The Dynamic Attorney-Client Privilege

The proliferation of legal rules and the growth of government regulation have left very few aspects of human activity and relationships untouched by law. For these reasons, the categories of matters that may come within the scope of legal representation today are very broad indeed. Even persons not contemplating litigation, considering a transaction, or requesting preparation of a legal document may seek the advice of a lawyer about the legal implications of diverse forms of human conduct and associations. To provide effective representation, the lawyer in contemporary American society may need to bring to bear expertise, knowledge, skills, and services beyond what has been traditionally regarded as "legal" in nature. Under modern circumstances, when a matter having a legal dimension is brought to a lawyer; the animating purpose of the attorney-client privilege is best realized by allowing the lawyer and client to fully explore both legal and non-legal aspects in an integrated manner. And if we wish to encourage lawyers and clients to engage in moral deliberation, the confidential shield of the privilege must cover introduction of such non-legal principles into the discussion. Accordingly, the contours of the attorney-client privilege should adjust proportionally with the dynamic changes in the practice of law and lawyer counseling. [PUBLICATION ABSTRACT]