Prácticas que contribuyen a modos de formación para una educación del ser

The best known survey was conducted by Yale Law Journal over the months of November and December 1961:104

99 _{See Charles Fried, ‘The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation’} (1976) 85 Yale Law Journal 1060.

100 _{See Stephen A Saltzburg, ‘Privileges and Professional Lawyers and Psychiatrists’ (1980) 66 Virginia} Law Review 597, 610.

101 _{Melanie B Leslie, ‘The Costs of Confidentiality and the Purpose of Privilege’ (2000) Wisconsin Law} Review 31, 31-5: Leslie refutes Rice’s argument that the confidentiality requirement is irrelevant and that it has no substantial function; ‘scholars and courts adjudicating privilege issues have long struggled with the tension between the need for the privilege and the substantial cost of shielding relevant evidence from the fact finder.’

102 _{Edmund M Morgan, above n 83, 150. Compare Melanie B Leslie, above n 101, 37: ‘rarely, if ever do} courts have the benefit of empirical evidence when fashioning common-law rules.’

103

Edward J Imwinkelreid, above n 6, 296.

104 _{Notes and Comments, ‘Functional Overlap between the Lawyer and Other Professionals: its} implications for the Privileged Communications Doctrine’ (1962) 71 Yale Law Journal 1226, 1260: the Comment discusses whether the privilege should be withdrawn, partially or totally, from the attorney- client relationship, or extended to accountants, business associates, marriage counsellors, psychiatrists, psychologists or social workers – professions in which the functional parallel is most striking. The comment concluded that eliminating the attorney-client privilege or partial withdrawal of the privilege in areas of overlapping functions be rejected as to do so may destroy or at least imperil the beneficent aspects of the privilege. It further suggested that privilege be extended to psychiatry, psychology, and social work; but that accountants and business associates should not be given the privilege.

...our survey indicated that more people would talk to a lawyer sans privilege, than they would to a marriage counsellor. Lawyers, significantly more than laymen, believe the privilege encourages free disclosure to them. ...most people were either unaware of the attorney-client privilege or believed that it extended to other professional relationships as well. ...Our limited survey suggests that lawyers, generally, are less favourable than laymen to extensions of the privilege.105

The survey finding that the average person knows little about privileges may be not affect people’s behaviour. If people do not know the law of privilege, this does not encourage communications. Alternately their need to communicate would overcome their fear of disclosure. The empirical data, such as it is, is mixed. What may be more significant is whether those who are aware of the nonexistence of a privilege would be deterred from engaging in communications.106 Furthermore it could be argued that the lack of knowledge of privilege could be remedied by education, professionals themselves are likely to inform clients of the existence or otherwise of the privilege, and publicity might inform even more. Professor Krattenmaker argued in 1973 that even a subconscious awareness of the privilege may influence human behaviour.107

The Yale Law Journal study demonstrated that those people most likely to need the privilege, namely litigants, are more likely to inform themselves about the rule than the general populace, and that if it should become known that there is no privilege, (and it would take only one sensational case to accomplish this) it is probable that a great many clients will be deterred from consulting lawyers or from disclosing freely to them.108

Professor Zacharias after reviewing the Yale study concluded that the ‘Yale figures call into question the need for unlimited attorney-client confidentiality rules.’109 In 1998 he conducted a further study in Tompkins County, New York and the responses supported the proposition that some form of confidentiality rule serves confidentiality’s basic premise that clients will confide more readily when they believe confidences will be respected. The survey found that on the whole, the clients accepted that lawyers have a higher legal obligation to preserve confidences than accountants.110 However, few were prepared to trust lawyers more than

105

Ibid 1232-1233 (citations omitted) 1233-4: thus Wigmore’s criteria which speak in terms of ‘the community’s’ evaluation of the relationship might more accurately have been phrased ‘society as the community of lawyers sees it.’ (Citations omitted).

106 _{Note, above n 98, 1474-5 the survey indicates that privileges do not affect the behaviour of most} people, however the effects on a group of 25 to 30 per cent at the margin may well be enough to justify the evidentiary loss attending recognition of the privilege.

107 _{Thomas G Krattenmaker, ‘Testimonial Privileges in Federal Courts: an Alternative to the Proposed} Federal Rules of Evidence as they affect Marital Privileges’ (1973) 16 California Law Review 1353, 1371.

108 _{Note, above n 98, 1475 provided the example: ‘the sending of a priest to jail for refusing to testify} might apprise a significant number of people that their communications with clergy are not protected.’ 109 _{Fred C Zacharias, ‘Rethinking Confidentiality’ (1989) 74 Iowa Law Review 351, 379.}

110

Ibid 384; 57.6 % of clients responded that lawyers must keep confidentiality more than accountants; 50.7 % of clients would give information to lawyers more readily than to accountants.

priests, doctors, psychologists or psychiatrists.111 Thus the data calls into question the central role the legal profession attributes to strict privilege rules in encouraging potential clients to engage lawyers and confide in them.112 The Tompkins County study is however, limited by its relatively small sample group and its surveying of residents who had exhibited an interest in legal issues by volunteering to serve as mock jurors.113

Professor Alexander conducted a study in 1989 of corporate attorney-client privilege in Manhattan, New York and concluded that the study did not prove that attorney-client privilege actually encourages candour in communications between attorneys and corporate management:

Empirical data alone, however, will never resolve all of the problems generated by corporate privilege. Policy considerations should also play a role in shaping it. Furthermore, the type of empirical data collected in a survey of attorneys and corporate executives unavoidably contains a certain amount of professional bias.114

There were also two studies conducted by the American Bar Association Task Force on Attorney-Client Privilege in 2005. Both surveys asked similar questions and obtained similar results. One study conducted by the Association of Corporate Counsel115 produced responses that were overwhelmingly in favour of the continuance of privilege in the corporate setting, with 95 per cent responding that there would be a ‘chill’ in the candour of information provided to counsel if the privilege ceased to protect of client communications. The second survey, conducted by the National Association of Criminal Defense Lawyers: the White Collar Crime Project116 found that 30 per cent of the clients of the in-house counsel had ‘personally experienced’ erosion in the protection afforded by privilege since the Enron collapse, and the percentage leapt to 47.6 per cent in the case of outside counsel clients. The surveys concluded that fear that federal prosecutors will continue to pressure corporations under investigation to waive attorney-client privilege and work-product protections hamper corporate compliance efforts.117

111

Ibid 384; clients responded that lawyers must keep confidentiality more than priests (22.2%), doctors, (30.4%) and psychologists or psychiatrists 31.3%).

112 _{Ibid 384.}

113 _{Daniel Northrop, ‘The Attorney-Client Privilege and Information Disclosed to an Attorney with the} Intention That the Attorney Draft a Document To Be Released to Third Parties: Public Policy calls for at Least the Strictest Application of the Attorney-Client Privilege’ (2009) 78(3) Fordham Law Review 1481,1505.

114 _{Vincent C Alexander, ‘The Corporate Attorney-Client Privilege: A Study of the Participants’ (1989) 63} St John’s Law Review 191, 414.

115 _{Association of Corporate Counsel, ‘Association of Corporate Counsel Survey: Is the Attorney-client} Privilege under Attack? ( April 6, 2005) < [email protected]>.

116 _{Leonard Post, ‘White-collar Crime: Eroding Privilege Hurts Corporate Compliance– Pressure to Waive} Privilege Dissuades open Airing of Problems’ (April 27, 2005) National Law Journal 6.

The empirical critique is not sufficiently solid to support the estimates of either critics or proponents as to either the costs or the benefits of privileges.118 Contrary to Wigmore’s assertion neither the costs nor the benefits are easy to identify, let alone measure. Furthermore the empirical studies of the impact of the evidentiary privileges on the willingness of clients to confide in professional consultants do not bear out Wigmore’s generalisations.119

3.9.1 Estimating the behavioural impacts, in the absence of privilege

The utilitarian justification for client legal privilege is not borne out by the empirical research. The empirical data, scant though it is, points to reluctance by clients to communicating freely about sensitive issues in the absence of privilege. All else being equal, the more incriminating the evidence the greater the liability, (and thus the more valuable the information to society) the less likely it would be that a person would communicate it without the privilege.120 The behavioural impact of an absence of privilege on the professional also needs to be considered; especially given that the professional is more likely than the nonprofessional to know about whether privilege applies, and therefore to change their behaviour accordingly.

The impact is particularly acute in the case of the criminal defence lawyer. First, the lawyer has a duty to learn everything possible about the client’s case, before advising a client; the lawyer needs to know the truth in order to effectively represent the client’s case. Second, the lawyer has a duty to preserve the clients’ confidences and third, the lawyer as an officer of the court has duty to the court of frankness and candour. These three duties have been coined as the perjury trilemma by Professor Freedman.121 The resolution of these prima facie,

118 _{Note, above n 98, 1474.} 119

See Richard C Wydick, ‘The Attorney-Client Privilege: Does it really have Life everlasting?’ (1998- 99) 87 Kentucky Law Journal 1165, 1173: ‘If we depend solely on the utilitarian justification of client privilege, then we should indeed be troubled by the shortage of empirical evidence about whether the candor of attorney-client communication would or would not be lessened if the privilege were curtailed at the client’s death.’ (Citations omitted).

120 _{See Notes and Comments, above n104, 1477.}

121 _{The term was first coined by Freedman in his article: Munro H Freedman, ‘Symposium of Professional} Ethics. Professional Responsibilities of the Criminal Defense Lawyer: the Three Hardest Questions’ 64Michigan Law Review1469, 1469 wherein Freedman poses three questions: ‘1.Is it proper to cross- examine for the purpose of discrediting the reliability or credibility of an adverse witness whom you know to be telling the truth? 2. Is it proper to put a witness on the stand when you know he will commit perjury? 3. Is it proper to give your client legal advice when you have reason to believe that the knowledge you give him will tempt him to commit perjury?’ Freedman notes (1482) ‘...there are policies that justify an affirmative answer to the three questions that have been posed in this article. These policies include: the maintenance of an adversary system; the presumption of innocence; the prosecution’s burden to prove guilt beyond a reasonable doubt; the right to counsel and the obligation of confidentiality between lawyer and client.’ These are questions that can of course be equally cogently answered in the negative.

conflicting duties has caused much controversy in the field of legal ethics122 particularly, when a client makes the intention to commit perjury, known to the lawyer. The lawyer is required to protect the privileged communications of the client; the lawyer is obligated to urge the client to disclose the truth, but to remain silent if the client chooses not to do so. The lawyer’s duty to the court, as an officer of the court, was described by the American Bar Association Standing Committee on Ethics and Professional Responsibility in 1945 as:

‘[W]hile ordinarily it is the duty of a lawyer, as an officer of the court, to disclose to the court any fraud that he believes is being practiced on the court [Canon 22], this duty does not transcend that to preserve the client’s confidences [Canon 37].’123

Then again eight years later in 1953, the Committee resolved the conflict in favour of confidentiality.

`We yield to none in our insistence on the lawyer’s loyalty to the court of which he is an officer. Such loyalty does not, however, consist merely in respect for the judicial office and candor and frankness to the judge. It involves also the steadfast maintenance of the principles which the courts themselves have evolved for the effective administration of justice, one of the most firmly established of which is the preservation undisclosed of the confidences communicated by his clients to the lawyer in his professional capacity.’124