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Zelgai Saleh
Mrs. Partlow
English 11 AP
January 20, 2014

The Attorney-Client Privileges and Kantian Ethics within the United States
The United States legal system is one based in a strict code of ethics, morality and justice
and yet even though we say to strive towards morality and justice we continue to see huge moral
conflicts and violations of the values on which the system is built. The prime actors within our
system are attorneys, who are bound tightly by the attorney-client privileges. Here is where the
moral conflict within our system arises. Our system ought to and in some senses already strives
toward an ideal Kantian (deontological or a wills based system of moral evaluation) framework
but the attorney-client privileges and the consequences of them upon our attorneys and
defendants directly and substantially conflict with this framework. For that reason Congress
ought to and must abolish or effectively nullify the attorney client privilege (ACP) on all
juridical levels.
Before evaluating the implications of ACP on a Kantian framework determining why the
US government ought to operate within such a framework is necessary. A deontological
framework is a system of moral evaluation determined by the will of our actions and by the
intrinsic morality of our actions and not what consequences they cause. The structure for such a
system was set down by Emanuel Kant in a combination of several of his writings, but for the
purposes of this paper a deontological framework is one that arises from treating people as ends
in themselves and looking toward the intrinsic morality of actions. Basically, certain things are
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always right and wrong no matter what and people cant be used as tools to reach an end because
they have personal worth.
First at an individual level (Lawyers, defendants) a deontological framework is
necessary to preserve autonomy, this is proven by the following:
Does human flourishing require that there be a moral concept which provides for
a moral territory that protects individualism and is both deontically universal and
irreducible? The answer is unequivocally yes. The natural end is an inclusive end
which allows for the morality of an action to be determined by whether an action
is an instance of the virtues that constitute it This is especially true for being
self-directed or autonomous, since this is the virtue which makes all other virtues
possible. (Utilitarianism/Deontology 50)
Essentially this is saying that Congress needs to uphold a deontological framework on a personal
level because only by doing that can we protect our sense as an individual and from that preserve
our ability to value anything at all. The second justification comes out of the nature of
deontology. Deontology is not incrementally good as is a Utilitarian framework but when applied
universally we reach a perfect end because when all people within a society follow a uniform
system of absolute morality there is no conflict (Kant). Therefore if at all possible we must try to
universally implement a deontological framework and the only actor capable of that is a
government (Kant). Thus we must implement deontology on a personal level to maintain our
autonomy and second on a universal level to reach a perfect and desirable end.
To see how ACP harms attorneys and society we must first see that autonomy is an
intrinsic part of deontological frameworks and why Congress must do its best to uphold it. First
autonomy is central to the idea of valuing. John Christman Ph.D. in philosophy and Professor at
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Pennsylvania State University states: to value anything (instrumentally or intrinsically) implies
the ability to make value judgments generally, the most fundamental of which is the
determination of what is morally valuable. Also we must understand that the disregard of
autonomy is impossible within a Kantian framework because: self-regard is not a contingent
psychological fact about us, but an unavoidable implication of the exercise of practical reason
(Christman). Finally, to substantially respect autonomy we must fully respect others autonomy to
the same degree in which we respect our own this is because:
So we owe to ourselves moral respect in virtue of our autonomy. But insofar as
this capacity depends in no way on anything particular or contingent about
ourselves, we owe similar respect to all other persons in virtue of their capacity.
Hence (via the second formulation of the Categorical Imperative), we are obliged
to act out of fundamental respect for other persons in virtue of their autonomy.
(Christman)
From this we clearly derive that within an ideal deontological framework we have to fully
uphold our own and other autonomy to satisfy the ethical conditions created by Kant. We need to
uphold autonomy in order to preserve our ability to value and because autonomy is inherent to
reasoning. This does not mean to fully give each person full unrestricted autonomous control
because clearly that is not what governments do (compulsory education, taxes, the draft, etc.).
Simply put this mean that we do not unnecessarily violate autonomy, violate autonomy is such a
way that it become an internal violation of personal worth and we dont violate it in a way that
forces morally reprehensible action (Kant).
Now from this we can derive the first place were ACP violates our deontological
framework, the attorneys. When attorney violate ACP they are met with severe penalties that can
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go even as far as losing their status as an attorney. This is clearly shown in a rule from the
Georgia state bar: A lawyer shall maintain in confidence all information gained in the
professional relationship with a client The maximum penalty for a violation of this Rule is
disbarment. ("Rule 1.6 Confidentiality of Information.") So in essence ACP forces lawyers to
either outright lie or lie by omission. In a Kantian world of moral evaluation lying is very clearly
a morally reprehensible act. Lying is morally wrong because considering the basic Kantian
principle of upholding human worth me must as proven above uphold autonomy. Lying violates
this in two ways shown here:
Lies are morally wrong, then, for two reasons. First, lying corrupts the most
important quality of my being human: my ability to make free, rational choices.
Each lie I tell contradicts the part of me that gives me moral worth. Second, my
lies rob others of their freedom to choose rationally. When my lie leads people to
decide other than they would had they known the truth, I have harmed their
human dignity and autonomy. (Mazur)
So once we can see this clear link between ACP and a direct and clear violation of an ideal
Kantian framework we can reject it all together just on that premise; the premise that ACP
violates not only an attorneys autonomy and personal worth but also the personal worth other
people that are also involved in the legal system. This is caused by the fact that being forced to
lie not only violates your personal worth but also that when you lie other people who would have
made a certain decision knowing that information now make different, possibly incorrect, choice
thus violating their personal worth too (Mazur). This creates a system that not only directly
causes these violations but perpetrates further violations because it furthers lies and creates
misinformation.
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The second place where ACP violates a Kantian framework is in the defendant. A just
and therefore moral system (applying the simplifying assumption that justice and morality are
essentially equivalent) would acquit all the innocent and convict all the guilty but ACP prevents
this. ACP leads to cases where innocent members of society are wrongfully convicted and that
that wrongful conviction is entirely preventable. It prevent true justice from being carried out and
leads to trials based on merit of lawyers and arbitrary rules rather than the actual truth
(Rosenbaum). A good example is the Lee Wayne Hunt Case:
Lee Wayne Hunt, along with his co-defendant, Jerry Cashwell, were convicted in
separate trials of the murders of Roland and Lisa Matthews Hunt's co-
defendant, Cashwell, committed suicide in prison. After Cashwell's suicide, the
public defender who had represented him at trial, Staples Hughes, came forward
with the information that during Cashwell's trial for the murders of the Matthews,
Cashwell had told Hughes that he had single-handedly killed the Matthews
without the help of Hunt. Hughes had held this secret for twenty-two years, bound
by the attorney-client privilege. Judge Thompson refused to consider the
evidence offered by Hughes, writing in his opinion that Hughes had committed
professional misconduct. Hunt remains in prison. (Moliterno 820-21)
Here we see a clear, direct and empirical case. A case were a man was wrongfully convicted and
the evidence to exonerate him existed but was hidden for years and then once brought forward
rejected all on the premise of ACP. The wrongful conviction of even one person means the
complete and total loss of that persons autonomy and self-worth by imprisoning them
wrongfully and that one case completely destroys the morality of our system. Not because he
was wrongfully convicted, thats unavoidable, but that even though we could have clearly
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exonerated him, we did not. So to make our system consistent with our deontological framework
we must abolish ACP.
Either one of the above cases are enough ground to reject ACP and abolish it. The first
violation, forcing attorney to lie, gives us a clear warrant as to why on an individual level we
need to reject ACP in order to maintain the personal worth and value of all individuals who are
active in the US justice system. The second violation, wrongful convictions, show us another
individual violation but also a more universal violation as it prevents our justice system from
being truly effective and carrying out true justice. We see that the US in order to reach a
desirable end must act within the confines of a deontological framework and then in order to
remain consist with such a framework reject ACP. If we do not, we will see a breakdown of this
framework which leads to violations of personal worth, dehumanization and further impacts as
our sense of morality and our system to evaluate it break down. For those reasons the US federal
government ought to and must reject the attorney-client privileges and abolish them completely.

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Works Cited
Christman, John. "Autonomy in Moral and Political Philosophy." Stanford University. Stanford
University, 28 July 2003. Web. 23 Jan. 2014.
<http://plato.stanford.edu/entries/autonomy-moral/>.
Kant, Immanuel. Great Books of the Western World: Kant. Trans. J. M. D. Meiklejohn, Thomas
K. Abbott, W. Hastie, and James C. Meredith. 1st ed. Vol. 42. Chicago: Encyclopedia
Britannica, 1952. Print.
Mazur, Tim C. "Lying." Issues in Ethics 6.1 (1993): n. pag. Web. 23 Jan. 2014.
<http://www.scu.edu/ethics/publications/iie/v6n1/lying.html>.
Moliterno, James E. "Rectifying Wrongful Convictions: May a Lawyer Reveal Her Client's
Confidences to Rectify the Wrongful Conviction of Another?" Hastings Constitutional
Law Quarterly 38.4 (2011): 811-44. Hastings Constitutional Law Quarterly. Hastings
Constitutional Law Quarterly. Web. 22 Jan. 2014.
<http://www.hastingsconlawquarterly.org/archives/v38/i4/moliterno.pdf>.
Rosenbaum, Thane. The Myth of Moral Justice: Why Our Legal System Fails To Do What's
Right. New York: HarperCollins, 2004. 20-21. Planet Debate. Harvard Debate. Web. 23
Jan. 2014. <http://www.planetdebate.com/files/view/5958>.
"Rule 1.6 Confidentiality of Information." Handbook Content. State Bar of Georgia, n.d. Web.
27 Jan. 2014. <http://www.gabar.org/barrules/handbookdetail.cfm?what=rule&id=57>.
Utilitarianism/Deontology. Denton: Mean Green Workshops, n.d. PDF.