A VERY COMPROMISED VIEW OF ATTORNEY-CLIENT PRIVILEGE

The Litigation Section of the American Bar Association is trying very hard to sell more of its best-selling book on the law of privilege, The Attorney-Client Privilege and the Work Product Doctrine, by Edna Selan Epstein. The new 2001 edition, like all ABA paperbacks, is far from cheap. It retails for $110, and $90 to Section members. The new edition includes a detailed treatment of what constitutes legal advice, and what legal advice is protected by the privilege, discussing as well just exactly who is a client and who is not. Ms. Epstein emphasizes the number of cases in which lawyers today think they are within the attorney-client privilege when they are not. She points out how having another person present during the initial client interview, whether it be family member, friend or "significant other," will usually waive the privilege. Nor is she convinced that a lawyer can broadly assert that information sought in discovery is protected, and then give even a partial disclosure while attempting to rely on the privilege. That generally blows the privilege for everything, in her opinion. The Litigation Section has committed to supplement this book every year or two years, and Ms. Epstein expects future supplements to provide a much broader discussion of privilege in international litigation.