stating where privilege exists for specific purpose; party seeking disclosure has burden of establishing prima facie case that purpose of privilege would be frustrated by exercise of privilege
How later courts described this case
- stating where privilege exists for specific purpose; party seeking disclosure has burden of establishing prima facie case that purpose of privilege would be frustrated by exercise of privilege
- "It has been held that the privilege applies to a communication ... only when the communication relates to a fact of which the attorney was informed for the purpose of securing either a legal opinion, legal services, or assistance in some legal proceeding."
- “[T]he privilege is not concerned with prejudice, the ascertainment of truth, or the reliability of attorney-client communications, but only to foster a confidence between an advocate and his client that will lead to a trusting and open dialogue.”
- “To permit the attorney to reveal to others what is so disclosed, would be not only a gross violation of a sacred trust upon his part, but it would utterly destroy and prevent the usefulness and benefits to be derived from professional assistance”
Written by the judges who cited it.
The opinion
HOFFMAN, Judge,
concurring:
Although joining in the majority opinion, I believe it appropriate to comment further on the specific nature of the attorney-client privilege. That privilege represents a time-tested accommodation between the client’s welfare and interest and the effective administration of justice. The comment to Rule 1.7 of the proposed ABA Model Rules of Professional Conduct illustrates the nature of this accommodation:
Defining the scope of the duty to disclose a client’s confidences is most difficult. On the one hand, the client expects that matters imparted to a lawyer will be kept confidential. On the other hand, in becoming privy to client confidences a lawyer may foresee that the client intends serious and perhaps irreparable harm to another person. To the extent a lawyer is prohibited from making disclosure, the interests of the potential victim are sacrificed in favor of preserving the client’s confidences even though the client’s purpose is wrongful. However, to the extent a lawyer is required to disclose a client’s purposes, the client may be inhibited from revealing facts which would enable the lawyer to counsel against a wrongful course of action. Any rule governing disclosure of threatened harm involves balancing the interests of one group of potential victims against those of another. On the assumption that lawyers generally fulfill their duty to advise against the commission of a deliberately wrongful act, the public is better protected if full disclosure by the client is encouraged than if it is inhibited. .
*379 As that comment indicates, courts must be mindful that limitations on the privilege may result in a client’s reluctance to disclose relevant information to his attorney. Nevertheless, courts must balance the interests of the client against the potential harm to others. This is particularly so in a child custody case where the child’s best interests are of paramount importance. Consequently, if the party seeking to overcome the privilege establishes that the child’s interests require disclosure of the information which the client asserts is privileged, the privilege must yield.
Because the present record is insufficient to permit us to make that determination, I agree with the majority’s decision to remand the case for further proceedings.
SPAETH, J., joins in this opinion.