By: Edward J. Imwinkelried
Under English law, when a natural person transfers title to
property to a new titleholder, the new titleholder also takes the
evidentiary privilege attaching to any communications between the
prior titleholder and an attorney concerning the transferred
property. This view that the attorney-client privilege should
transfer automatically by operation of law seemingly categorizes
the attorney-client privilege as a mere property right; however,
this privilege was not intended to protect property. Rather,
it was meant to protect confidential communications between a
client and his attorney.
American jurisprudence has recognized the privacy interests at
the foundation of the attorney-client privilege. In the
United States, a new titleholder will not automatically obtain the
evidentiary privilege in a property transfer. To allow such a
conveyance would undermine the purpose of the privilege, and may
place it in the hands of a buyer who may have little or no prior
relationship with the former titleholder and thus no knowledge of
that person’s privacy concerns. For similar reasons, allowing
a titleholder to voluntarily alienate his attorney-client privilege
would be contrary the policy behind this privilege. It would
become a bargaining chip that a transferee would undoubtedly ask
for in the exchange. If the transferee happens to receive the
privilege in the conveyance, he will undoubtedly use it to protect
his own interests rather than those of the prior titleholder.
The purpose of this Article is to initiate a discussion of that
question and to share some preliminary thoughts on the topic.
The thesis of this Article is that a natural person’s evidentiary
privileges should be inalienable both by operation of law and even
by act of the parties. To develop that general thesis, the
Article addresses four specific topics. The initial part of
the Article analyzes the threshold question of whether, in terms of
the alienability of privileges, it is justifiable to treat natural
persons and entities differently. Positing that differential
treatment is warranted, the next part of the Article deals with the
issue of whether the attorney-client privilege of a property owner
should automatically pass to a successor titleholder. The
third part discusses the related question of whether the privilege
ought to be alienable by a voluntary act of the original
holder. The final part of the Article asks whether the
preceding analysis is, in effect, “much ado about nothing.”
Assuming that the general norm ought to be inalienability, should
the original holder be able to circumvent that norm by the simple
expedient of appointing the new titleholder his or her agent for
the purpose of asserting or waiving the privilege? At the end
of this line of analysis, hopefully this Article will not only
construct a case for its general thesis, but even more importantly,
yield some insight into the very nature of evidentiary privileges
in American law.