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Positive Theory of the Attorney-Client Privilege and the Work Product Doctrine

NCJ Number
Journal of Legal Studies Volume: 19 Dated: (June 1990) Pages: 359-397
R J Allen; M F Grady; D D Polsby; M S Yashco
Date Published
27 pages
A positive theory is developed that explains the existence of confidentiality rules in a system that values openness. The attorney-client privilege and the work product doctrine are examined to determine what incentives or disincentives to provide information to the courts are created through the existence of such rules.
The argument asserted is that such rules provide the optimal amount of useful information to the courts, because without them the client would be discouraged from being totally candid with the attorney, which would then limit the amount of information the attorney can release to the courts. The attorney would also have less information to use as a basis for research for the case which would decrease the effectiveness of discovery and representation by the attorney. Theories about the attorney-client privilege are discussed including the contingent claim, Morgan, Bentham-Kaplow-Shavell, Wigmore, and rights-based theories. Cases are cited to aid analysis of the theories. The work product doctrine is also examined with its associated theories including the joint production and Easterbrook theories. The use of economic analysis to examine these rules provides the conclusion that the disincentives to provide information in an adversary system are offset by the existence of the confidentiality rules. 110 footnotes.