Great (and Reasonable) Expectations: Fourth Amendment Protection for Attorney-Client Communications
Abstract
The attorney-client privilege is recognized in every state and in the federal judicial system. Yet despite its ubiquity, the scope of protection provided by the privilege varies widely among the various jurisdictions. Moreover, the privilege is generally considered to be a mere rule of evidence or state law and not a constitutional right. This Article argues that the Fourth Amendment to the United States Constitution applies to and protects attorney-client privileged communications. Since clients have a reasonable expectation of privacy in their communications with their attorneys and society is prepared to recognize that expectation as reasonable, such communications are protected by the Fourth Amendment’s prohibition of unreasonable government searches and seizures. Recognizing Fourth Amendment applicability will establish a consistent minimum level of protection for privileged communications in every state and federal jurisdiction. Equally important, such recognition will reflect and validate the unique privacy interests that clients have in their communications with their attorneys and requires court-ordered production of those communications to be reasonable.