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Hadfield, Gillian K.; Leshem, Shmuel --- "Attorney-Client Confidentiality" [2012] ELECD 91; in Sanchirico, William Chris (ed), "Procedural Law and Economics" (Edward Elgar Publishing, 2012)

Book Title: Procedural Law and Economics

Editor(s): Sanchirico, William Chris

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847208248

Section: Chapter 3

Section Title: Attorney-Client Confidentiality

Author(s): Hadfield, Gillian K.; Leshem, Shmuel

Number of pages: 15

Extract:

3 Attorney-client confidentiality
Gillian K. Hadfield and Shmuel Leshem


1. Introduction
The protection of information generated and shared in the attorney-
client relationship is a fundamental attribute of Anglo-American legal
systems. In such systems, otherwise characterized by extensive efforts
such as liberal discovery rules and broad subpoena powers to increase
the information available to courts, regulators and opposing litigants,
attorneys generally cannot be compelled to disclose either what they have
told to or been told by their client (attorney-client privilege) or what facts
or ideas they have generated in preparation for litigation (work-product
doctrine).1 Nor, as a result of professional ethics regulation, can they
voluntarily choose or threaten to disclose such information against their
clients' wishes. (We will refer to these three distinct forms of protection
collectively as attorney-client confidentiality.) Protection of the confiden-
tiality of attorney-client communications and legal efforts on behalf of a
client has direct effects on the cost and welfare implications of litigation
through its impact on the production and sharing of information. It also
has substantial indirect effects on the economics of legal markets as a
result of the role of confidentiality in the design of legal professional regu-
lation. Protection of attorney-client confidentiality is the core traditional
rationale for several distinctive and arguably non-competitive features of
legal markets, including regulatory prohibitions on the corporate provi-
sion of legal services and non-lawyer ownership, financing, or manage-
ment of legal providers.
In this chapter, we review ...