An Economic Justification for the Attorney-Client Privilege

Abstract

The attorney-client privilege is one of the most identifiable and enduring features of the legal profession in the United States. However, the privilege has received constant criticism over the years, with many calls for its total abolition. These criticisms are founded on a number of grounds, including the philosophical (the privilege only serves to protect the guilty) and justice (maximising the amount of evidence available to the court to reach the best decision). Additionally, some critiques are founded on economic grounds, including characterising the privilege as a form of monopoly control over certain services as well as facilitating rent seeking behaviour on the part of the legal profession. This paper presents economics arguments put forward in favour of retaining the privilege, as well as a new justification that equates the attorney-client privilege with the privilege against self incrimination on functional grounds.