One of the great myths of the legal profession is that the attorney-client privilege promises absolute confidentiality, to ensure clients’ full disclosure to their counsel. However, as most lawyers know too well, clients have a natural propensity to engage in self-protective selective disclosure — which may be justified, given the many exceptions to the supposedly clear, certain and reliable rule and the vigor with which most counsel attack their adversaries’ invocation of the privilege.
In other words, the attorney-client privilege does not serve its stated purpose of promoting disclosure between client and counsel; does not provide certainty; and is costly to protect, frequently without real reason. The potholes have gutted the highway. It is time to replace this overburdened infrastructure. The need to protect work product developed in anticipation of litigation seems better grounded. It is relatively simple to apply, based solely on logistical and temporal concepts. Current protection, however, is not absolute.
