The attorney-client privilege, which prohibits the compelled disclosure of confidential communications between an attorney and their client, is enshrined in common law and statutory codes across the country. See, e.g., Cal. Evid. Code § 950 et seq.; Upjohn Co. v. United States, 449 U.S. 383, 389 (1981) (the fundamental purpose of the attorney-client privilege “is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice”).
The long-standing recognition of this privilege reflects the policy decision that the encouragement of candor between lawyers and clients outweighs probative and evidentiary value of those frank communications to the administration of justice.
But what happens when a different policy choice is made?