On the eve of the 2000 election, George W. Bush boasted: “They misunderestimated me.”1 And, arguably, he was correct. Equally “misunderestimated,” or at least misunderstood, is the attorney-client privilege.
For almost 25 years, I have been writing about the eroding status of the attorney-client privilege.2 Practitioners, legal academics, and judges (with a few, notable exceptions—e.g., Judge Pierre Leval)3 seem either not to understand the privilege, or believe that the purposes it serves are overstated or not important.4 One recent case—which purports to strengthen the privilege—further documents this disheartening state of affairs.
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