Some proponents of the privilege argue that abandoning the privilege will discourage people

from seeking legal advice, but this is not empirically proven.

Edward J. Imwinkelried, Law Professor-U. Cal Davis, 2002, "The Historical Cycle in the Law of
Evidentiary Privileges," 55 Ark. L. Rev. 241, p. 254-6
of Wigmore's treatise, there have been a number of studies on the effect of the attorney-client and
psychotherapist-patient privileges. It is certainly dangerous to extrapolate from the available data, because there have been only a few handfuls of studies.
However, the findings in the studies are relatively uniform. The researchers have fairly consistently
found that: Even absent a privilege, only a small minority of laypersons would be deterred from
consulting the professional; without a privilege, perhaps a significant minority of the laypersons
would be somewhat more guarded in their communications, particularly written communications, with the confidant; but the
vast majority of laypersons would still consult and communicate with their confidants to roughly
the same extent. On reflection, these findings should not come as a surprise. As Professor Paschal pointed out in the Senate hearings on the proposed Federal Rules of Evidence,
most laypersons communicating with confidants are engaged in primary, pre-litigation activities.
Typically, at the time of the communication they have little or no concern about subsequent litigation. Moreover, they
often have strong, even impelling, reasons to communicate. For example, if a patient is in intense pain or fears that he or she is dying,
the patient is likely to disclose any information requested by the physician regardless of the existence vel non of a medical privilege in that jurisdiction.
And even if it is true that abandoning the privilege will discourage some from seeking legal
advice, only those who are guilty would be discouraged from doing so. The innocent have
nothing to hide.
Ronald Goldfarb, Attorney, 2009, In Confidence: When to Protect Secrecy and When to Require
Disclosure, p. 61
Bentham, along with some early common-law judges, complained about the immoral impact of the rule of privileged
communications, in much the same language as modern conservatives who chide the criminal-
justice system for being a game of chance more than a search for truth. If the guilty client is
deterred from seeking legal advice (a false defense), the argument goes, there is no harm to justice; the innocent
client has nothing to fear, so won't be deterred.
A related argument of privilege advocates is that the privilege is important for attorneys to
provide effective representation, but there is no actual evidence to support this claim. Its just
asserted.
Ronald Goldfarb, Attorney, 2009, In Confidence: When to Protect Secrecy and When to Require
Disclosure, p. 64-5
Professor Imwinkelried's exhaustive examination of the philosophical underpinnings of the attorney-
client privilege concludes that the instrumental rationale, although the majoritarian view over time, was based on
anecdotal, self-serving, and empirically unsupported proof. The relatively few recent (1960, 1980)
studies on the causal relation between clients' disclosures to attorneys and the assurance of a later
privilege are inadequate and exaggerated, and thus misplaced, Professor Imwinkelried concludes. That said, he does not question the overall wisdom
of the rule, only the rationale for it. Others have questioned the rule's wisdom, noting that criminal defense
attorneys invariably do not want clients to be totally open with them, fearing that if they (the attorneys)
know about guilty conduct, they may be prevented from pursuing avenues of defense.
And given how inconsistently the privilege is applied to protect evidence, it is just not that
critical to providing effective representation.
Thomas P. Glynn, Law Professor, Seton Hall, 2002, "Federalizing Privilege", 52 Am. U.L. Rev.
59, p. 85-7
In order for privilege protections to be reasonably certain to a competent attorney looking forward from the time of the communication,
the protections must satisfy at least three conditions. First, the scope of the protection that the privilege affords must be clear: confusing, ambiguous, or flexible privilege
standards do not offer predictable protection. Second, reasonably certain protections must be generally - or at least
predictably - applicable. The attorney must have confidence that protections will apply
regardless of the forum - state, federal, or nonjudicial - and the nature of the proceeding or substantive claims that ultimately give rise to assertion of the protections.
Finally, privilege protections remain wholly uncertain if they are qualified or otherwise subject
to post hoc abandonment or revocation. The current privilege regime fails to satisfy each of
these conditions in many circumstances. There is a substantial amount of confusion over a
number of fundamental aspects of the attorney-client privilege. Indeed, there are numerous, lingering
ambiguities and unresolved doctrinal issues within particular jurisdictions. In addition, there is no
guarantee that the privilege protections afforded in one jurisdiction, forum, or type of proceeding
will apply in another. To the contrary, there is no generally applicable set of privilege rules and,
perhaps surprisingly, limited convergence on key aspects of attorney-client privilege doctrine.
These significant inter-jurisdictional conflicts in the law, combined with varying and often
unpredictable governing choice-of-law principles, result in uncertain protections. Moreover, modern business,
litigation, and conflict resolution practices make it increasingly difficult for an attorney to predict, at the time of a communication, whether the allegedly privileged status of the communication
will be challenged in a particular state or federal court, in a proceeding governed by state or federal privilege law, or in a nonjudicial forum, such as arbitral, regulatory, or congressional
proceedings. Finally, in many circumstances, privilege protections are tentative or qualified: substantive
privilege doctrine sometimes allows decision makers to override, abrogate, or ignore privilege
protections, while at other times, attorneys or their clients waive the privilege permanently by involuntary disclosure or by stumbling into one of the traps for the unwary lurking
below the surface of apparent protection.Thus, the protections that the modern privilege affords often are uncertain. The
story of the uncertainty in today's privilege most appropriately begins in the early 1970s, when Congress had a real opportunity to provide national leadership on privilege doctrine but chose not
to act. Congress had its reasons for not taking the lead a quarter century ago, but, in hindsight, its inaction ultimately was a major cause for the current, intolerable state of privilege doctrine.
Since then, continuing disagreements among state and federal jurisdictions, judicial inattention, flawed
judicial policy making, and changing economic, litigation, and dispute resolution practices have
contributed to the problem.
The failure of the privilege to facilitate attorney client communications undermines the entire
utilitarian rational for the privilege
Thomas P. Glynn, Law Professor, Seton Hall, 2002, "Federalizing Privilege", 52 Am. U.L. Rev.
59, p. 73-4
The utilitarian justification for the attorney-client privilege is premised on the assumption that
providing protection for attorney-client confidences will enhance client candor or, at a minimum, foster greater
attorney-client communication. Although most courts, practitioners, and commentators accept
this assumption outright, it is both disputed and empirically unverified. Skeptics therefore remain, even
though most aspects of the modern privilege - including the corporate privilege - are almost certainly here to stay. Despite the lingering controversy, the
privilege cannot enhance candor or communication if the protection it affords is uncertain. Thus,
for society to reap benefits from the privilege, it must afford sufficiently certain protection for
attorney-client communications.
Certainly, its not truth seeking.
Thane Rosenbaum, Law Professor Fordham University & Novelist, 2004, The Myth of Moral
Justice: Why Our Legal System Fails to Do Whats Right, p. 15-6
Unfortunately, the law is not the place to find those answers. Justice may be about many things, but the
moral complexity of distinguishing between right and wrong, or arriving at the truth of a given
situation, is neither its strength nor its ostensible mission. Courts of law are there to administer
justice, to efficiently streamline cases, to ensure the availability of a forum that offers the chance
at some relief. Its the possibility of justice that it guarantees, not the quality of that justice, nor the certainty that, in the end, justice will make sense, feel right, and resolve
matters in a way that leaves the parties better off and reconciled to move on with their lives. The institution of law defines itself as an arbiter
of legal disputes, and not as a dispenser of moral lessons or seeker of truths. It thrives on an adversarial process that
only takes prisoners and leaves little room for peace. Truth has a way of seeming incidental to the law, an accidental by-
product of a stated goal that generally gets short shrift . The legal system justifies its role in society by imposing discipline on the lawless
and resolving conflicts often inadequately among the rest. These are its fundamentally narrow objectives. As long as caseloads progress, justice is done. Thats what servants of the law
mean when they proclaim, unapologetically, even after an unjust verdict, that the law has spoken. But when the results are immoral, what can be said about the words that were used to justify
the laws spoken decree? When the application of the law is perceived as senseless, it has a shattering effect
on the capacity of the parties and the community to reconcile and move on.
And this fairness in transactions increases respect for the rule of law.
Thomas P. Glynn, Law Professor, Seton Hall, 2002, "Federalizing Privilege", 52 Am. U.L. Rev.
59, p. 71
greater client candor and communication facilitates ongoing compliance with the law. Legal
rules are complex and fact-specific in application; attorneys are better situated to appreciate the meaning and
effect of such rules and to determine whether or not actions conform to these rules. Moreover, legal
compliance enhances social welfare by furthering the underlying aims of the law
Attorney client privilege is the cornerstone of the criminal justice system.
Zacharias (Cornell Law School, Rethinking Confidentiality, Iowa Law Review, 1989)
The primary argument in favor of attorney-client confidentiality in civil cases rests on a three-step syllogism. First, for the adversary system to operate, citizens
must use lawyers to resolve disputes and the lawyers must be able to represent clients effectively. Second,
attorneys can be effective only if they have all the relevant facts at their disposal. Third, clients will not employ
lawyers, or at least will not provide them with adequate information, unless all aspects of the attorney-client relationship
remain secret. n28 Thus, the systemic argument goes, attorney-client confidentiality is the foundation of orderly and effective
adversarial justice.
Misinformation ivalidates attorney-client privilege.
Zacharias (Cornell Law School, Rethinking Confidentiality, Iowa Law Review, 1989)
The notion that clients may, absent the promise of full confidentiality, withhold important information from their attorneys is intuitively more palat- able. n59 A client who expects the lawyer to
reveal embarrassing or damaging facts may not be willing to tell all. Again, however, for the strict- ness of confidentiality rules to be significant
in assuaging client fears, [*365] several premises about the actual practice of law must hold true. Attorneys
must regularly inform clients of the rules, or clients must learn of them from independent sources. Clients
must understand the explanation of confidential- ity's scope. The rules must be sufficiently clear that
clients can know which of their statements will remain secret. For if these premises do not hold true, hesitant clients will withhold information
despite the existence of firm confi- dentiality guarantees. Supporting the premises may be difficult. Even if a lawyer makes a good faith effort to
explain the rules to clients, the clients are likely to remain confused at least as to details. n60 Many
aspects of confidentiality are ambiguous. A few universal exceptions to confidentiality exist, n61 some of
which are subject to hot debate. n62 Often the distinction between disclos- able communications and
secrets rests on "vague and open-textured criteria." n63 To the extent clients learn of confidentiality from sources other than their lawyers -- such as
television, literature, or friends -- the explanations they receive are likely to ignore details or distinctions among the various jurisdic- tions' codes. As a practical matter, clients thus
probably end up with only a general understanding that attorney-client conversations usually remain
confidential but occasionally may be revealed. If that is the case, creating limited [*366] additional
disclosure exceptions is unlikely to affect a client's decision to confide. n64 Absent supporting empirical evidence, it is problematic to
assume that clients would avoid lawyers to any significant degree merely because they cannot speak in absolute secrecy. n6
Lawyers can operate effectively without complete information.
Zacharias (Cornell Law School, Rethinking Confidentiality, Iowa Law Review, 1989)
tated broadly, the claim that lawyers can be effective only when in- formed of all relevant facts is simply untrue.
Attorneys do without informa- tion in a broad variety of contexts. n66 To make sense, the argument in support of confidentiality must thus be redefined as follows: Lawyers whose clients hide
information are likely to perform less ably. By encouraging client disclosure through secrecy guarantees, the state protects clients who other- wise would jeopardize their case by withholding
information. Professor Morgan long ago questioned the need to protect uncooperative or deceitful clients. n67 The client who receives bad advice because
he fails to inform the lawyer has only himself to blame. Alternatively, if the client lies to the lawyer and
later finds himself confronted by the truth, the government has little reason to aid the client. The law
should probably not be written for the benefit of liars or perjurers. n68 Morgan's position, however, does not do full justice to one type of
client: the genuinely confused client who needs advice and representation, but unthinkingly hesitates to confide for fear his secrets will become public. Yet by definition, this category of client
feels sufficiently troubled to seek legal advice. He is unlikely to undermine that advice by withholding information, particularly when told by the lawyer that full disclosure is important. [*367]
If the client does withhold particularly embarrassing items, it is not clear that the representation will be significantly affected. In some settings, lawyers actually would prefer not to be told
everything the client knows. n69 Even a lawyer who ideally would like to know all relevant facts often can provide good legal advice based on partial information. Studies suggest
that criminal defendants rarely are frank with their lawyers. n70 Yet the criminal justice system relies on
the presumption that these clients are nevertheless fairly and well represented. I do not suggest that confidentiality rules have no
effect on client forth- rightness or the quality of representation. But in the abstract, it is difficult to determine the extent of any effect. n71 If the number of clients needing and deserving the
protection of absolute rules are indeed few, the interest in "assuring effective representation" may be outweighed by society's alternative interests in allowing limited disclosures.
Attorney-client privilege does not prevent future misconduct.
Zacharias (Cornell Law School, Rethinking Confidentiality, Iowa Law Review, 1989)
empirical questions that plague the systemic justification for strict confidential- ity are present here.
Confidentiality probably does allow some lawyers to prevent some misconduct before it occurs. But adding limited exceptions might not substantially affect lawyers' ability to dissuade improper
acts. Moreover, it is unclear that strict confidentiality is what provokes client candor about potential improprieties. n82 In most cases, lawyers impress upon
clients the importance of full disclosure to the lawyer's ability to evaluate the case. This warning alone
may procure the type of information lawyers need to prevent misconduct. n83 As a factual matter, the additional disclo- sures strict
confidentiality fosters may only marginally improve the lawyer's ability to enforce the law. Enabling clients to discuss planned misconduct with
impunity sometimes might even promote misconduct. In consulting with clients, lawyers [*370] often serve the function of psychiatrist, social
worker, or priest-confessor. They provide some clients with a psychological outlet that helps the clients persist in misconduct. Empirical research might show that
lawyers play this role only rarely, that the risk of promoting misconduct deserves little weight.

Attorney-client privilege challenges the legitimacy of the legal profession.
Zacharias (Cornell Law School, Rethinking Confidentiality, Iowa Law Review, 1989)
the ramifications of the model codes' adoption of strict confidenti- ality rules was that the profession
moved to protect its own interests. When the strict general prohibitions against disclosure affected the
personal and economic convenience of lawyers most directly, code drafters were prompted to insert
exceptions. n85 These exceptions -- now part and parcel of most strict state codes -- do not take into
account clients' actual secrecy expectations. A lawyer may disclose when confidences threaten to embroil the lawyer in a future crime. n86 The lawyer may
use client communications when "necessary . . . to collect his fee." n87 When the lawyer's conduct is itself called into question -- even
through no fault of the client -- the lawyer also has recourse to the client's information. n88 That is so even though the
lawyer could not, under most codes, use the same information to save the life or reputation of an innocent third party. n89 Perhaps because of this apparent imbalance, judges have developed a
series of contorted common-law doctrines through which litigants can force disclosure of confidences under exceptions to the attorney-client [*371] privilege. n90 Yet, for the most part, the
privilege exceptions do not rely on social or moral interests in disclosure. Rather, they hinge on practical and often counterintuitive notions that clients cannot anticipate when they share their
secrets. The resulting patchwork of standards governing attorney-client secrets casts doubt on the ideals to
which confidentiality rules aspire. n91 The inconsistency between practice and the publicized guarantees
of confidential- ity may negatively affect lawyer and lay perceptions of the legal profession's ethics.
Arguably, a code that approaches the need for exceptions realistically would serve clients and society in a
more logical and coherent way.

Attorney-client privilege damages opinions of lawyers.
Zacharias (Cornell Law School, Rethinking Confidentiality, Iowa Law Review, 1989)
To the extent strict rules cause lawyers to engage in "moral escapism," n107 confidentiality also helps foster the public notion that lawyers lack
integrity. Let us think about the matter from the clients' perspective. They are told that virtually anything
they relate to the attorney will be kept a secret. If they wish to use the legal system to harass an
adversary, the lawyer will discuss the possibility with them seriously. If they wish to confess a heinous
misdeed they have committed in the past, they can get it off their chests without fear of reprisal. n108 The
attorney will be happy to describe options, in secret, for getting around government regulations or contractual
obligations -- to the point of evaluating which of the options are illegal, which are not, and which are shady but unlikely to be punished. To the extent litigation tactics are not "frivolous" or the
product of bad faith, n109 the lawyer may even be willing to strategize with the client about the hardship and cost that
discovery and other legal procedures can impose on an opponent and the likelihood that the burden will
prompt favorable settlement. The image of the coconspiratorial lawyer helps explain why society considers the profession unsavory. Even if the lawyer informs the client
of the few exceptions to strict confidentiality rules, n110 there seems to be nothing the lawyer is unwilling to discuss behind closed doors. n111 Clients and observers of
the legal profession naturally come to look upon lawyers as "dissemblers, distorters who subordinate truth
to winning, and as technicians who answer to but one command, that of their client." n112
Studies show attorney-client privilege is ineffective.
Zacharias (Cornell Law School, Rethinking Confidentiality, Iowa Law Review, 1989)
In 1962, the Yale Law Journal conducted a limited study of the impor- tance and effect of attorney client
privilege rules. Its primary mission was to compare the privilege accorded the bar to that granted other professions. n118 The Journal distributed
questionnaires and accumulated responses from 108 laypersons, 125 lawyers, and between 12 and 51
members of several other professions, including psychology, psychiatry, social work, marriage
counseling, and accounting. n119 The survey revealed widespread misinformation concerning privileges
in the various professions, and particularly the attorney-client privilege. n120 Interestingly, "[l]awyers, significantly more than laymen, believe the privilege encourages free disclosure to them."
n121 Seventy-one of 108 laypersons surveyed understood that, as a general matter, attorneys would not
disclose confidential matter. n122 But a significant percentage of the laypersons thought that lawyers, if
questioned in court, would have an obligation to [*378] reveal confidences. n123 Forty of the 108 subjects
believed there should be a legal obligation of attorneys to reveal confidences when asked to disclose in
court, and an additional 19 did not take a position opposing disclosure. n124 The pool split evenly on the question of whether an outright elimination of the attorney-client privilege would
deter client disclosures. n125 These figures support the notion that confidentiality rules have some impact on the way clients use attorneys. But they also cast doubt on whether the effect is as
substantial as proponents of confidentiality presume. Figures comparing lay perceptions of nondisclosure principles among the different professions are even more revealing. Attorney-
client confidentiality may not be as important to clients as lawyers assume. For example, layper- sons
seem to be more willing to speak with divorce lawyers, even without the protection of a privilege, than
with marriage counselors. n126

Schauer JFK School of Government Reflections on the Value of Truth Case Western Law Review 1991)
If truth is instrumental to some deeper good, such as happiness, utility, dignity, stability, human well-
being, or whatever, then the instrumental relation between truth and that to which is is instrumental is
empirical and not definitional, and therefore capable of being false in some or many cases. Given the deep-seeded racism in the United States, I would consider it an
open-question whether the United States would be better of if everyone in the country believed (falsely) that
George Washington, Abraham Lincoln, and Elizabeth Cady Stanton were African Americans. I am not convinced that
the country would be, on balance, hurt if American men believed (falsely) that cigarettes and alcohol cause baldness. I am also
willing to entertain the possibility that the false belief of most Americans that their banks have well in excess of fifty percent of deposits
available for immediate withdrawal is an essential condition for the successful operation of the banking
system in the United States, which is in turn instrumental to economic stability, which is in turn
instrumental to the general welfare of the people of the United States. At the very least, therefore, it appears that if truth is
instrumental, then moir truth, or even less falsity, is not in every case instrumental to what it is that truth is instrumental to.
Schauer JFK School of Government Reflections on the Value of Truth Case Western Law Review 1991)
Knowledge is instrumental to power. Knowledge of that environment, including knowledge about other
agents, is likely to increase the ability of the possessor of that knowledge to see both the obstacles and
the opportunities in a potentially power-stifling environment. Having a map and a weather forecast
increases my control over the physical environment, and, in the same way, having knowledge about
what motivates, annoys, embarrasses, or angers someone else increase my control over them.
The supreme court has not found attorney-client privilege to be a constitutional right.
Rice and Sarul (American University, Law Clerk, Is the War on Terrorism a War on Attorney Client Privilege? Criminal Justice Magazine,
2002)
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 attorneys ability to render effective representation. The Court will not
axiomatically find a Sixth Amendment violation when a privilege violation exists.