Lundberg: The importance of preserving the attorney-client privilege

February 11, 2015

don lundberg commentartThe dispute between former Indiana University Purdue-Fort Wayne Chancellor Michael Wartell and Purdue University has attracted much media attention – some of it wondering why Purdue would fight so hard to protect its claim that a lawyer-investigator’s report was protected by the attorney-client privilege and should not be released. The issues in that case are complex, and I do not propose to get into those technicalities here.

However, it is important for readers to know why the attorney-client privilege is important and worth fighting hard to protect. The privilege has been recognized for hundreds of years. It protects confidential communications between all clients – big or small, corporations or individuals – and their lawyers. Why is that? Because lawyers cannot give sound legal advice if their clients are afraid to be candid about their legal problems. If the media, opposing parties or any other non-clients could invade lawyer-client communications, clients would no longer be willing to be candid with their lawyers or lawyers candid with their clients. As a result, clients would be deprived of sound legal advice.

Readers might remember the case of Vincent Foster, a deputy White House counsel in the Clinton administration, who committed suicide. Shortly before he died, he met with a lawyer. After Foster’s death, an independent counsel who was investigating possible illegal conduct by the White House Travel Office subpoenaed the lawyer to provide the notes of his meeting with Foster. Of course, Foster had no current stake in whether the notes were released because he was dead. But his lawyers fought the subpoena out of concern that giving up the notes might make all clients feel less secure in revealing confidential information to their lawyers when they are alive if those communications could be disclosed after they die.

The Foster case went all the way to the Supreme Court. The Supreme Court’s decision underscored the sanctity of the attorney-client privilege. The court said that encouraging candid communications between attorneys and clients is so important that even the remote possibility that those communications might be revealed after a client’s death presents an unacceptable risk that clients will not be candid with their lawyers when they are alive. Society suffers if clients are deprived of the legal advice they need to comply with the law.

It is only natural for people to be curious about what lawyers and clients say to each other in confidence, especially in cases of public interest. But thinking about it as if we were clients, we would all fight hard and want our lawyers to fight equally hard to keep outsiders from learning what we discuss with our lawyers in confidence.•


Donald Lundberg is a partner at Barnes & Thornburg LLP and former executive secretary of the Indiana Supreme Court Disciplinary Commission. His law firm, Barnes & Thornburg LLP, represented Purdue in its effort to get the Indiana Supreme Court to review the Court of Appeals’ decision in the Wartell case. The opinions expressed are those of the author.