TWELVE was established in August 2005 with the objective of publishing no more than one book per month. We strive to publish the singular book, by authors who have a unique perspective and compelling authority. Works that explain our culture; that illuminate, inspire, provoke, and entertain. We seek to establish communities of conversation surrounding our books. Talented authors deserve attention not only from publishers, but from readers as well. To sell the book is only the beginning of our mission. To build avid audiences of readers who are enriched by these works—that is our ultimate purpose.
Copyright © 2010 by David R. Dow
All rights reserved. Except as permitted under the U.S. Copyright Act of 1976, no part of this publication may be reproduced, distributed, or transmitted in any form or by any means, or stored in a database or retrieval system, without the prior written permission of the publisher.
Twelve
Hachette Book Group
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Twelve is an imprint of Grand Central Publishing.
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First eBook Edition: February 2010
ISBN: 978-0-446-57394-8
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See MODEL RULES OF PROF’L CONDUCT R. 1.6 (2008) cmt. [3] (explaining distinction between attorney-client privilege and duty of confidentiality). Throughout this piece, I will often refer to the American Bar Association’s MODEL RULES OF PROFESSIONAL CONDUCT. Although ethical standards vary from jurisdiction to jurisdiction, the MODEL RULES have been quite influential, having been adopted in large part by the majority of jurisdictions.
The attorney-client privilege is one of the oldest privileges recognized in common law. In its classic form, it provides that confidential communication between an attorney and client is protected from disclosure forever unless waived. See 8 J. WIGMORE, EVIDENCE, § 2292 (McNaughton rev. 1961). Based on this classic formulation, all modern jurisdictions recognize the attorney-client privilege. See, e.g., FED. R. EVID. 501 (providing that attorney-client privilege “shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in light of reason and experience”); CAL. EVID. CODE § 954 (2003) (providing that “the client, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer”); TEX. R. EVID. 503 (providing that a “client has a privilege 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”).
Commonly recognized exceptions to the attorney-client privilege are usually limited to the crime-fraud exception (when the client consults with the attorney for the purpose of committing a future crime or fraud) and the testamentary exception (where a testator’s communication with counsel in drafting a will is revealed in order to establish testamentary intent). See Swidler & Berlin v. United States, 524 U.S. 399, 409–10 (1998) (discussing these limited exceptions to the attorney-client privilege).
See MODEL RULES OF PROF’L CONDUCT R. 1.6(a) (2008) (providing that a “lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent”).
See MODEL RULES OF PROF’L CONDUCT R. 1.6 cmt. [3] (2008) (“The confidentiality rule… applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source”).
See MODEL RULES OF PROF’L CONDUCT R. 1.6(b) (2008) (setting forth exceptions to the duty of confidentiality, which include preventing reasonably certain death or substantial bodily harm or preventing client from committing a financial crime or fraud).
See Swidler & Berlin, 524 U.S. at 403 (“The privilege is intended to encourage
