“I am to break with thee some affairs that touch me near, wherein thou must be secret.”
— William Shakespeare, “Two Gentlemen of Verona”
“Deceive not thy physician, confessor, nor lawyer.”
— George Herbert
Attorney-client privilege has been in the news quite a bit lately, but just what is it, where does it come from, and what are its limitations?
The overall concept is quite simple. The law recognizes that there are certain persons that you should be able to talk to without fear that those conversations will be repeated or their contents divulged by some sort of compulsory legal process. Those persons include your spouse, with whom you should be able to talk freely, your clergy person, to whom you should be able to confess and seek spiritual guidance, and your lawyer, who needs to have accurate information from you in order to give you good legal advice.
The historical origin of the privilege can be traced back to English law, though its exact development is somewhat unclear. In a 1978 Yale law journal publication, professor Geoffrey C. Hazard Jr. (a Cleveland native who died just four months ago) sought to trace the roots of the privilege. He noted that the first dozen or so cases on the subject appeared in British law between 1655 and 1740, though most of those cases resulted in the claim of privilege being denied, or at least extremely limited.
Then came the case of Annesley v. Anglesea in 1743. The case reads like the plot to a Disney film. As Professor Hazard put it:
“The question of title depended on whether James Annesley or the defendant, Richard Earl of Anglesea, was the owner of the lands by inheritance from Arthur, Baron of Altham. Although suits of ejectment were conventionally brought to determine title, Annesley v. Anglesea was framed as a trial of title in order to determine a more sinister issue. The defendant Earl concededly was the brother of Arthur of Altham and his rightful heir if Arthur had died childless. But James Annesley claimed to be Arthur’s long lost son, born of Arthur’s lawful wife but then put out of his father’s house by a jealous step-mother, left penniless to fend for himself in Dublin and London after his father’s death, transported to a remote colony under indenture from which he could not escape for some 13 years, prosecuted (unsuccessfully) for murder at the instance of his scheming uncle, the defendant, and finally rescued and enabled to assert his rightful claims by the loyal testimony of old nurses and retainers.”
James, the plaintiff, claimed that his uncle Richard had confessed his evil plan to his attorney and enlisted the attorney to get James framed and hung for the murder he didn’t commit. James wanted the attorney questioned about the plot, and about his uncle’s confession, as well as the offer he claimed his uncle made to pay the attorney the present-day equivalent of two million British pounds.
The arguments in that case foretold several exceptions to the privilege that apply today. First, the communication must have something to do with the legal relationship between the client and the lawyer. Your conversations with your lawyer about your gardening or about your favorite sports team, aren’t privileged unless you have legal business in those areas.
Second, if the client is communicating to the attorney a present intention to commit a crime (such as, ‘I’m about to frame my long-lost nephew for murder, how should I go about doing that without getting caught?’), then the attorney has a duty to disclose the present intention to cause harm to someone else. This makes sense within the privilege — it exists to allow a person to seek legal advice from their counsel, not to prevent an attorney from saving a person from harm that the attorney knows is about to befall them.
Third, the communication between client and attorney can’t be for a criminal purpose in and of itself. If the attorney and the client are running a drug smuggling business together, then their communications are not privileged. The privilege can also be waived in certain probate court proceedings where the intent of the decedent is in question, and the attorney can clarify it by divulging client communications.
Most states have a specific law laying out the privilege and its exceptions. Ohio’s version can be found in Ohio Revised Code section 2317.02.
James Annesley eventually won his case against his uncle, although he died within a year of the verdict being handed down. His story, and the trial, were the basis for Robert Louis Stevenson’s book “Kidnapped,” published in 1886.
David Hejmanowski is judge of the Probate/Juvenile Division of the Delaware County Delaware County Court of Common Pleas.