fueled ethos of capital punishment, which has been rejected in all other Western industrialized nations, continues to exert a tenuous hold on the American public, and apparently on the Supreme Court of the United States. Moreover, the weight of scientific evidence suggests that the Constitutional rights of equality under the law and freedom from the arbitrary administration of that law, at this point in time, cannot be guaranteed to many Americans accused of capital crimes.

Presumption of Innocence Preempts Truth Seeking. ABBRobert L. Young. “guilty until proven innocent: conviction orientation, racial attitudes,

and support for capital punishment” August 11, 2010. Deviant Behavior. (pg. 156)With few exceptions (e.g., Fitzgerald and Ellsworth 1984; Thompson et. al. 1984), a common problem with the extant research on conviction orientation and death qualification is that it fails to provide an objective criterion by which to judge such jurors as conviction-prone as opposed to judging others as acquittal-prone. Fortunately, there is one legal standard against which the inclinations of all potential jurors can be judged. Rooted in the due process clause of the Constitution is the requirement that in criminal trials the defendant must be proven guilty beyond a reasonable doubt, or alternatively stated, the defendant should be considered innocent until proven guilty. That standard, commonly referred to as the presumption of innocence, is considered one of the most basic tenets of our legal system, and thus represents a standard by which all juries should be judged. In light of the fact that in any sentencing decision a jury can make one of two possible mistakes—the acquittal of a guilty person or the conviction of an innocent one—the Constitution clearly suggests that, in the absence of compelling evidence, juries should be willing to err on the side of acquittal. Thus, juries and jurors who are inclined to ignore the presumption of innocence because of a preference for convicting an innocent defendant over letting a guilty one go free can be rightly called conviction-prone.

Client Privilege comes a priori. TF.Ochieng-Odhiambo, Frederick (2010). Truth and the Client’s Interest. Philosophy Now

Magazine, 79.Notwithstanding this, defense attorneys must often be concerned with something other than the truth. They also operate on the basis of another principle – the principle of their client’s interest. It follows that the duty of a defense attorney is twofold. As an official of the court, he is sworn to advance the truth; but as a defense attorney, he is also sworn to give priority to the interests of his client. In situations where these two principles


November/December 2013 Con: ACP protects accusedalign, the defense attorney’s dual obligation to the court and to his client will generally not be problematic. Yet this is not always the case, as seen in instances where the client’s interest may require saying less than the whole truth, for example. (This amounts to lying, for lying is not only saying what is not true, it is also misleadingly saying less than what is true.)

Framework argument.



Attorney-Client Privilege Gets Truth Best By letting defendants use honest, nuanced defenses instead of untruthful, outright denials,

Attorney-client privilege decreases perjury DCA Positive Theory of the Attorney-Client Privilege and the Work Product Doctrine Ronald

J. Allen, Mark F. Grady, Daniel D. Polsby and Michael S. Yashko The Journal of Legal Studies , Vol. 19, No. 2 (Jun., 1990), pp. 359-397 Published by: The University of Chicago Press for The University of Chicago Law School

…a modern litigant, like his common-law ancestors, still has two main strategies for defeating an adverse claim. He can deny the claim in its own terms or defeat it with an affirmative defense or some similar contingent claim. In the driver- pedestrian example, the driver can deny he was negligent or prove that the pedestrian was contributorily negligent. However, and this is the heart of the matter, a potential client, ignorant of the law, has one option-not two. He must deny the claim against him in its own terms. Of course, if potential clients were always honest, they would never deceit- fully deny claims. We assume that individuals will sometimes be dishonest in pursuit of their self-interest. However-and this is the second crucial component of our argument-a legal regime that reduces the costs of information about contingent claims should facilitate their examination and consequently reduce the amount of perjury. Reducing the cost of litigating contingent claims gives potential clients an incentive to substitute away from dishonest denials. Even a client inclined to commit perjury about whether he was in the intersection against the light will have less reason to do so if he can easily learn from his lawyer that the plaintiffs claim can be defeated honestly-by proving that the plaintiff was contributorily negligent in jumping out into the intersection so soon after the light changed, and without looking for opposing traffic.

This is a very powerful card. It is an explanation of why having an attorney-client privilege would vastly improve the court system; it would reduce perjury by facilitating better defenses. The logic goes like this. When a plaintiff claims something like “he entered into a contract and did not follow through,” the defendant has two options. He can directly deny the claim, saying something like “I did not enter into a contract” or “I did follow through,” or he can use a nuanced defense like “that claim is true, but I was underage, so I still should not be penalized.” The card claims that defendants, ignorant about the law, would be inclined to lie and directly deny claims if their (well-informed) lawyers were not there to advise them about their better – and probably more honest – options for a defense. Good stuff in round; it lets you beat the aff at their own game.


http://www.jstor.org/action/showPublisher?publisherCode=chicagolaw




The US Adversarial Criminal Justice System Minimizes Error ABBZacharias, Fred. “THE DUTY TO AVOID WRONGFUL CONVICTIONS: A


A second possible objection to this Article’s interpretation of Model Rule 1.1 centers on the assumption that creating a risk of a false conviction can be unreasonable. Prosecutors act within an adversary system. In the purest conception of the adversary system, so long as prosecutors operate legally, the system will compensate for litigation conduct that is prejudicial to defendants. For example, defense attorneys will be able to elicit that prosecutors have browbeaten or over-influenced witnesses, jurors will avoid false inferences prosecutors urge them to draw, and the combination of cross-examination, judicial oversight, and juror wisdom will expose the unreliability of evidence prosecutors introduce. Unlike a prosecutor’s under-zealousness, over- zealousness is presumptively corrected by other players in the adversary system.123 Under this conception, prosecutors never create an “unreasonable” risk of a false conviction because the adversary process, by definition, produces reasonable results. Thus, prosecutors should not be subject to discipline for unreasonable behavior under rules like Model Rule 1.1.

This interpretation of competent representation suggests that a prosecutor has an obligation to exercise care in carrying out legally assigned tasks (including those aimed at preventing wrongful convictions), but no broader duty. Thus, for example, a prosecutor would need to comply with statutory and constitutional discovery obligations. He would, however, have no duty to refrain from prosecuting doubtful cases, to avoid unintentionally producing or presenting perjured testimony, or to take steps to exculpate a defendant. The adversary system will address those issues better than any prosecutorial incentives that might be created by an over-inclusive reading of the competence rule.

In an adversarial system, a biased prosecutor and a biased attorney in theory balance each other out to ensure that wrongful convictions are avoided. It is therefore necessary to preserve attorney-client privilege as it allows the lawyer to act effectively as the client’s advocate to ensure this balance.



Full disclosure encourages accurate legal advice and representation. AC.Miller, Charles. “The Challenges to the Attorney-Client Privilege.” Virginia Law Review.

262 (1963). The traditional justification for the attorney-client privilege has been that it encourages free communication form client to lawyer. It is the client’s disclosure that is protected. In theory the attorney’s communications are protected only insofar as their publication would disclose the client’s communication to him. That the privilege has assumed this characteristic is explained by its history. The privilege arose in a time when attorney-client relations were completely personal, and without the problems of corporate organization to complicate them. People needed lawyers because they were in trouble. The privilege to talk freely with their attorneys was though to be necessary to guarantee that the clients would make full and accurate disclosure of all the facts to their lawyers. Only through such disclosure could lawyers be in a position to advise and represent their clients adequately.

In the modern business context this remains a valid justification for the attorney-client privilege. There continues to be a reluctance among some clients to make full disclosure to lawyers for not altogether rational reasons, and the existence of the privilege can be an inducement for them to do so. The public interest in encouraging such disclosure to attorneys is substantial. Self-policing is still the most effective law enforcement tool, and attorneys, as advisors on the applicability of the law, are the means by which adherence to it is effectuated. This function of attorneys is often overlooked by those who urge that the attorney-client privilege is an unwarranted restriction n the search for the truth. It should not be overlooked because it is quite important. Most clients will act on their attorney’s advice, and will not undertake conduct which they are advised would constitute a violation of the law. Many will abstain from conduct that the attorney warns is close to the line of legality. To encourage full disclosure of contemplated action by clients to lawyers is to encourage more accurate advice on the legal consequences of proposed action, and thereby to promote obedience of the law. The attorney-client privilege fosters such full disclosure, and to that extent makes a positive social contribution.



The attorney-client privilege produces reliable results . AC.Cohen, James. “The Attorney-Client Privilege, Ethical Rules, and the Impaired Criminal

Defendant.” University of Miami Law Review. 529 (1997-1998). pp. 529-586The attorney and the client can refuse to reveal their communications in judicial proceedings because of the importance placed on candid communication in the professional relationship." It is an exception to the important duty of all individuals to disclose relevant evidence in legal proceedings. The privilege is rooted in the belief that the client will not be truthful with his lawyer absent the guarantee that the client's secrets will be held inviolate. The argument in support of this privilege is simple. If the client communicates candidly and completely, the lawyer will be better able to provide legal advice and steer the client through a lawful course. Furthermore, an adversary system that operates with fully informed lawyers will produce reliable results.

If the public believes that the justice system produces reliable results, there would be increased faith, adherence, acceptance, and sanctity of the system. The reason truth-seeking would be important is to produce reliable results that enhance the people’s faith in and adherence to the justice system. But the attorney-client privilege is just as important in reaching that goal.

The privilege is the basis of law and has legal importance. CFSGC Sisk, PJ Abbate, “The Dynamic Attorney-Client Privilege”. Geo J. Legal Ethics, 2010.

HeinOnline. http://personal2.stthomas.edu/gcsisk/Siskwebpagestuff/Sisk.Dynamic.Privilege.pdf

“The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law.” While the lawyer generally is obliged to protect all information relating to the representation and not voluntarily disclose such information, the lawyer nonetheless may be required to respond to a lawful subpoena or court order that seeks information outside the parameters of a legally-recognized privilege. But the lawyer should not be forced to divulge the substance of communications falling within a privilege and indeed must take appropriate steps to assert and competently advance a privilege in response to any request. Thus, the contents of communications between an attorney and a client constitute a specially-protected category of confidential information.


http://personal2.stthomas.edu/gcsisk/Siskwebpagestuff/Sisk.Dynamic.Privilege.pdf


The attorney-client privilege encourages clients to make more moral decisions. CFSGC Sisk, PJ Abbate, “The Dynamic Attorney-Client Privilege”. Geo J. Legal Ethics, 2010.


One of the primary justifications for the attorney-client privilege is to allow the client to confide fully in his or her lawyer so that the lawyer has the information necessary to advise the client about what the law requires. Lawyers regularly counsel and successfully persuade their clients not to embark upon or persist in legally wrongful conduct. Thus, an abundant public benefit is achieved by enhancing this confidential private relationship. Ideally, the lawyer will also be in a well-informed position to encourage the client to consider the morally appropriate course of action as well. If the privilege were narrowly defined to protect only communications about “legal” matters understood in a strict or formal sense, the lawyer’s vital role as an advisor would be depreciated into the morally-bankrupt status of legal technician.

Lawyers have a large influence on the moral decisions of their clients. CFSGC Sisk, PJ Abbate, “The Dynamic Attorney-Client Privilege”. Geo J. Legal Ethics, 2010.


Lawyers are uniquely well-positioned to play an integral role in cultivating an ethically-sensitive organizational culture. Lyman Johnson reports that “[t]he reason directors enter the boardroom, and abandon their pre-existing moral vision, is that no one in the room encounters or engages them morally!” While the mere presence of a lawyer in a board meeting may not cloak the entire session with the attorney-client privilege, a lawyer called upon to provide genuine legal advice to the officers and directors should be permitted to extend his or her remarks to the moral challenges involved, while still being able to invoke the protection of privilege to that extent.





Lawyers will better guide their client’s decisions if the privilege protects more. CFSGC Sisk, PJ Abbate, “The Dynamic Attorney-Client Privilege”. Geo J. Legal Ethics, 2010.


Moreover, if we wish to encourage lawyers to engage in moral deliberation with their clients, lawyers must be able to assure clients that this moral exchange is confidential, a protection secured by the attorney-client privilege. By contrast, a crabbed construction of the privilege that excludes efforts by lawyers to elevate the discourse with clients beyond the narrow question of what is legally permissible would reduce lawyers to amoral legal technicians and leave clients unable to call upon lawyers to assist in moral aspiration. If we want lawyers to be morally- and ethically grounded, then we must assure lawyers that their introduction of social, political, business, and economic factors, as well as moral principles, into a discussion with legal clients will not have the perverse effect of removing the protection of the privilege.

The truth can still come out despite attorney-client privilege. PNGEdward J. Imwinkelried, The Application of the Attorney-Client Privilege to Non-


Common-law and statutory privileges such as the attorney-client privilege lack a derivative evidence component. For example, assume that an attorney breaches confidentiality by informing the policy that the defendant told him that the defendant confessed her guilt to her brother. The police follow up on the investigative lead and contact the brother, who agrees to testify against the defendant. Had the police obtained the investigative lead about the defendant’s brother by violating the fourth amendment, the derivative evidence component of the constitutional exclusionary rule might bar the prosecution from calling the brother as a trial witness. However, the defendant cannot suppress the brother’s testimony on the theory that the police obtained the testimony from a violation of the attorney-client privilege. The attorney-client doctrine is merely a common-law privilege. Because the privilege lacks constitutional status, the courts refuse to enforce the privilege by the extraordinary remedy of suppressing even evidence derived from a violation of the privilege.

This evidence can be used to counter an opponent’s argument that attorney-client privilege creates absolute confidentiality and stifles the truth. If you use this example, be sure to familiarize yourself with the Fourth Amendment (the right to be secure against unreasonable searches) as to not be caught off-guard during cross examination.




Attorney-Client Privilege is vital for effective representation. PNGLaurence Steckman and Richard Granofsky. “The Assertion of Attorney-Client Privilege

by Counsel in Legal Malpractice Cases: Policy, Privilege, and the Search for Truth in Cases Involving Implied Waivers.” 2010.

The basic purpose of the privilege is to protect clients from the exposure of communications made to their attorneys, which were intended to be confidential. The policy is meant to encourage full and candid disclosure of all pertinent information to the attorney. Confidentiality must be maintained to enable clients to fully trust their attorneys with their most private secrets. Often, frank and candid disclosure by the client is essential for effective representation, such as in criminal defenses. Full disclosure is encouraged though others may be injured because they are thereby precluded from learning pertinent facts (pg. 1).



Attorney-Client Privilege Protects the Accused Attorney-Client Privilege Lets Lawyers Effectively Advise their Clients ABB

Hazard, Geoffery. “An Historical Perspective on the Attorney-Client Privelege.” September 1978. Clifornia Law Review Inc. (pg 1061)

The attorney-client privilege may well be the pivotal element of the modern American lawyer's professional functions. It is considered indispensable to the lawyer's function as advocate on the theory hat the advocate can adequately prepare a case only if the client is free to disclose everything, bad as well as good. The privilege is also considered necessary to the lawyer's function as confidential counselor in law on the similar theory that the legal counselor can properly advise the client what to do only if the client is free to make full disclosure.

Revoking Attorney-Client Privilege Removes Protection from Self-Incrimination ABBHazard, Geoffery. “An Historical Perspective on the Attorney-Client Privelege.”

September 1978. Clifornia Law Review Inc. (pg 1063)In present-day law, the issue concerning the attorney-client privilege is not whether it should exist, but precisely what its terms should be. There is no responsible opinion suggesting that the privilege be completely abolished. Total abolition would mean that an accused in a criminal case could not explain his version of the matter to his lawyer without its being transmitted to the prosecution. Defense counsel would become a medium of confession, a result that would substantially impair both the accused's right to counsel and the privilege against self-incrimination. Hence, it is common ground that the privilege ought to apply at least to communications by an accused criminal2 to his counsel,3 in contemplation of defense of a pending or imminently threatened4 prosecution,5 concerning a completed crime.' Beyond this there is controversy as to the proper scope of the privilege, although superficially the authorities are in substantial agreement.



Attorney-client privilege is not to blame for wrongful convictions. PNGC. Ronald Huff, Arye Rattner, Edward Sagarin and Donal E. J. MacNamara. “Guilty

Until Proved Innocent: Wrongful Conviction and Public Policy. Crime & Delinquency 1986.

The single most important factor leading to wrongful conviction in the United States and England (Brandon and Davies, 1973) is eyewitness misidentification. Nearly 60% of the cases in our database involve such errors and, as reflected in Table 3, nearly eight out of ten survey respondents ranked witness error (primarily eyewitness misidentification, but also including some less frequent types of witness error) as by far the most frequent type of error leading to false conviction.

Sometimes these eyewitnesses have no doubt whatsoever about the accuracy of their testimony; in other cases, they had either slight or lingering questions in their own minds, but nevertheless felt sufficiently confident that they were willing to testify against a defendant.

This evidence can be used to counter any point an opponent makes about attorney-client privilege leading to the conviction of innocents.


November/December 2013 Con: Abolition of confidentiality req

Abolition of Confidentiality Requirement The confidentiality requirement should be abandoned because it is does not suppress relevant

information and is unnecessary. CFSRice, Paul R., Attorney-Client Privilege: The Eroding Concept of Confidentiality Should

Be Abolished. Duke Law Journal, Vol. 47, #5, March 1998. http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1026&context=dlj

Because confidentiality is not a logical imperative of the attorney-client privilege, there is no evidence that extending the privilege protection to non-confidential attorney-client communications would suppress relevant communications that would occur without the privilege protection. Therefore extending the privilege protection to such communications would not be inconsistent with the philosophy of construing the privilege narrowly to suppress only those communications that need the privilege's encouragement. Confidentiality, therefore, should be abandoned as a requirement for the attorney-client privilege because compliance with it generates significant unnecessary costs in the preservation of the secrecy, the proof of that preservation, and the resolution of disputes surrounding it.

Abolition of the confidentiality requirement would be beneficial for the attorney-client privilege and not hinder communication between the parties. CFS


The privilege's protection of the use of a client's statements to counsel is what encourages openness and candor in such communications. While a client's desire for privacy or secrecy may inhibit open communications in the presence of third parties, this is a condition that the client can control if he wishes. The presence or absence of secrecy, however, neither furthers nor detracts from the distinct goal of the privilege, independent of the client's predilections. Aside from tradition, there is no justification for courts' preoccupation with the context of communications or the conditions under which they are subsequently maintained. Abolition of the element of confidentiality will not have a negative impact on the candor of those who wish to speak secretly with their attorney. Consistent with existing practices, the client simply will arrange an environment that accommodates his comfort level, and will follow procedures that will ensure the maintenance of that secrecy. Conversely, the abolition of the confidentiality requirement would have significant positive consequences for the creation, maintenance and assertion of the attorney-client privilege.




November/December 2013 Con: Abolition of confidentiality req

The abolition of the confidentiality requirement is not correlated to more fraudulent use of the privilege. CFS


The elimination of the confidentiality requirement will not result in an increase in the fraudulent use of the attorney-client relationship to make business communications privileged by circulating them through an attorney. This is a problem that is exclusively related to the purpose of the communication-its primary purpose must be to obtain legal advice or assistance. The presence or absence of confidentiality is unrelated to this problem.

Abolishing the confidentiality requirement could be read well as a counter-plan or counter-advocacy because then it would let you get out of disadvantages to the confidentiality requirement that the aff could read.



November/December 2013 Con: Inquisitorial system not better

Inquisitorial System Not Better Adoption of an Inquisitorial System will not lead to more truth. PNG

Oxford University Press. 2008. “The aims and values of ‘criminal justice.’” The danger in an inquisitorial system is that whoever conducts the investigation (whether the police, a prosecutor or an examining magistrate) will come to favor one particular view of the matter, and that this will influence the construction of the dossier. Material helpful to the accused may be excluded. There is also the danger that a trial judge, having formed an initial view of the case based on a reading of the dossier, will give too much weight to evidence adduced at the trial which is consistent with the pre-existing theory, and too little to that which conflicts with it (pg. 1).

The inquisitorial system's benefits are overplayed. PNGGerald Walpin. 26 Harvard Journal of Law & Public Policy 177 (2003). America's

Adversarial and Jury Systems: More Likely to Do Justice.Proponents of the inquisitorial system argue that when lawyers interview and prepare witnesses in the adversarial system, they are suborning perjury. Conversely, they argue that this does not occur in the inquisitorial system because lawyers are generally not allowed to interview witnesses before the judge has done so. Instead, the judge acts as the examiner-in-chief, with counsel relegated to a limited role in questioning a witness. Supposedly, the purpose of this is to keep the witness “pristine and pure.” But does anyone genuinely believe that, because the lawyer may not talk to a witness, other persons less ethically bound will not talk to the witness and, perhaps more directly, accomplish that perjury? In addition, why should anyone suggest that a poor and un-refreshed recollection wears the halo of purity and trust that furthers the fact-finding process?

What our system provides is a more likely avoidance of inadvertently erroneous testimony. We all know that Alzheimer’s disease is not the only reason for failed recollection. We all have been through totally innocuous situations of being certain of something only to recognize our error when faced with a document, picture, or even just a reasoned review that causes a sudden recall of the correct facts. A lawyer can and should challenge a witness’s recollection. This is not inducing perjury, but eliciting the truth. I grant that a gray area exists between witness preparation and suborning perjury. I will also concede the probability that some lawyers actively participate in getting witnesses to testify falsely. But there is no reason to believe that a greater amount of incorrect testimony is given in the United States than in inquisitorial procedure countries. The word perjury exists in the German language because, as in all countries, perjury exists. That is due to human nature, not to either institutions in a specific country or a specific legal system.

The arguments in favor of the inquisitorial system at the beginning of this evidence is just there for context. I would not suggest reading this part of the evidence, as it is a waste of time and generally might explain the aff position, but rather focus on the second part of this evidence, which responds to the first.



Judges make rushed judgments in the inquisitorial system. PNGGerald Walpin. 26 Harvard Journal of Law & Public Policy 177 (2003). America's

Adversarial and Jury Systems: More Likely to Do Justice.Our adversarial system provides a procedure for focusing on one or more issues that would determine the dispute between the parties—a motion for summary judgment. In our adversarial system, this expeditious procedure does not rest on a judge’s quick reaction to what he has heard, but on a procedure that guarantees both parties the right to delve into all relevant facts until no relevant, disputed fact remains. Moreover, what proponents of the non-adversarial system find beneficial in the judge’s ability to decide the case before him quickly may well be merely a rush to judgment without having heard all available evidence. In my experience, even when a judge expresses skepticism (or worse) about a litigator’s case after having only heard an overview of the case, a good lawyer is often able to change that judge’s opinion by eliciting additional facts and authorities. The adversarial system requires that opportunity; the inquisitorial system frustrates it.

The inquisitorial system claims lower costs, but this only happens at expense of justice. PNGGerald Walpin. 26 Harvard Journal of Law & Public Policy 177 (2003). America's

Adversarial and Jury Systems: More Likely to Do Justice.Inquisitorial system proponents also tout its reduced costs due to the many expedited procedures leading to an earlier final determination. Such a position is unassailable if you believe that cost as determined by the state (and not by each party) should be determinative. If the cost of a court proceeding was our sole concern, we could eradicate any cost by returning to medieval trial by combat, for example. A system of justice should value justice, not money. One example of the German inquisitorial system’s emphasis on cost is its procedure of not making verbatim transcripts of witnesses’ testimony. Instead, the judge writes a synopsis of the testimony. The procedure is problematic in two ways. First, we all know from experience that there can be, and usually is, a difference between what a person actually said and what a listener summarized him as saying. For example, in my youth, we had a game called Telephone, where people would sit in a circle and one person would whisper a statement to the next person and this would be repeated until it goes around the circle back to the original message giver. Invariably, the returned message did not resemble the message when first given. This phenomenon is equally possible in a judge trying to summarize a witness’s testimony after it is given. For that reason, it has been stated that “[t]he recording of testimony is in a very real sense a circumstantial guaranty of trustworthiness.”

Second, any litigator who has tried cases knows the importance of the exact words spoken by a witness. Such words are invaluable in cross-examining that witness. Also, because it is unknown what future witnesses will say, summaries may not capture the words or testimony that will be most relevant in analyzing future witnesses’ testimony. A good litigator providing a persuasive summation will use the witnesses’ specific words, not just a summary of their testimony.



The inquisitorial system does not make better use of experts than the adversarial system. PNG

Gerald Walpin. 26 Harvard Journal of Law & Public Policy 177 (2003). America's Adversarial and Jury Systems: More Likely to Do Justice.

Another assertion is that the inquisitorial system makes better use of expert than the adversarial system. In Germany, for example, only one expert is chosen per field, and the court selects this expert. The theory behind this limitation of a single expert chosen by the judge appears to be a rather simplistic view that only one truth in science exists, and, therefore, only one expert is necessary at trial. The reality, however, may be to the contrary. I have found that recognized experts can sincerely hold divergent views on a given set of facts. For example, the judge’s decision to pick the expert who will espouse the majority view could have precluded expert testimony that the world was round prior to Christopher Columbus or that it was possible for ship captains to determine location based on longitude before John Harrison. Obviously, hearing divergent expert opinions can only further the search for truth.


November/December 2013 Con: ACP not confidential

Attorney-Client Privilege Not Ultimately Confidential

Attorney-Client Privilege is not as extremely limiting as it is commonly perceived to be. PNGEdward J. Imwinkelried, The Application of the Attorney-Client Privilege to Non-


The statement that the majority and minority views exist on the application of the attorney-client privilege to expert information is an oversimplification. In fact, a three-way split in authority exists over whether the attorney-client privilege attaches to the client’s communications with experts such as a psychiatrist. One school of thought maintains that the privilege does not attach. The jurisdictions subscribing to this view point out that the privilege applies only to communications between attorney and client and that the expert is not an attorney. A second, compromise school asserts that the privilege applies only if the client makes statements to the expert or reveals to the expert private data such as his mental condition—information which realistically emanates from the client. Courts adhering to this view characterize the expert as an essential intermediary for communication between client and attorney. A third school of thought proposes that the privilege attach whenever the attorney or client discloses information to an expert consulted for purposes of trial preparation. The cases extending the privilege to appraisers and engineers embrace this position. In these cases, at the attorney’s request the expert evaluated property viewable by the public and sometimes even in the opposing party’s possession (pg. 1).



Framework: Constitutionality of Attorney-Client Privilege

Promises generate special moral obligations that operate on a prior level to all other rights and duties. BPG

H.L.A. Hart, 1955. “Are There Any Natural Rights?” The Philosophical Review, Vol. 64, No. 2, pp. 175-191. Duke University Press.

The most obvious cases of special rights are those that arise from promises. By promising to do or not to do something, we voluntarily incur obligations and create or confer rights on those to whom we promise; we alter the existing moral independence of the parties' freedom of choice in relation to some action and create a new moral relationship between them, so that it becomes morally legitimate for the person to whom the promise is given to determine how the promisor shall act. The promisee has a temporary authority or sovereignty in relation to some specific matter over the other's will which we express by saying that the promisor is under an obligation to the promisee to do what he has promised. To some philosophers the notion that moral phenomena-rights and duties or obligations-can be brought into existence by the voluntary action of individuals has appeared utterly mysterious; but this I think has been so because they have not clearly seen how special the moral notions of a right and an obligation are, nor how peculiarly they are connected with the distribution of freedom of choice; it would indeed be mysterious if we could make actions morally good or bad by voluntary choice. The simplest case of promising illustrates two points characteristic of all special rights: (i) the right and obligation arise not because the promised action has itself any particular moral quality, but just because of the voluntary transaction between the parties.

You would follow this with analysis about how (a) the constitution operates as a promise between the people on the United States and the government and (b) the attorney-client privilege acts as a promise between an attorney and client. Subpoint b already disproves the resolution, but you will need to do more work to prove subpoint (a)

There Is A Violation Of the Sixth Amendment if an Attorney Cannot Provide Adequate Representation. BPG

Paul R. Rice and Benjamin Parlin Saul, 2002. “Is the War on Terrorism a War on Attorney-Client Privilege?”http://www.americanbar.or /publications/criminal_ justice_magazine_home/crimjust_cjmag_17_2_privilege.html.

Although the attorney-client privilege has existed for a millennium (originating under Roman law), the privilege operates only as a rule of evidence. The purpose of the privilege is to facilitate the proper functioning of our adversarial system in which each party must prepare a case independent of the other party. The theory behind the privilege is that when clients are assured that their communications will be kept confidential they will not worry about incriminating themselves, and, therefore, will communicate more openly


November/December 2013 Con: ACP not confidentialand candidly with their attorneys. Our adversarial system functions on the premise that only with complete client disclosures can the attorney render effective legal assistance. In substantial measure, the fairness of an adversarial criminal justice system, be it military or civilian, depends on the attorney-client privilege.

Although the privilege is perceived as fundamental to the success of the adversarial system, the Supreme Court has never held it to be constitutionally guaranteed. Its violation, therefore, raises no constitutional issue. Denying the privilege, however, can indirectly implicate constitutional guarantees. To the extent that the privilege is fundamental to the Sixth Amendment guarantee of the effective assistance of legal counsel, a privilege violation may implicate a constitutionally protected right. For a Sixth Amendment claim to succeed, the accused must not only establish a violation of the privilege, but also demonstrate that privilege violation affected the attorney’s ability to render effective representation. The Court will not axiomatically find a Sixth Amendment violation when a privilege violation exists. ( See Weatherford v. Bursey, 429 U.S. 545, 557–58 (1977).)

Here you would then put cards about how the attorney-client privilege is necessary to representation. What is great about this framework is that if they prove that the attorney-client privilege is not necessary to representation, that does not mean you affirm because there is no pro-active promise or obligation to take away attorney-client privilege.

The attorney-client privilege does not mean the lawyer cannot stand witness: example of representing clients with competency issues. AC.

Cohen, James. “The Attorney-Client Privilege, Ethical Rules, and the Impaired Criminal Defendant.” University of Miami Law Review. 529 (1997-1998). pp. 529-586

Courts have distinguished among disclosure of client statements, the attorney's opinion testimony about the client's competency, and testimony about the client's demeanor. The attorney-client privilege does not bar the attorney from testifying about her observations of the client's demeanor and her opinion about the client's competency in a post-conviction competency hearing, as long as the client's statements are not disclosed. In such cases, courts have distinguished between the information the attorney obtains through the sense of hearing, which is protected by the privilege, and information obtained through the sense of sight, which is not. Courts that permit attorneys to testify about information they obtained through observation have followed the dominant view.

The privilege does not have to be about deception and the personal interests in winning the case, but the relationship between the attorney and the client and good legal representation for the best results. This exception demonstrates that the privilege is not about winning the case, but about best representing the client, even if that means testifying in court about the competency of the client.



Privacy rationale justifies attorney-client privilege. TF.Northrop, Daniel (2009). The Attorney-Client Privilege and Information Disclosed to an

Attorney with the Intention That the Attorney Draft a Document To Be Released to Third Parties: Public Policy Calls for at Least the Strictest Application of the Attorney-Client Privilege. Fordham Law Review 78 (3).

The privacy rationale is a second theory frequently used to justify evidentiary privilege. The theory emphasizes that human autonomy, respect for relationships, and respect for "the bonds and promises that protect shared information," are important values that must be protected. Consequently, the personal autonomy of a client is a compelling interest that justifies the impairment of the truth-seeking process. If a client confides in her attorney, compelled disclosure is inherently wrong, violating the right of the individual to control the distribution of private information and to form private loyalties. The result is the infliction of two distinct harms: (1) the embarrassment of having secrets revealed and (2) the forced revelation of confidential information. "The first harm is shame, the second, treachery." Such a compelled disclosure would harm both the client and the attorney. Although the need for privacy is not always viewed as a legal interest, the importance of privacy continues to be emphasized in privilege disputes and may help to shed light on why evidentiary privilege is respected and supported in the American justice system.

May be used as sub contention.

No legal body considers attorney-client privilege absolute. PNGEdward J. Imwinkelried, The Application of the Attorney-Client Privilege to Non-


Even if the courts were writing on a clean slate, it is unwise as a matter of public policy to extend absolute protection to all of the expert’s information about the case. As previously stated, by blurring the distinction between the client’s communications and the rest of the expert’s information, several courts have concluded that the attorney-client privilege protects all of the expert’s information. Reasoning from that conclusion, those courts understandably have held that the opposing party may neither depose the export before trial nor call the expert as a trial witness. If all the expert’s information was absolutely privileged, anything the expert said at the deposition or trial would violate the privilege. Ultimately, this line of reasoning transforms an evidentiary privilege into a sweeping incompetency rule, completely barring any testimony by the expert.


November/December 2013 Con: ACP not confidentialThe decided trend in American competency law has been to relax competency standards. Congress accelerated that trend by adopting Federal Rule of Evidence 601. That rule states that “[e]very person is competent to be a witness except as otherwise provided in these rules.” Although there are rules regulating the competency of judges and jurors, no rule even faintly suggests the complete incompetency of any type of expert witness.

The price of rendering an expert completely incompetent is intolerably high. By expanding the attorney-client privilege to this extreme, the courts in effect would be allowing one party to place an expert in quarantine. That expansion of the attorney-client privilege enables the party to deprive both the opposition and the trier of fact of the benefit of valuable expert witnesses. The courts should not permit one party to corner the market on expert witnesses. It is particularly unfair to do so on the arbitrary basis that that party first consulted the expert. The drastic consequences of extending the attorney-client privilege to all the expert information make that extension unacceptable as a matter of policy.

Attorney-client privilege is often too narrowly construed; it is in fact often loosely applied. PNG

Richmond, Douglas. “The Attorney-Client Privilege and Associated Confidentiality Concerns in the Post-Enron Era.” 2005. 110 Penn St. Law Review. 381.

Courts narrowly construe the attorney-client privilege because it limits full disclosure of the truth. There is much the privilege does not protect. For example, the privilege ordinarily does not protect a client’s identity, as illustrated by recent cases in which courts compelled law firms to reveal to the government the identities of clients who participated in aggressive tax avoidance strategies. Similarly, the privilege does not protect an attorney’s observations about a client’s demeanor or mental capacity because “any member of the public could make those observations.” While the privilege protects the content of an attorney-client communication from disclosure, it does not protect from disclosure the facts communicated. Nor does the privilege shield from discovery communications generated or received by an attorney acting in some other capacity, or communications in which an attorney is giving business advice rather than legal advice. The attorney-client privilege certainly is not absolute, and it may be waived either voluntarily or by implication. The burden of establishing a waiver generally is borne by the party seeking to overcome the privilege, although some courts hold that that the party asserting the privilege bears the burden of establishing that it has not been waived. The most difficult cases, of course, are those involving implied waivers; case law affords little guidance for courts or lawyers in terms of how broadly implied waivers sweep.


November/December 2013 Con: Gov legitimacy

Protecting Attorney-Client Privilege Preserves Government Legitimacy

Disregarding attorney-client privilege is a form of government coercion. TF.Allen, John (2006). Protecting the Privilege - MRPC 3.4(g) is NOT the Way. Michigan Bar

Journal.If a government lawyer’s request of a waiver is an unethical invasion of the privilege, then is it also unethical for the corporate lawyer to ask for a joint defense agreement, which includes waiver of privilege between the same parties? I hope not. But if not, why not? In addition, if the proposed MRPC 3.4(g) makes it a disciplinary offense every time a government lawyer ‘‘obtain[s]’’ privileged material in exchange for more favorable treatment, what of the corporate lawyer whose client chooses (without any coercion) to allow the government to ‘‘obtain’’ such material, to avoid or lessen the corporate prosecution, or just to help get a bad guy? The privilege still belongs to the client (not the lawyer), does it not? But if the corporate lawyer assists the business client in making such a deal, and thus assists the government in ‘‘obtaining’’ the privileged material, is that not ‘‘knowingly assisting’’ the government lawyer’s misconduct? If it is, then the corporate lawyer has his or her own issues with MRPC 8.4(a). To most, the key issue in the application of the Thompson Memorandum is not that, sometimes, protected information may be ‘‘obtained’’ by the government, but rather that coercion, express or implied, is used by some government prosecutors in doing so. That coercive element is difficult to reflect fairly in a strict liability, quasi-criminal disciplinary code, such that lawyers (all lawyers, not just government lawyers) know, in advance, how to conform their conduct to the requirements of the law. It also seems unfair to apply any such prohibition only to prosecutors, when a ‘‘coerced’’ waiver could be (and is) as easily engineered by lawyers other than those working for the government.

Use in-case as potential governmental legitimacy contention.

Terrorism exception to attorney-client privilege undermines justice and may spread. TF.Rice, Paul (2002). Is the War on Terrorism a War on Attorney-Client Privilege? Criminal

Justice Magazine, 17 (2).Although judicial screening still adds a safeguard to the procedures articulated in the order, it does not preclude the possibility that many otherwise privileged communications between attorney and client will be disclosed, even to the prosecuting teams. The only other limitation, namely that "acts of violence or terrorism are imminent," is unclear in its meaning. How will the privilege team determine whether the communications relate to imminent acts? How will the privilege team define imminence? It seems fair to assert, in light of the many national alerts the Department of Justice has announced since September 11, that the


November/December 2013 Con: Gov legitimacyprivilege team might disclose information with great frequency. In other words, given the nation’s heightened state of alert, the privilege team may not only be inclined, but also able to justify the use of intercepted material by claiming such material might help to prevent an imminent attack. Moreover, although the imminent acts restriction implies that any disclosures will be made only to persons or agencies attempting to prevent these acts, no explicit language exists to that effect. Even if disclosure was limited in this manner, once the information is disseminated, as a practical matter, there can be no assurance the attorney-client communications will not be more widely released and confidentiality further undermined.

Can be used to advance endangered nature of attorney-client privilege in status quo, thus we need to protect.

Procedural justice trumps decision-making in courts – attorney-client privilege upholds. TF.Warren, Robert (2000). Public Trust and Procedural Justice. Court Review.Importantly, it is the fairness of court processes, not the fairness of court outcomes or decisions, that are most important. Literature in the procedural justice field indicates that both litigants and the general public can—and do—distinguish between the fairness of the process, and the fairness, or even favorability, of the outcomes. In evaluating judicial performance, and in determining the level of trust in judicial authority, the fairness of the dispute resolution process is more important than even a favorable outcome. In the minds of litigants, the importance of a favorable outcome is consistently outweighed by the impact of an unfair process. In other words, a prevailing litigant might look back upon a recent court experience and say, “Yes, I won the case, but I don’t know if it was worth it. It cost me too much, the judge wouldn’t let me speak, I didn’t understand what the judge was talking about, I was treated like dirt. I hope I never have to go through that again.” On the other hand, an unsuccessful litigant can leave the courtroom saying, “I lost my case but I had my day in court, I was treated fairly, I can move on.”

Good NEG contention level argument.

Procedural justice builds public trust and court legitimacy – attorney-client privilege upholds. TF.

Warren, Robert (2000). Public Trust and Procedural Justice. Court Review.These findings on the relationship between procedural justice and public trust are important for a number of reasons. First, most judges tend to focus on outcomes, not process, i.e., on the legal correctness of their rulings and decisions rather than on the fairness of their decision-making processes. Yet it is often the fairness of these decision-making processes, rather than the judicial decisions themselves, that are important to litigants and the general public, and it is this sense of fairness that forms the basis of judicial performance evaluation and determines the level of trust in judicial authority. As judges, we should pay more attention to the fairness of our decision-making processes Second, it is the fairness of our decision-making processes that


November/December 2013 Con: Gov legitimacymakes our courts unique. The fundamental goals and values of the American court system are procedural, not substantive. It is how decisions are reached in our judicial system, rather than the decisions themselves, that distinguishes the work of American courts from the work of the other two branches of government and explains why the American judicial system is increasingly the envy of both developed and developing countries throughout the world. It is the values inherent in the Trial Court Performance Standards and in the concept of the rule of law that distinguish the decision-making processes of the judicial branch from those of the political branches. As former New York Governor Mario Cuomo said in his remarks at the National Conference on Public Trust and Confidence in the Justice System: “The judicial system is different from the political branches of our government and that difference makes all the difference to our strength and glory as a democracy.” Finally, procedural justice is a fundamental shared value— shared by litigants, the American public, and people around the world. It is the courts’ commitment to procedural justice that can allow the courts to connect much more successfully with the communities that we serve.

Pair up with previous card for solid NEG case.

Supreme Court recognized the despotism of the law in the absence of the attorney-client privilege. AC.


In an 1876 case involving a dispute over a life insurance policy, Connecticut Mutual Life Ins. Co. v. Schaefer, the Court described the interests served by the privilege in particularly strong terms: “If a person cannot consult his legal adviser without being liable to have the interview made public the next day by an examination enforced by the courts, the law would be littler short of despotic. It would be a prohibition upon professional advice and assistance.” The Court made this statement in support of its conclusion that the attorney-client privilege had been properly invoked to block testimony by an attorney about conversations with a client whom he had represented in a divorce. The defendants insurance company had sought to examine the attorney about statements the client had made to him about her deceased ex-husband that, if admitted into evidence, might have proved that false statements were made in the insurance application. The Court upheld the assertion of privilege and applauded the protection of confidential communications to one’s attorney as dictated by the “wise and liberal policy” quoted above.


November/December 2013 Con: ACP protects communication

Attorney-Client Privilege Protects Communication Communication is core to preserving relevant legal information – attorney-client privilege

preserves communication. TF.Grimm, Paul (2008). Discovery about Discovery: Does the Attorney-client Privilege


The range and limit of the duty to preserve is addressed in many decisions, and is beyond the scope of this article. The duty rests on both the attorney and the client. The duty to preserve potentially relevant information includes, and is effectuated by, a reciprocal duty to communicate. Counsel's duty to communicate with clients about the preservation of discoverable materials has been articulated by the American Bar Association, and in a variety of court decisions. For example, in Zubulake v. UBS Warburg LLC (Zubulake V), the court based its decision finding that there was a failure to preserve on “counsel's obligation to ensure that relevant information is preserved by giving clear instructions to the client to preserve such information and, perhaps more importantly, a client's obligation to heed those instructions,” and enjoined counsel and clients “to communicate clearly and effectively with one another to ensure that litigation proceeds efficiently.”

May function as sub-contention.

The way business and the legal profession operates today provides more justifications for the type of communication promoted by the attorney-client privilege. AC.

Miller, Charles. “The Challenges to the Attorney-Client Privilege.” Virginia Law Review. 262 (1963).

There is another justification for the privilege, particularly in the modern business context, that has not been articulated by the courts or the commentators. This justification results in protection from disclosure of the lawyer’s advice to his client as well as the client’s communications to his lawyer—not only because disclosure of the former might revel facts told the lawyer by the client, but because the failure to afford such protection will induce guarded or perhaps misleading advice.

This is not an indictment of the integrity of the bar. Rather it is a recognition of the bifurcated role the corporate lawyer plays. The corporate lawyer is not only an advisor to his client, he is its advocate. The performance of these two functions sometimes involves a lawyer in the maintenance of positions that are not consistent. Take the case of the corporate attorney asked to advise his client, a manufacturing corporation, on the legality of a marketing arrangement with the corporation's distributors. In his role as advisor the lawyer may tell his client that the proposed arrangement raises several questions not heretofore resolved, and that there is a distinct


November/December 2013 Con: ACP protects communicationlikelihood that the arrangement could ultimately be held to violate a federal statute or perhaps a previously entered order or decree. The corporation may nonetheless decide to undertake the program, and this may be a perfectly proper decision. If the matter is subsequently litigated before an administrative agency (e.g., the Federal Trade Commission) the lawyer, as an advocate, will be responsible for presenting the strongest possible case for the legality of the contested arrangement. But what of his prior advice? If not privileged it may be admissible evidence against the client, bearing on his state of mind or knowledge. Even if not admissible it may come to the attention of the agency or its staff and influence its subsequent actions.

If the privilege is unavailable to his client the lawyer will be aware of these possibilities when he originally is called upon to render advice. What is he to do? His rendition of accurate but undesired advice will compromise the position that, as the advocate, he may be called upon to defend. In these circumstances it would be unrealistic to discount the likelihood that the advocate will prevail over the advisor. The resultant caution with which the lawyer advises his client may mislead the client into thinking his proposed action is lawful when in fact it is not, or may not be. It may induce him to undertake a program from which he would have been dissuaded had he been clearly warned of the legal dangers. To the extent that the privilege encourages more forthright advice by lawyers it reduces the possibility of such misled clients and encouraged adherence to the law.

The attorney-client privilege’s confidentiality requirement should protect more. CFSGC Sisk, PJ Abbate, “The Dynamic Attorney-Client Privilege”. Geo J. Legal Ethics, 2010.


As the scope of the practice of law expands, so also should the defining compass of the attorney-client privilege (and the attendant expectations of attorney confidentiality). When a matter with a meaningful legal dimension is brought to a lawyer, the courts increasingly recognize that the animating purpose of the attorney-client privilege is best realized by allowing the lawyer and client to fully explore both legal and non-legal aspects in a holistic manner. In addition, if we wish to encourage lawyers and clients to engage in moral deliberation, the confidential shield of the privilege must cover introduction of such non-legal principles into the discussion. Accordingly, the scope of the privilege should correspond to the dynamic changes in the practice of law. As the parameters of what constitutes the practice of law expand, together with the introduction of law-related services, the contours of the attorney-client privilege should be adjusted proportionally.



November/December 2013 Con: ACP protects communication

Without confidentiality the privilege becomes useless. CFSRaymond Tittmann, Losing Confidence in Confidentiality: Do Expanding Exceptions to


When attorneys and clients lack confidence in the privilege, the value dissipates. They simply will not engage in the desired “full and frank” communications if the law creates a realistic possibility that a court will one day force disclosure. When the law reaches the point where the risk of disclosure makes frank communication too dangerous, lawyers and clients will operate on the assumption that the communication will be produced. For the reasons discussed below, we are nearing that point. Indeed, some lawyers have already concluded that it is no longer safe to count on the attorney-client privilege.





November/December 2013 Con: Constitutional basis

Constitutional Basis for Attorney-Client Privilege 5th Amendment basis for attorney-client privilege. TF.


On its face, the Fifth Amendment offers perhaps the clearest support for the attorney-client privilege. One author has noted that “early American criminal courts and legal scholars viewed the [attorney-client] privilege as an outgrowth of the Fifth Amendment privilege against self-incrimination.” The link is clear. The benefits associated with the attorney-client privilege arise from its ability to facilitate open attorney-client communications. These benefits would cease to exist if a client's preexisting Fifth Amendment rights were forfeited merely because he or she divulged incriminating information to counsel. Some scholars have even gone so far as to argue that the federal government's growing attempts to circumvent the attorney-client privilege may lead to the evisceration of Fifth Amendment rights. Additionally, the Fifth Amendment supports a constitutional attorney-client privilege for reasons beyond self-incrimination issues. For example, courts have suggested that the due process component of the Fifth Amendment “includes the right of one accused of crime to have the effective and substantial aid of counsel.” The attorney-client privilege is necessary to give this right substance because it would be impossible for a lawyer to counsel a client effectively or substantially without the level of frank and open communications ensured by the privilege. This relationship between the due process requirement and the attorney-client privilege coincides with one widely accepted justification for the attorney-client privilege: it should result in the client sharing more information with the attorney, who, in turn, gives more informed and effective advice to the client. Although the privilege may ultimately prevent full discovery in a criminal matter, it promotes due process by fostering better-informed counsel, more efficient judicial processes, and greater obedience to the law. The Fifth Amendment rights implicated by the attorney-client privilege feed off of the assistance of counsel right provided by the Sixth Amendment. Unless a citizen had a right to the assistance of counsel, there would be no need to preserve his or her Fifth Amendment rights in the face of consultations with counsel. While scholars may debate whether the Fifth Amendment alone provides a constitutional basis for the attorney-client privilege, few dispute that the Sixth Amendment right to counsel would have little meaning without the privilege. Indeed, some authors have referred to the privilege as the “cornerstone of the Sixth Amendment right to counsel.”

Good for constitutional NEG arguments.



6th Amendment basis for attorney-client privilege. TF.Hartman, Michael (2008). Yes, Martha Stewart Can Even Teach us About the

Constitution: Why Constitutional Considerations Warrant an Extension of the Attorney-Client Privilege in High-Profile Criminal Cases. University of Pennsylvania Journal of Constitutional Law.

By contrast, the Supreme Court has not had much occasion to pontificate on the correlation between the Sixth Amendment and the privilege, though former Chief Justice Rehnquist observed on one occasion that “the Sixth Amendment, of course, protects the confidentiality of communications between the accused and his attorney.” Other courts have weighed in on the matter, finding that Sixth Amendment rights are ensured by the privilege. For example, the Third Circuit, in United States v. Levy, explained: The fundamental justification for the Sixth Amendment right to counsel is the presumed inability of a defendant to make informed choices about the preparation and conduct of his defense. Free two-way communication between client and attorney is essential if the professional assistance guaranteed by the Sixth Amendment is to be meaningful. The purpose of the attorney-client privilege is inextricably linked to the very integrity and accuracy of the fact finding process itself. Other circuits have also expressly found a Sixth Amendment foundation for the attorney-client privilege. Accordingly, while it is not entirely settled, there appears to be ample support for the notion that the attorney-client privilege is indispensable to the right to effective counsel.

Good for constitutional NEG arguments.



Attorney-client privilege is key to upholding the reason a right to counsel is provided. AC.Gardner, James. “Re-Evaluation of the Attorney-Client Privilege (Part I).” Villanova Law

Review. 279 (1963). pp. 279-339.There is, however, another aspect of the matter, namely, the lawyer's duty to assist his client to have self-knowledge, so that the latter may discover his problems and enlighten himself as to the correct solution, to feel that he shares control with his lawyer and that they are together in victory or defeat. This sense of rapport is an important factor in the achievement of a feeling of individual justice under our adversary-type of judicial system. The creation of this sense of empathy and of unity will frequently represent counselling at its best, and no inconsiderable part of counsel's role will consist in counselling by indirection and cross-examination of the individual client.' Moreover, counsel is frequently faced with fluidity of the facts and tenuousness of the relationship in the early stages of the case. Here, the privilege is an important factor in helping the skilled counsellor to provide the client with the sense of security and confidence which will enable the lawyer and the client to work out the matter as a team in such a way that if individual justice cannot be made to prevail it will at least have had a fair chance. It is doubtful if the lawyer would have the necessary freedom and persuasiveness to handle the matter with the same skill and devotion, particularly in the case of the client with intense personal problems - with the accompanying state of emotional involvement - in the absence of a substantial amount of freedom from the threat of compulsory disclosure of at least that information which would tend to make the client look ridiculous, hurt his standing in the community, or seriously threaten his economic interests. Yet, it is in this area that the practice of law achieves its best results - by reason of the services offered to the individual client during times of difficulty, doubt, and emotional turmoil. If freedom from compulsory disclosure were not assured, the lawyer simply could not assume the role of counselor with the high degree of effectiveness that the achievement of justice requires and which generally obtains in the practice of law today.

The privilege prevents the state from infringing upon personal freedom. AC.Gardner, James. “Re-Evaluation of the Attorney-Client Privilege (Part I).” Villanova Law

Review. 279 (1963). pp. 279-339.There is the notion of a fair trial, with adequate representation. There is serious doubt as to whether this is possible unless there is freedom for the client and his attorney to prepare the case without the knowledge and interference of the state. In any event, it does not appear unreasonable that the state, with all its vast resources, should be required to prove its own case unaided by the almost subjective admissions of the individual in this important area of "interest in personality," where personal freedom may hang in the balance. As Professor McCormick has pointed out in connection with the privilege against self-incrimination, if the privilege were taken away, the lawyers in many instances would be hard put to make a fight worthy of a fee.' °4 Thus a man's right to his day in court would be seriously infringed.



The attorney-client privilege is an extension of the constitutional right against self-incrimination. AC.

Gardner, James. “Re-Evaluation of the Attorney-Client Privilege (Part I).” Villanova Law Review. 279 (1963). pp. 279-339.

There is a close connection between the privilege against self-incrimination and the attorney-client privilege in criminal cases.' 0 5 In fact, the latter is a logical extension of the former in the area of the criminal law. There are too many miscarriages of justice as it is without adding a restriction here.'06 Is not this privilege of having a confidential legal advisor just one of the pre- cautions which we should take in our effort to safeguard the liberty of the accused until he has been proven guilty? But above and beyond that, should we not allow the defendant, for reasons of his personal sense of security and fair play, the right to a trusted legal adviser whom he can use fully and freely and without fear that what he discloses to such adviser may be used against him? The writer believes that in choosing between competing values we should endeavor to preserve the privilege in its essential area, the face-to-face situation. In the area of the criminal law, the privilege of confidential communications between the client and his legal adviser should be recognized as a human value in a class with the privilege against self- incrimination, the privilege against illegal search and seizure, and the constitutional right to counsel.107 The protection of such a minimal right to security of personality as was recognized by the Supreme

Court in denying the state courts the power to act upon evidence obtained through the use of a stomach pump on the person of the defendant without his consent is a case in point.


Pro Counters


November/December 2013 Pro Counters: Utilitarianism and ACP

A2- Utilitarianism Justifies The Attorney-Client Privilege Utilitarianism can’t independently justify the attorney-client privilege. Looking to the moral

worth of the privilege is just as important. CFSThornburg, Elizabeth G., Sanctifying Secrecy: The Mythology of the Corporate Attorney-


Most purpose myths supporting the attorney-client privilege today are utilitarian ones. In other words, rather than claiming that the privilege is intrinsically good, these myths claim that the privilege furthers some other social policy. Also referred to as “instrumental” or “pragmatic” arguments, “a utilitarian argument takes the form that “X is good because it will bring about Y.” To be true, therefore, the utilitarian argument must convince the reader of two things: a moral judgment and a factual assumption. One must be convinced both that Y is good (the moral judgment) and that X will bring it about (the factual assumption) before the utilitarian argument can be convincing. In the case of the attorney-client privilege myths, however, the moral judgment is often unstated and the factual assumption is mythic rather than factual.

This would be strategic to read against utilitarianism affirmative cases or any affirmative case. It puts the burden on them to prove that not only is the attorney-client privilege good under a utilitarian framework but also under other moral frameworks.



November/December 2013 Pro Counters: Clients won’t communicate

A2- Clients Won’t Communicate With Attorneys Clients would continue to use lawyers and disclose information if the privilege was abolished

or not recognized. CFS Thornburg, Elizabeth G., Sanctifying Secrecy: The Mythology of the Corporate

Attorney-Client Privilege. Notre Dame Law Review, Vol. 69, p. 158, 1993-1994. Available at SSRN: http://ssrn.com/abstract=1006313

The first important empirical study appeared in the Yale Law journal in 1962. Its results showed widespread misinformation concerning privileges, especially the attorney-client privilege.” It also showed that lawyers were much more convinced than laypeople that the privilege encourages full disclosure. It appeared that laypeople, in deciding what to disclose, were more influenced by the nature of the profession and the services to be provided, than by the existence of a privilege. For example, laypeople expressed more willingness to speak with divorce lawyers, even without the protection of a privilege, than with marriage counselors.” The Yale study concluded that while survey participants preferred nondisclosure rules, a substantial majority of laypeople would continue to use lawyers even if secrecy were limited. This leaves open the possibility of a marginal increase in candor based on the privilege, but it does not support a belief that the privilege is a major factor in a client’s decision to disclose information.



November/December 2013 Pro Counters: Clients won’t communicate

More Attorney-Client trust and communication is insufficient to defend the attorney-client privilege. AC.

Levine, Henry. “Self-Interest or Self-Defense: Lawyer Disregard of the Attorney-Client Privilege for Profit and Protection.” Hofstra Law Review. Vol. 783 (1976-1977). pp. 783-830

An exception to the attorney-client privilege permits an attorney to reveal otherwise protected confidences when necessary to protect his own interest. It is traditionally invoked by lawyers suing (or being sued by) former clients.

Beginning in the late 1800's scores of American cases have held that, in the proper circumstances, a lawyer may reveal privileged communications with his clients when necessary to protect his own interest. With some few exceptions40 "proper circumstances" have been found only:

When the attorney is suing to collect his fee;"

2) When the client is suing the attorney for malpractice;

3) When, in a lawsuit to which the attorney is not party, a client or former client attacks his competence or integrity.

Most of the recent cases in the third category involve attacks on the competence of counsel made by criminal defendants in the course of motions for a new trial or petitions for post conviction relief.

This is not an independent argument to carry through, but it reminds us that there is more to the privilege than just for trust and faith. If such exceptions exist, the primary purpose of the attorney-client privilege is not for establishing trust and faith between the attorney and the client. There are also personal interests of the attorneys (who profit from the clients) and of the clients (who are in court for a criminal charge).


November/December 2013 Pro Counters: Unlikely to withhold info

A2- The Privilege Makes Clients Unlikely To Withhold Information

Clients will still withhold relevant information even under the privilege. CFSThornburg, Elizabeth G., Sanctifying Secrecy: The Mythology of the Corporate Attorney-


Another privilege study was conducted in Tompkins County, Iowa, in the 1980’s. Its author concluded that clients routinely misunderstand or are not aware of the scope of the privilege, and thus base their decisions about disclosure on the need for assistance, rather than on protection from disclosure. Further, 11.3 percent of those clients surveyed admitted to withholding information from their attorneys even under the current confidentiality rules, supporting an inference that privilege rules are not determinative factor for client disclosure. The survey’s therefore concluded that the critics of strict confidentiality are right to demand further empirical evaluation of the rules.



November/December 2013 Pro Counters: Confidentiality

A2- Confidentiality Helps Communications The attorneys are more concerned with confidentiality than the clients are which proves that

confidentiality does not help communications. CFSThornburg, Elizabeth G., Sanctifying Secrecy: The Mythology of the Corporate Attorney-


Two other studies focused on the privilege in the corporate context. A study performed by students at the University of Iowa Law School supported the Yale study’s conclusion that the privilege was of more concern to lawyers than to clients. For example, while 69.3 percent of corporate attorneys reported that at some time they had raised confidentiality issues when interviewing corporate employees, employees showed concern over whether their communications would remain confidential only 28.8 percent of the time, with no statistically significant association between the attorney’s raising the issue and the employee’s concern. The issue of confidentiality was thought most likely to be raised when litigation was likely or when the communication would most probably be disclosed if later sought through discovery. This could be because absent litigation, no one asks for the information and compelled disclosure becomes a non-issue. It could also be because confidentiality is raised not to encourage communication, but to bolster a later claim of privilege from discovery.



November/December 2013 Pro Counters: Empirical Studies

A2- Empirical Studies The majority of studies are flawed because lawyers have an incentive to exaggerate about the

privilege. CFSThornburg, Elizabeth G., Sanctifying Secrecy: The Mythology of the Corporate Attorney-


All of these surveys share a common, but probably inevitable, methodological flaw. All are based on questions asked of lawyers and their clients or potential clients: people with a personal stake in the preservation of the privilege. As one survey’s author forth-rightly noted, “The findings . . . do not directly measure the effect of the corporate attorney-client privilege; they measure only the respondents’ feelings about the matter. One may reasonably suspect, therefore, that the role of the privilege as an incentive to candor was exaggerated by the participants.”

The attorney-client privilege is not correlated to better investigations or truth-finding. CFSThornburg, Elizabeth G., Sanctifying Secrecy: The Mythology of the Corporate Attorney-


The link between the attorney-client privilege and the quality and thoroughness of the lawyer’s investigation and advice is simply not present. The legal profession provides too many other incentives for accuracy and completeness. Even without a privilege, corporate attorneys would still seek all possible information because there is no clear line between learning helpful facts and harmful facts. They cannot operate in ignorance and yet hope to function adequately. Although they would prefer to communicate in secret, attorneys would not cease to investigate if that secrecy were removed because too many forces require full and accurate information.




November/December 2013 Pro Counters: Letting guilty go free

A2- Attorney Client Privilege Allows More People To Go Free

This turn is tricky. You just accept their claim and warrant and then say but...

Attorney-Client Privilege Applies to Terrorists. This is especially true if you negate because truth seeking will no longer be the most important part of trials involving terrorists and

attorney-client privilege will have to be given. BPG Paul R. Rice and Benjamin Parlin Saul, 2002. “Is the War on Terrorism a War on

Attorney-Client Privilege?”http://www.americanbar.org/publications/ criminal_justice_magazine_home/crimjust_cjmag_17_2_privilege.html.

The suspected terrorists affected by the order are, for the most part, not U.S. citizens. Noncitizens may only claim a constitutional violation through the seizure of confidential attorney-client communications when such aliens are within the geographical boundaries of the United States. ( See Zadydas v. Davis, 121 S. Ct. 2491, 2501 (2001) ("It is well established that certain constitutional protections available to persons inside the United States are unavailable to aliens outside of our geographic borders . . . . But once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.").) Suspected inmates held in Cuba, as a result, enjoy no rights under the U.S. Constitution. A violation of their confidential attorney-client communications carries no constitutional implications, direct or indirect. Legally, therefore, the procedural process due aliens held in Cuba remains limited to that which international agreement requires. Because no international treaty or other agreement guarantees the right of a client to consult, in confidence, with an attorney, our government need not legally afford suspects detained in Cuba both this right or any other liberty set forth in our Bill of Rights. Legal obligation, however, neither does nor shoulddefine the limits of what rights we afford noncitizens against whom our government may initiate criminal proceedings. We afford ourselves, as citizens, certain constitutional protections against our government when it accuses us of criminal conduct. We insist that those rights be afforded because we believe they underpin the fair adjudication of guilt in our adversarial system. Throughout our national history, we have repeatedly recognized that maintaining the perception of fairness is as important as fairness itself. Only through preservation of fairness and the perception of fairness will our system of justice command respect. An adjudicatory system without the respect of the people cannot succeed. If our government truly believes that the rights created for its people are fundamental, how can we refuse to extend them to suspected noncitizen inmates? We should afford the accused nothing less than what we believe is needed for the fair adjudication of guilt. Does destroying


http://www.americanbar.org/publications/%20criminal_justice_magazine_home/crimjust_cjmag_17_2_privilege.html

http://www.americanbar.org/publications/%20criminal_justice_magazine_home/crimjust_cjmag_17_2_privilege.html

November/December 2013 Pro Counters: Letting guilty go freeconfidentiality destroy the privilege? Confidentiality, defined as secrecy, has been the hallmark of the attorney-client privilege. It encourages defendants to communicate openly with their attorneys, and open communication, in turn, provides legal counsel with the most complete understanding of the events giving rise to the prosecution. This understanding enables counsel to provide the most appropriate legal assistance. As long as the confidentiality of each communication is preserved, the privilege continues to protect all past communications.

…

The Supreme Court has never ruled on the specific issue of whether the attorney-client privilege may be violated in the name of national security. The Court’s broader precedent concerning the proper score of executive power in the national security context also remains unclear. ( Compare United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936) (asserting executive preeminence in national security affairs), with Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579, 585 (1952) (Jackson, J., concurring) (advocating a more balanced approach to the exercise of national security power, based on sharing among coordinate branches).) From the Court’s decisions over the past century, we can determine that the president and the executive branch possess inherent national security power. Such constitutional authority, moreover, remains greater in national security affairs than in the domestic arena. It also appears certain that the president’s and the executive branch’s national security power should be checked, at least in part, by that of Congress. National security cases arise infrequently and, when they do, courts tend to evaluate them on a case-by-case basis, examining the nature of the emergency and the extent to which Congress supported the executive action.

…

In the context of military tribunals, the convening authority determines the rules of evidence it will follow. Such rules need not be in accord with the Federal Rules of Evidence, and civilian courts lack the power to review either the rules or the decisions under them. ( See In re Yamashita, 327 U.S. 1, 22–23 (1946).) President George W. Bush’s military order establishing the tribunals sets forth a broad standard for admissible evidence, calling for "admission of such evidence as would, in the opinion of the presiding officer of the military commission . . . have probative value to a reasonable person . . . ." (Exec. Order, Detention, Treatment, and Trial of Certain Non-citizens in the War Against Terrorism, 66 Fed. Reg. 57,833 (Nov. 13, 2001).) Given both the Court’s jurisprudence in this area and the wording of the president’s order, military tribunals appear free to establish evidence rules that would allow for the admission of information obtained by monitoring inmates under Attorney General Ashcroft’s order to be used in prosecution of those same individuals.

Military tribunals, however, might elect to follow the Federal Rules of Evidence and the common law attorney-client privilege incorporated in those rules. Certainly, adopting such rules would help to create both the reality and the perception of fairness. This article continues under the assumption that military tribunals will follow the Federal Rules of Evidence and the common law of attorney-client privilege. Proceeding with such an operating assumption allows us to discuss, simultaneously, the manner in which both military tribunals


November/December 2013 Pro Counters: Letting guilty go freeand civilian criminal courts might rule on the admissibility of information obtained under Attorney General Ashcroft’s order.

As suggested throughout this article, the evidentiary consequences if the government violates the sanctity of each defendant’s attorney-client relationship remain unclear. For example, what if the government offers into evidence a tape recording of a defendant’s confession to his lawyer? What if the government offers into evidence statements seized in bugged attorney-client communications of one suspect against another? When the government offers evidence acquired from leads obtained through the bugging and if the court refuses to admit evidence directly obtained, will the court apply a derivative exclusionary rule, compelling the government to establish that the other evidence is "clean"—that is, not the product of questionable seizures?

This first card is tricky because even if they disprove that attorney client privilege applies to terrorists in the status quo, just say well if you negate that means that since truth isn’t important anymore in those trials, attorney-client privilege will be given. Second, there are international and national terrorists! So even if they prove that it doesn’t follow that we give rights to international citizens, that just means there are still national terrorists that get attorney-client privilege Right after this card you should extend their evidence about how attorney-client privilege helps people go free.


Con Counters


November/December 2013 Con Counters: Purpose is truth?

A2 Role Of The Criminal Justice System is To Find Truth

The type of truth that overrides the attorney-client privilege is not one we should endorse. BPG.

Martin McLaughlin, 1998. “Starr seeks overturn of attorney-client privilege.” http://www.wsws.org/en/articles/1998/06/clin-j09.html.

In his brief to the Supreme Court, Starr argued that attorney-client privileges "obstruct the search for truth," and therefore should be set aside. He claimed that clients would not care what happened after they were dead, and only witnesses who had committed perjury would be reluctant to have their confidential attorney-client discussions made public.

A common thread that runs throughout Starr's investigation is the practice of imputing criminal motives to anyone who stands in his way. In fact, there are a multitude of reasons for desiring confidentiality in an attorney-client discussion. Only in the rarest of cases does this involve a desire to conceal an illegal act. Whether for reasons of business, family concerns or simple privacy, a person consulting a lawyer may wish to keep information confidential not only during his lifetime, but afterwards.

To compel an attorney to divulge the contents of conversations after a client's death would have a profoundly chilling effect on what clients were willing to discuss with legal counsel. It would severely hamper the process of obtaining candid legal advice, impeding the effort of individuals to defend themselves or press legitimate legal claims.

Moreover, once the attorney-client privilege has been breached after death, what is to stop courts and prosecutors from breaching it before death? If the "search for truth" takes precedence over confidentiality, why wait until after a potentially critical witness dies? Starr is already acting on this principle, by subpoenaing Clinton's lawyers, such as Deputy White House Counsel Bruce Lindsey, and demanding that they testify about confidential discussions with the president.

Starr has taken the position that the attorneys for those targeted by his investigation are responsible, not to their clients, but to "the truth." This seemingly high-minded rhetoric is utterly hypocritical--all the more so in light of Starr's role as a long-time attorney for the American tobacco industry and other lucrative corporate clients. It is, moreover, fundamentally antidemocratic.


http://www.wsws.org/en/articles/1998/06/clin-j09.html

November/December 2013 Con Counters: Purpose is truth?In a legal system based on due process, truth is not a monopoly of the prosecution, but emerges out of an adversary proceeding in which the defendant is entitled to vigorous independent representation. The assertions of the prosecution are not assumed to be the truth. On the contrary, the defendant is presumed innocent until proven guilty ("beyond a reasonable doubt" in criminal cases) and convicted by a judge or jury.

Starr's formula for "the truth" is essentially that employed in inquisitions. The so-called truth is predetermined, and the task of the inquisitor is to extract, by one means or another, testimony or evidence that supports his version of events.

Starr's claim that only someone guilty of perjury would insist on the attorney-client privilege is typical of right-wing attacks on due process. According to this view, such legal protections as Miranda rights, search warrants and the privilege against self-incrimination are only of value to criminals. There is an echo here of the red-baiting of the 1950s, when McCarthy and other congressional witch-hunters declared that to take the Fifth Amendment was proof of guilt.

This line of argument would apply equally well to any procedural restraint on the powers of the police and prosecutors. It is essentially a demand for the scrapping of all restrictions on the power of the state to extract information, and amounts to a major breach of the right to privacy.

Truth should not be forced out of individuals. This would deny them from keeping things secret personal information they do not want their families or others to now; people do not only conceal truth to hide crimes that they commit. Further, enforcing an absolute truth would allow the state to do whatever it wanted in the name of “seeking truth.”

Searching For Truth Makes No Sense in the Criminal Justice System. BPGAlan Dershowitz, 2005. “Is The Criminal Trial A Search For

Truth?”http://www.pbs.org/wgbh/pages/frontline/oj/highlights/dershowitz.html. If the only goal of the adversary system were to find "the truth" in every case, then it would be relatively simple to achieve. Suspects could be tortured, their families threatened, homes randomly searched, and lie detector tests routinely administered. Indeed, in order to facilitate this search for truth, we could all be subjected to a regimen of random blood and urine tests, and every public building and workplace could be outfitted with surveillance cameras. If these methods -- common in totalitarian countries -- are objected to on the ground that torture and threats sometimes produce false accusations, that objection could be overcome by requiring that all confessions induced by torture or threats must be independently corroborated. We would still never tolerate such a single-minded search for truth, nor would our constitution, because we believe that the ends -- even an end as noble as truth -- do not justify every possible means. Our


http://www.pbs.org/wgbh/pages/frontline/oj/highlights/dershowitz.html

November/December 2013 Con Counters: Purpose is truth?system of justice thus reflects a balance among often inconsistent goals, which include truth, privacy, fairness, finality, and equality.

If we value truth above all else then the government could justify using totalitarian means to get the truth out of its citizens.

There Are Multiple Types of Truth in the Criminal Justice System. BPGAlan Dershowitz, 2005. “Is The Criminal Trial A Search For

Truth?”http://www.pbs.org/wgbh/pages/frontline/oj/highlights/dershowitz.html.

Even "truth" is a far more complex goal than may appear at first blush. There are different kinds of truth at work in our adversary system. At the most basic level, there is the ultimate truth involved in the particular case: "Did he do it?" Then there is the truth produced by cases over time, which may be in sharp conflict. For example, the lawyer-client privilege -- which shields certain confidential communications from being disclosed -- may generate more truth over the long run by encouraging clients to be candid with their lawyers. But in any given case, this same privilege may thwart the ultimate truth -- as in the rare case where a defendant confides in his lawyer that he did it. The same is true of other privileges, ranging from the privilege against self-incrimination to rape shield laws, which prevent an accused rapist from introducing the prior sexual history of his accuser.

Even in an individual case, there are different types -- or layers -- of truth. The defendant may have done it -- ultimate truth! -- but the police may have lied in securing the search warrant. Or the police may even have planted evidence against guilty defendants, as New York state troopers were recently convicted of doing, and as some jurors believed the police did in the Simpson case.

The Anglo-American criminal trial employs the adversary system to resolve disputes. This system, under which each side tries to win by all legal and ethical means, may be conducive to truth in the long run, but it does not always produce truth in a given case. Nor is it widely understood or accepted by the public.

There are multiple types of truth within the criminal justice system and thus it makes no sense to say “truth-seeking” in general is the more important than anything else.

Cross-examination is the best tool for truth-seeking – violating attorney-client privilege not necessary. TF.

Lininger, Tom (2005). Bearing the Cross. Fordham Law Review, 74 (3).American legal culture seems to revere cross-examination.' According to Wigmore, cross-examination is our greatest invention for truth seeking. Cross-examination is the purest expression of our adversarial process. It is


http://www.pbs.org/wgbh/pages/frontline/oj/highlights/dershowitz.html

November/December 2013 Con Counters: Purpose is truth?the highlight of the trial for both jurors and lawyers. It is the moment in litigation when the best lawyers distinguish themselves. Many theorists believe that a lawyer's highest ethical duty is to cross-examine zealously.

Presents alternative to affirmative actions.

A trial is not always about guilt or innocence; there are other complexities involved that increases the importance of the privilege. AC.


Bentham’s argument against the privilege, in short, was that deterring a guilty client from seeking legal advice was not cause for concern, while an innocent client had nothing to fear if the privilege were not available, and thus would not be deterred. Wigmore exposed both the naivete and the flawed premises underlying Bentham’s argument. First, Wigmore observed that (even in the relatively simpler times in which he wrote), “[t]here is in civil cases often no hard-and-fast line between guilt and innocence,” and in many cases neither party will be completely in the right or completely in the wrong in moral sense. Wigmore made the case that in actual practice, unlike in Bentham’s abstract argument, the reality of the legal system is much more complex, and the costs of depriving one party of confidential legal advice are higher, than Bentham’s argument would suggest.


November/December 2013 Con Counters: Purpose is truth?

Truth is important to the Criminal Justice System, but it is not the most important value. BPG

Daniel Walfish, 2004 “Making Lawyers Responsible for the Truth: The Influence of Marvin Frankel’s Proposal for Reforming the Adversary System.” Seton Hall University. http://law.shu.edu/Students/academics/journals/law-review/Issues/archives/upload/Walfish.pdf.

Many of the articles on the perjury dilemma and the duty of confidentiality briefly cite Frankel’s The Search for Truth (and his book Partisan Justice, which grew out of the article) for the proposition that adversary combat may not be the most effective means of arriving at the truth. Indeed, the tension between the lawyer’s duty of confidentiality to the client and the lawyer’s duty of candor to the court came to be known as the Freedman–Frankel debate. Very few of these articles, however, advocate implementing Frankel’s proposals or seriously address the issue of a lawyer’s responsibility for truth in an adversarial system...

One strand of argument against Frankel’s proposals rejects the idea that truth should be accorded a higher priority in an adversary trial. This position has been argued most forcefully by Monroe Freedman, but others have made similar points. Freedman, in a response that was published alongside Frankel’s article, argued that the American legal system serves other values, like the promotion of individual dignity, in addition to truth. Serving individual dignity, Freedman contended, might sometimes require subordinating—and hence, distorting—truth. One example is the constitutional privilege against self-incrimination. Freedman quoted United States Supreme Court justices who have supported defense attorneys’ obligation to defend clients vigorously, regardless of whether they are guilty. None of the quoted passages explain why this duty exists or what makes it more important than truth, but Freedman offered the following explanation: “Before we will permit the state to deprive any person of life, liberty, or property, we require that certain processes which ensure regard for the dignity of the individual be followed, irrespective of their impact on the determination of truth.”


http://law.shu.edu/Students/academics/journals/law-review/Issues/archives/upload/Walfish.pdf

http://law.shu.edu/Students/academics/journals/law-review/Issues/archives/upload/Walfish.pdf

November/December 2013 Con Counters: ACP abuse

A2 The Attorney-Client Privilege May be Abused Different checks on the privilege have been put over time. AC.


Four important checks on abuse and unwarranted assertion of the privilege are discussed below. The most important is the “crime-fraud exception” to the attorney-client privilege, which ensures that the confidentiality otherwise provided by the privilege does not protect communications that are misused to further an ongoing or future crime or fraud. Another important checks on improper assertion of privilege or work product protection is the law of waiver, which has developed in such a way as to protect against unwarranted assertions of privilege or work product protection. Finally, the work product doctrine, from its inception in the Supreme Court’s Hickman decision to the present day, has featured built-in protections against unwarranted withholding of information. All of these limitations, working together, are sufficient to ensure that in cases where law enforcement has a legitimate need for information, and the policy interests underlying the privilege and the work product doctrine would not be served confidentiality, the information will be made available to law enforcement.

The work product doctrine is present in American civil procedure and protects any material prepared for a litigation—including documents, statements, information, briefs, opinions, legal theories, and more—from being discovered. Although this doctrine protects much more information than does the attorney-client privilege, the work product doctrine is more readily revoked because it only takes the opposing party to show that demanding the information from the other attorney would be the only way to obtain that information, which must also be proven to be crucial to the case.


November/December 2013 Con Counters: Utilitarianism

A2 Utilitarianism Affirmative Utilitarianism justifies preserving attorney-client privilege. TF.


Another prominent criticism of Judge Kaplan's opinion focuses on a utilitarian view of the privilege, arguing that In re Grand Jury Subpoenas creates a result contrary to the privilege's historical justifications. Because extension to public relations consultants does not further any of these “historical justifications,” such an extension is an improper liberalization of evidentiary privileges. Deborah Bartel has explained the basis of the utilitarian justification: Wigmore formulated the classic utilitarian balancing test to justify preserving the confidentiality of client communications to lawyers: the injury to the attorney-client relationship by the disclosure of the communication must be greater than the benefit that would be gained thereby for the correct disposal of the litigation. Utilitarians maintain the attorney-client privilege exists to protect a relationship that is a mainstay of our system of justice: lawyer and client. The privilege is vital to encouraging full and frank communication between clients and legal advisors and to promoting the efficient administration of justice. Those in opposition to an extension of the privilege to public relations consultants frequently argue that such an extension does not satisfy the Wigmore balancing test described by Bartel. In the absence of the privilege for public relations firms, the argument goes, a client will not be any less likely to disclose all of the relevant facts and information needed by an attorney to provide effective counsel. Thus, no overwhelming benefits exist that outweigh the obstruction of the court's search for “truth.”

Utilitarianism turn against affirmatives.


November/December 2013 Con Counters: Work-Product Doctrine

A2 Work-Product Doctrine as Alternative Work-Product Doctrine practice on the decline. TF.

Hinson, Douglas (2011). Can You Keep A Secret? Attorney-Client Privilege and the Work-Product Doctrine in the ERISA/Fiduciary Context. Benefits Practice Resource Center (BNA).

In contrast to the attorney-client privilege, the work product doctrine is not absolute. Under Rule 26(b)(3), discovery of work-product materials is permitted when the party seeking such discovery ‘‘shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.’’ This standard, however, applies only to ‘‘fact ’’ work-product materials. Rule 26(b)(3) also provides that discovery of the ‘‘mental impressions, conclusions, opinions, or legal theories of an attorney,’’ denominated ‘‘core’’ or ‘‘opinion’’ work product, is accorded a higher standard of protection. Opinion work product enjoys a nearly absolute immunity and can be discovered only in very rare and extraordinary circumstances. Work-product privilege may be waived by disclosure to adversaries, or to a third party. However, ‘‘the work product privilege is not necessarily waived by disclosure to any third party; rather, ‘the courts generally find a waiver of the work-product privilege only if the disclosure substantially increases the opportunity for potential adversaries to obtain the information.”

Read first as shorter argument.

Fiduciary Exception weakens work-product doctrine. TF.Hinson, Douglas (2011). Can You Keep A Secret? Attorney-Client Privilege and the

Work-Product Doctrine in the ERISA/Fiduciary Context. Benefits Practice Resource Center (BNA).

In light of the different policy concerns underpinning the work-product doctrine and the attorney-client privilege, most courts have declined to extend the fiduciary exception to work-product claims. For example, in rejecting application of the exception to work product, the Donovan court stated: The fiduciary exception carved out in Garner, however, does not translate so easily into the context of the work-product immunity. Unlike the attorney-client privilege, the right to assert the work-product barrier to disclosure belongs at least in part, if not solely, to the attorney and not the client. More to the point, the two privileges address different concerns. Not only does the work-product doctrine serve to protect the confidentiality in the attorney-client relationship, but it also protects the attorney from undue and unfair disclosure. . . . The court went on to observe that because ‘‘beneficiaries . . . do not stand in the same position with respect to the attorney, for whom the work-product rule is designed to benefit, as they do to their own trustees . . . ,’’ the fiduciary exception cannot be readily applied to defeat the work-product doctrine. Furthermore, in order for legal advice to be eligible for the work-product doctrine, it must be rendered ‘‘for the principal purpose of assisting in anticipated or pending litigation.’’ Accordingly, such advice would not generally relate to the administration of the ongoing


November/December 2013 Con Counters: Work-Product DoctrineERISA plan. Thus, it would appear that the communications protected by the attorney work-product doctrine would not be subject to the fiduciary exception to the attorney-client privilege. However, the Fourth Circuit recently held that the ERISA context differs from the corporate context and, therefore, there is no legitimate basis on which to distinguish between the two privileges in the application of the fiduciary exception in the ERISA context.

Longer argument if time permits.


Contentions


November/December 2013 Pro Contentions

Pro Case

Introduction:This case begins by introducing the framework, starting with the value criterion pair and then several relevant definitions. This is a fairly straightforward case that presents a framework that is logically sound and thus will likely stand, so the way this wins/loses is in how well you refute your opponent’s framework and support your contentions. This is a very ethos-driven case, and when running it you shouldn’t be afraid to employ borderline-histrionic verbal play and take the moral high ground by constantly referring to notions of ideal justice, our founding fathers, etc.

“Truth never damages a cause that is just.” Hello, my name is _____, and it is because I agree with Mahatma Gandhi that I affirm today’s resolution, resolved: In the United States criminal justice system, truth-seeking ought to take precedence over attorney-client privilege.

In the United States criminal justice system, we have an axiom that defines all accused to be “innocent until proven guilty.” This points out a fundamental value of our criminal justice system: the distinction between the innocent and the guilty. As I will go on to prove in this case, this distinction can be most correctly found only if we affirm the resolution and seek the truth. Thus, justice in our criminal justice system must be derived from the truth, and justice shall serve as my value. Since a primary component of justice in the United States criminal justice system is the protection of innocents, this shall serve as my value criterion.

Definition of terms:Definition of ought“Ought.” Merriam-Webster.com. Merriam-Webster, n.d. Web. 13 Oct. 2013. <http://www.merriam-webster.com/dictionary/ought>Used to express obligation, advisability, natural expectation, or logical consequence.

Definition of precedence“Precedence.” Merriam-Webster.com. Merriam-Webster, n.d. Web. 13 Oct. 2013. <http://www.merriam-webster.com/dictionary/ought>The condition of being more important than something or someone else and therefore coming or being dealt with first.

It is important to acknowledge that with this definition of precedence, I am not arguing today to completely do away with attorney-client privilege, simply that when it restricts the truth to the point of a fallacy of justice, it must be limited and truth-seeking must come first.

Truth-seeking spans a range of activities.International Center for Transitional Justice (2013). Truth and Memory.


November/December 2013 Pro ContentionsRepressive regimes deliberately rewrite history and deny atrocities to legitimize themselves. Truth-seeking contributes to the creation of a historical record that prevents this kind of manipulation. It can help victims find closure by learning more about the events they suffered, such as the fate of disappeared individuals, or why certain people were targeted for abuse. Truth-seeking initiatives take many forms—including freedom of information legislation, declassification of archives, investigations into the missing and disappeared—and the establishment of non-judicial commissions of inquiry, including truth commissions.

Contention One: Truth-seeking is necessary for true justice.Truth is Extremely Important.

Thomas Weigend, 2011. “Should We Search for the Truth, and Who Should Do it?” Archives of University of North Carolina Law School. http://www.law.unc.edu/components/handlers/document.ashx?category=24&subcategory=52&cid=978.

None of the potential purposes of the criminal process can be reached unless the judgment has been based on a search for the truth. To reach any of its goals, the process must reflect an honest effort to determine what “really” happened. The truth evidently needs to be sought when “finding the truth” or achieving “truth and justice” are the declared goals of the criminal process. However, a successful restoration of “social peace” likewise presupposes that the relevant facts have plausibly been established; society cannot close the file on a disturbing incident unless convincing factual findings have been made by an agency with authority to do so. The importance of finding the “true” facts is demonstrated by the successful operation of Truth and Reconciliation Commissions5 and similar institutions. In order to achieve closure on traumatic events, it seems more important to determine and make public what actually happened than to impose criminal sanctions.

Attorney-client privilege hinders truth seeking.

Chatterton, Marcus (2007). How Innocent Are You?: The Intersection of Privileged Communications and the Actual Innocence Exception in Federal Habeas Corpus. Alabama Law Review, 58 (4).

“The attorney-client privilege is one of the oldest recognized privileges for confidential communications.” Its oft-cited purpose is “to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.” The common law notion of privileges applies with full force to the federal courts through Federal Rule of Evidence 501. Since Congress has explicitly opted to retain a common law approach to privileges, it is within the province of the federal courts to “continue the evolutionary development of testimonial privileges” in areas under their jurisdiction in light of their “reason and experience.” The very existence of the attorney-client privilege represents a conscious balancing of two competing interests—the search for truth and the desire to foster positive attorney-client interaction. But, because the privilege does act to withhold truth from the finder


November/December 2013 Pro Contentionsof fact, it is proverbially held to apply only where necessary to advance the right to counsel. Nevertheless, the general applicability of the attorney-client privilege is both uncontroversial and ubiquitous—it is beyond cavil that the privilege attaches to communications between a criminal defendant and his trial and remains in full force almost indefinitely. Thus, a habeas petitioner, like all other litigants, generally has the “right to refuse to disclose and to prevent any other person from disclosing confidential communications between the [petitioner] and the attorney” before, during, and well after the pendency of his claim.

Contention Two: The protection of innocents is of utmost importance in our criminal justice system.

Truth-Seeking Protects Innocents.Wu Shan-Shan, China University of Political Science and Law, 2012, “The Search for Truth in Criminal Process,” University of Arizona. <http://www.cesl.edu.cn/upload/201209206168631.pdf>Although the Anglo-American system concentrates more on conflict-resolution, it still has to satisfy the basic or minimum needs about fairness and justice. None of the potential purposes of the criminal process can be reached unless the judgment has been based on a search for the truth.3 The determination of truth is indispensable for yet another reason—criminal sanctions are society’s most severe expression of moral blame. It is therefore imperative that criminal sanctions be imposed upon those who are in fact guilty. It is a protection of the innocence and litigant in criminal process.4

Not valuing truth leads to false convictions.Keith A. Findley, 2011 “Adversarial Inquisitions: Rethinking the Search for the Truth”; New York Law School Law Review. http://www.nylslawreview.com/wordpress/wp-content/uploads/2012/02/Findley-article.pdf.

The current American system is marked by an adversary process so compromised by imbalance between the parties—in terms of resources and access to evidence—that true adversary testing is virtually impossible. It is a system in which competing litigants, unequal as they are, control everything from the investigation to presentation of the evidence, and in which their motivation in that process is to win, more than to discover the truth. So motivated, litigants coach witnesses, suppress facts, employ tricks and surprises, distort the truth, and manipulate fact finders. The result is a system that we now know, through the growing record of wrongful convictions, is prone to an unacceptably high rate of false convictions, as well as failures to convict the guilty.


November/December 2013 Pro Contentions

Contention Three: When attorney-client privilege leads to the conviction of innocents, it must be subject to the higher value of truth-

seeking.Example of Attorney Client Privilege Covering Up a Wrongful ConvictionJoy, Peter. “Confidentiality and Wrongful Conviction.” Summer 2008. Criminal Justice. (pg 46)Iton Logan has been in prison 26 years for the shotgun murder of Lloyd Wickliffe, a crime Logan maintains he did not commit. It is not DNA evidence that may free Logan, though, but the words of a man who claimed to be the actual killer, Andrew Wilson. Andrew Wilson's public defenders recently demonstrated that in 1982 Wilson admitted killing Wickliffe. When police arrested Wilson for killing two police officers they found a shotgun linked to a shell at the scene of Wickliffe's murder. But police had already arrested Logan and another man, Edgar Hope, for Wickliffe's murder based on eyewitness identification, so the police did not charge Wilson for Wickliffe's murder. Logan's codefendant, Hope, however, told his attorney that Logan was not involved in the murder, and that Wilson was the actual shooter. Hope's attorney gave this information to Wilson's lawyers, who confronted Wilson with Hope's statement. Wilson nodded and said, "That was me." Wilson's lawyers then faced a classic ethical dilemma. What may a lawyer do when a client admits to a crime for which another has been charged? Wilson's lawyers concluded that client confidentiality bound them to silence, but they obtained their client's consent to reveal the information after his death. Wilson's lawyers also drew up an affidavit that confirmed that they "obtained information through privileged sources that a man named Alton Logan who was charged in the fatal shooting of Lloyd Wickliffe and is in fact not responsible for that shooting." They placed the affidavit in a sealed envelope in a metal box in 1982, believing that revelation at a later date would be more credible if supported by the affidavit. They released the affidavit after their client's death earlier this year.

As we can see, such an example proves the flawed justice that arises from negating the resolution. This is an unacceptable misapplication of justice, and if the United States criminal justice fails to uphold the truth and focuses explicitly on attorney-client privilege, this trend could continue down a slippery slope. The only way to remedy such wrongful convictions, protect the sanctity of our criminal justice system, and ultimately maintain justice, is to affirm the resolution.


November/December 2013 Con Contentions

Con Case

Introduction:This case is going to be about how promises generate special moral obligations that must be held. This case will focus mainly on how this means that the constitution must be upheld because it acts as a promise between the people and the government.

What is great about this case is that even though they might respond that it is not constitutionally necessary to have attorney-client privilege, it does not mean that there is a constitutional obligation to not have the attorney-client privilege. This, means it is incredibly hard to turn the NC or to affirm based upon the framework set up in the NC.

Framework:The value is justice as defined as giving each their due.

You really should just switch the value from justice to morality depending on what the AFF says. The Hart card’s justifications apply to both morality and justice.

And, promises generate special obligations that operate on a prior level to all other rights and duties.

H.L.A. Hart, 1955. “Are There Any Natural Rights?” The Philosophical Review, Vol. 64, No. 2, pp. 175-191. Duke University Press.

The most obvious cases of special rights are those that arise from promises. By promising to do or not to do something, we voluntarily incur obligations and create or confer rights on those to whom we promise; we alter the existing moral independence of the parties' freedom of choice in relation to some action and create a new moral relationship between them, so that it becomes morally legitimate for the person to whom the promise is given to determine how the promisor shall act. The promisee has a temporary authority or sovereignty in relation to some specific matter over the other's will which we express by saying that the promisor is under an obligation to the promisee to do what he has promised. To some philosophers the notion that moral phenomena-rights and duties or obligations-can be brought into existence by the voluntary action of individuals has appeared utterly mysterious; but this I think has been so because they have not clearly seen how special the moral notions of a right and an obligation are, nor how peculiarly they are connected with the distribution of freedom of choice; it would indeed be mysterious if we could make actions morally good or bad by voluntary choice. The simplest case of promising illustrates two points characteristic of all special rights: (i) the right and obligation arise not because the promised action has itself any particular moral quality, but just because of the voluntary transaction between the parties.


November/December 2013 Con Contentions [If their value is justice]: You will probably want to do some extra work here explaining why even though Hart talks in terms of morality this still applies to justice. For example, “Promises act as a transferal of rights from one person to another; thus, by promising to do something for someone you are giving up your own rights in favor of doing something for someone else. Justice dictates that you give that person what is due to them and must therefore uphold your promise.”

Thus, the value criterion is upholding promising.

Contention One:The attorney-client privilege operates as a promise between the lawyer and the client and thus cannot be broken for any reason. The client assumes that this relationship is going to be upheld, and the lawyer tacitly agrees to by agreeing to represent the client. We can see this in the definition of the attorney-client privilege.

Stephen Forte, 2003. "What the Attorney-Client Privilege Really Means." 2003. http://www.sgrlaw.com/resources/trust_the_leaders/leaders_issues/ttl5/916/.

Although there is no single authority on the attorney-client privilege, it has been defined as follows: "(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his [or her] capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his [or her] instance permanently protected (7) from disclosure by [the client] or by the legal adviser, (8) except the protection be waived."8

This is not your best contention but it is a great red herring, a little bit confusing and time consuming to answer. I would recommend most rounds to only try to extend contentions two or three unless your opponent really mishandles this argument.

Contention Two:The constitution acts as a promise between the people and the government, spelling out what the government can and cannot due towards the people. The people only chose to be controlled by the government so long as the government follows the democratically chosen rules. Thus, if removing the attorney-client privilege violates the constitution, then a promise is being broken.

The 5th Amendment provides basis for attorney-client privilege.

Hartman, Michael (2008). Yes, Martha Stewart Can Even Teach us About the Constitution: Why Constitutional Considerations Warrant an Extension of the




November/December 2013 Con Contentions

Attorney-Client Privilege in High-Profile Criminal Cases. University of Pennsylvania Journal of Constitutional Law.

On its face, the Fifth Amendment offers perhaps the clearest support for the attorney-client privilege. One author has noted that “early American criminal courts and legal scholars viewed the [attorney-client] privilege as an outgrowth of the Fifth Amendment privilege against self-incrimination.” The link is clear. The benefits associated with the attorney-client privilege arise from its ability to facilitate open attorney-client communications. These benefits would cease to exist if a client's preexisting Fifth Amendment rights were forfeited merely because he or she divulged incriminating information to counsel. Some scholars have even gone so far as to argue that the federal government's growing attempts to circumvent the attorney-client privilege may lead to the evisceration of Fifth Amendment rights. Additionally, the Fifth Amendment supports a constitutional attorney-client privilege for reasons beyond self-incrimination issues. For example, courts have suggested that the due process component of the Fifth Amendment “includes the right of one accused of crime to have the effective and substantial aid of counsel.” The attorney-client privilege is necessary to give this right substance because it would be impossible for a lawyer to counsel a client effectively or substantially without the level of frank and open communications ensured by the privilege. This relationship between the due process requirement and the attorney-client privilege coincides with one widely accepted justification for the attorney-client privilege: it should result in the client sharing more information with the attorney, who, in turn, gives more informed and effective advice to the client. Although the privilege may ultimately prevent full discovery in *874 a criminal matter, it promotes due process by fostering better-informed counsel, more efficient judicial processes, and greater obedience to the law. The Fifth Amendment rights implicated by the attorney-client privilege feed off of the assistance of counsel right provided by the Sixth Amendment. Unless a citizen had a right to the assistance of counsel, there would be no need to preserve his or her Fifth Amendment rights in the face of consultations with counsel. While scholars may debate whether the Fifth Amendment alone provides a constitutional basis for the attorney-client privilege, few dispute that the Sixth Amendment right to counsel would have little meaning without the privilege. Indeed, some authors have referred to the privilege as the “cornerstone of the Sixth Amendment right to counsel.”

Contention Three:There Is A Violation Of the Sixth Amendment if an Attorney Cannot Provide Adequate Representation.

Paul R. Rice and Benjamin Parlin Saul, 2002. “Is the War on Terrorism a War on Attorney-Client Privilege?”http://www.americanbar.or /publications/criminal_ justice_magazine_home/crimjust_cjmag_17_2_privilege.html.


November/December 2013 Con ContentionsA client must show that a violation of attorney-client privilege means that the lawyer can no longer give effective legal counsel. This means attorney-client privilege is not a due process right.

The attorney-client privilege protects communications between an attorney and a client when the client confidentially communicates relevant information to an attorney for the purpose of obtaining legal advice or assistance (e.g., defending himself or herself against a claim or charge or adjusting future conduct to comply with the requirement of the law). As long as the client maintains the confidentiality of those communications, the attorney-client privilege precludes the communications from (1) being discovered from either the attorney or client or (2) used against the client if disclosed due to no serious fault of the client.

Although the attorney-client privilege has existed for a millennium (originating under Roman law), the privilege operates only as a rule of evidence. The purpose of the privilege is to facilitate the proper functioning of our adversarial system in which each party must prepare a case independent of the other party. The theory behind the privilege is that when clients are assured that their communications will be kept confidential they will not worry about incriminating themselves, and, therefore, will communicate more openly and candidly with their attorneys. Our adversarial system functions on the premise that only with complete client disclosures can the attorney render effective legal assistance. In substantial measure, the fairness of an adversarial criminal justice system, be it military or civilian, depends on the attorney-client privilege.

Although the privilege is perceived as fundamental to the success of the adversarial system, the Supreme Court has never held it to be constitutionally guaranteed. Its violation, therefore, raises no constitutional issue. Denying the privilege, however, can indirectly implicate constitutional guarantees. To the extent that the privilege is fundamental to the Sixth Amendment guarantee of the effective assistance of legal counsel, a privilege violation may implicate a constitutionally protected right. For a Sixth Amendment claim to succeed, the accused must not only establish a violation of the privilege, but also demonstrate that privilege violation affected the attorney’s ability to render effective representation. The Court will not axiomatically find a Sixth Amendment violation when a privilege violation exists. ( See Weatherford v. Bursey, 429 U.S. 545, 557–58 (1977).)

And, the Attorney-Client privilege is necessary for lawyers to be able to provide adequate representation.

Gardner, James. “Re-Evaluation of the Attorney-Client Privilege (Part I).” Villanova Law Review. 279 (1963). pp. 279-339.

There is, however, another aspect of the matter, namely, the lawyer's duty to assist his client to have self-knowledge, so that the latter may discover his problems and enlighten himself as to the correct solution, to feel that he shares control with his lawyer and that they are together in victory or defeat. This sense of rapport is an important factor in the achievement of a feeling of individual justice under our adversary-type of judicial system. The creation of this sense of empathy and of unity will frequently represent counselling at its best,


November/December 2013 Con Contentionsand no inconsiderable part of counsel's role will consist in counselling by indirection and cross-examination of the individual client.' Moreover, counsel is frequently faced with fluidity of the facts and tenuousness of the relationship in the early stages of the case. Here, the privilege is an important factor in helping the skilled counsellor to provide the client with the sense of security and confidence which will enable the lawyer and the client to work out the matter as a team in such a way that if individual justice cannot be made to prevail it will at least have had a fair chance. It is doubtful if the lawyer would have the necessary freedom and persuasiveness to handle the matter with the same skill and devotion, particularly in the case of the client with intense personal problems - with the accompanying state of emotional involvement - in the absence of a substantial amount of freedom from the threat of compulsory disclosure of at least that information which would tend to make the client look ridiculous, hurt his standing in the community, or seriously threaten his economic interests. Yet, it is in this area that the practice of law achieves its best results - by reason of the services offered to the individual client during times of difficulty, doubt, and emotional turmoil. If freedom from compulsory disclosure were not assured, the lawyer simply could not assume the role of counselor with the high degree of effectiveness that the achievement of justice requires and which generally obtains in the practice of law today.
