Wednesday, June 03, 2009

Privileged Communications with Oneself

Does a lawyer representing herself enjoy the protections of the attorney-client privilege?

The attorney-client privilege protects communications between privileged persons (i.e., lawyers and those assisting them) made in confidence for the primary purpose of securing, obtaining, or providing legal advice. In the case of self-representation at least one puzzling element of the attorney-client rule is “communications.” In what sense can one (in her role as client) communicate with herself (in her role as lawyer)? For one, internally talking to oneself is better described as thinking than communicating. And, even writing or verbally expressing to oneself one’s thoughts and mental impressions seem more like solitary activities than acts of communication. After all, not unlike the Tango, it necessarily takes at least two to communicate.

But does it? It occurs to me that, when done over time, one may communicate information to oneself. Leaving a note to oneself on one’s desk listing “things to do” the next day, calendar entries or self-addressed letters and emails all seem like good examples. In all these cases information is conveyed from oneself to oneself; or, in other words, communicated. The communication takes place between one, as one is at the present time (T1), to oneself, as one will be at a future time (T2). In these cases while the person clearly maintains his or her identity over time – the person sending the information at T1 is the same individual receiving the information at T2 – there still is a strong sense that information is being communicated. I believe that the operative difference between person T1 and person T2 allowing “them” to communicate is not so much the length of the temporal gap between “them” as much as some change people undergo when time elapses. Naturally, a trans-temporal personal communication will not, in itself, suffice to qualify for the privilege. The communication must also be made in confidence and for the purpose of obtaining or providing legal advice (to oneself).

This notion of trans-temporal self-communication hardly solves all the problems raised when trying to apply the attorney-client privilege to self-representation. Some, but not all, of these difficulties could be solved by the attorney-work product doctrine. One limitation is that the attorney-work product doctrine does not offer the same level of protection as does the attorney-client privilege. A second is that the attorney-work product doctrine does not protect from discovery any work produced by an attorney as part of the representation. It only protects materials prepared by an attorney for an ongoing or a reasonably anticipated litigation.

I am not sure how courts have addressed this little crinkle. But, my notion of trans-temporal communications notwithstanding, it seems that the potentially limited application of the privilege doctrine to self-representation offers further support to the creed that a lawyer who represents himself has a fool for a client. Perhaps this puzzle is not of great practical significance yet I think it could make for a good ten minutes on an episode of Law and Order.

Posted by Ori Herstein

(Nothing written in this post should be taken as legal advice and everything written in this post is the opinion of the author and his alone)


Michael C. Dorf said...

Interesting question. 2 minutes on Westlaw turned up no cases in the allstates directory, but perhaps there's more out there. One very interesting aspect of this is that the self-representing attorney is only going to be able to claim the privilege for written statements to himself, as Ori notes. Those writings would NOT be covered by the Fifth Amendment privilege against self-incrimination in a criminal case, except for the "act of production" if sought by subpoena. So the existence or not of an attorney-client privilege would be crucial in such cases, and of course in a purely civil matter, the Fifth Amendment privilege wouldn't even apply.

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