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The Contender
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Truth Seeking ought to take precedence over attorney client privilege

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Voting Style: Open Point System: 7 Point
Started: 11/13/2013 Category: Economics
Updated: 2 years ago Status: Post Voting Period
Viewed: 4,156 times Debate No: 40480
Debate Rounds (3)
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First round for acceptance . This will be a Lincoln Douglas debate, so LD format please.


First round for acceptance! I accept.
Debate Round No. 1


Our laws guarantee us certain privileges that no courtroom can take away. One of those essential privileges is the attorney-client privilege. The privilege to engage in confidential conversations with your lawyer, those conversations which are protected to ensure that the truth is told from the client. Attorneys cannot offer their clients the best defense possible if their clients feared that anything they told their lawyer could become public. Attorney-client privilege exists to promote societal values that come before the courtrooms pursuit of truth. That is why I strongly negate this resolution. Resolved : In the United States Criminal Justice System, truth-seeking ought to take precedence over attorney-client privilege.

I offer the following definitions from Oxford English Dictionary.

Attorney : A qualified lawyer, especially one who represents clients in court proceedings.

Client : Someone using professional services.

Right : An entitlement granted under law.

Ought : Used to express obligation or duty.

In today"s debate I will be valuing Societal Good. "The good of society after something happens" . The freedoms and duties in the bill of rights assure the societal good. In the United States where we have the Bill of Rights, there is a basic statement of freedoms subject to permitted abridgment of such freedoms. However these freedoms are restricted to ensure safety. We need the freedom to have attorney client privilege to ensure our society"s security and safety.

My value criterion today is that on Utilitarianism. "The most good for the most amount of people." Under utilitarian theory, privacy is an interest to be weighed against other societal interests, such as the furtherance of justice. The client will not feel free to disclose critical private information, if confidentiality is not assured. With truly protected communication, a greater trust will develop between the attorney and their client, and the client will be more likely to rely on their attorneys advice. This is especially crucial where a client reveals a future plan with illegal implications, such that the attorney acts as society"s safety net in discouraging the harmful plan. This presumably benefit"s the justice system more then it hinders it.

Now onto my contentions ..

Contention 1 : A society should restrict their ability to gain the truth in some cases in order to benefit the overall goals of the legal system.
Paul Rosenzweig, Senior Legal Research Fellow, The Heritage Foundation, Texas Review of Law And Politics, Fall 2002, p. 172.
The law may, at times, self consciously limit its search for truth, but it does so not because truth is inherently unrelated to the search for justice. Rather, as in the case of privileges, society has made the utilitarian judgment that certain restrictions on our ability to discern the truth in individual cases are of long-term benefit to the overall truth-seeking goals of the legal system. This kind of instrumental analysis, about which reasonable minds may differ, is a far cry from the deconstructionist view that all truth is relative.

Contention 2 : Attorney client privilege contributes to the fact finding process.
Deborah Stavile Bartel, Visiting Associate Professor of Law, Touro Law School, Brooklyn Law Review Winter 1995, p. 1365.
I justify the attorney client privilege by arguing that it contributes to the fact finding process of out adversarial system. The privilege encourages a client to reveal more relevant facts to his or her lawyers so that the lawyer is better able to develop a fuller factual record on behalf of the client. No person ever confesses guilt outright, so we rationalize this confidentiality because it is deemed essential to the lawyer"s performance of his or her role as advocate. Unless the client if free to disclose everything, good as well as bad, the lawyer cannot be properly prepared to defend or promote the client"s case. If the lawyer is able to prepare properly he or she will make better decisions about whether to maintain a case, assert a particular defense, or settle the case, The privilege, therefore, helps ease courts" burden in managing cases.

The attorney client privilege helps the Criminal Justice System more then it hinders it, by letting clients feel safe in confiding in their attorney, whether it be good or bad, that way the attorney is better able to defend the client. For these reasons and more, I strongly urge a negative vote.

I await your respone.(:


Resolved: In the United States criminal justice system, truth-seeking ought to take precedence over attorney-client privilege.

For the sake of clarity within the round, I provide the following definitions:

  • Criminal justice system is, according to the People’s Law Dictionary, a generic term for the procedure by which criminal conduct is investigated, arrests made, evidence gathered, charges brought, defenses raised, trials conducted, sentences rendered, and punishment carried out.”
  • Political is, according to the American Heritage Dictionary, ‘Of, relating to, or dealing with the structure or affairs of government, politics, or the state.’

My value for the round is political legitimacy, which is according to the Stanford Encyclopedia of philosophy, “a virtue of political institutions and of the decisions—about laws, policies, and candidates for political office—made within them.”

Encyclopedia Britannica explains the importance and relevance of legitimacy in a political system.

Britannica 1 states:

Gaining legitimacy is a need that is not restricted to liberal democratic regimes but is considered a basic condition of rule, because governing regimes without at least a minimal amount of legitimacy would face deadlock or collapse. Therefore, every regime seeks to justify its reign, and this justification can be based on various concepts. In history there have been competition and changes between different concepts of legitimacy. Traditionally, the reign of monarchs was justified on the grounds of their divine origin. The Enlightenment helped to challenge this religious source of legitimate rule, and democratic revolutions at and after that time declared the will of the people to be the basic source of legitimacy. In this context of modernization, Max Weber developed a typology of forms of legitimacy (legitimate authority) that is still one of the most important points of reference. He differentiated a traditional, a charismatic, and a legal-rational type of legitimacy. He basically diagnosed a historical transformation from traditional to legal-rational types of legitimacy, in which legitimacy based on the charisma of a (revolutionary) leader formed a transitory phenomenon.”

We ought to value legitimacy in the round because lacking even the least amount of legitimacy in any governing system means collapse. Since the benefits of truth-seeking are outweighed by the negative effects of a governmental collapse, legitimacy must come first.

Social theorist Max Weber explains political legitimacy through his three types of authority. Weber defines authority as ‘occurring when there is a probability that people will obey a specific command.’ In contrast, Weber defines legitimate authority as ‘occurring when people obey the authority because they regarded it as rightful.’ The authority types are the three essential ways that a government is legitimized.

The three types of authority are as follows:

  1. 1. Traditional Authority

A sociology textbook defines traditional authority.

Understanding Government states, “Traditional authority refers to a form of leadership in which authority derives from tradition or custom.”

In this form of authority, people obey voluntarily because it is something they have always known and how society has always functioned. Therefore, they believe it is right.

  1. 2. Charismatic Authority

Weber defines charismatic authority as, “Power legitimized on the basis of a leader's exceptional personal qualities or the demonstration of extraordinary insight and accomplishment, which inspire loyalty and obedience from followers.”

This character in the United States would be the president. While people may not agree with the president on something, they acknowledge the president’s authority and voluntarily bend to it.

  1. 3. Legal-Rational Authority

Sociologist Dana M. Williams explains legal-rational authority.

Williams states:

“Legal-rational authority is empowered by a formalistic belief in the content of the law (legal) or natural law (rationality). Obedience is not given to a specific individual leader – whether traditional or charismatic – but a set of uniform principles. Weber thought the best example of legal-rational authority was a bureaucracy (political or economic). This form of authority is frequently found in the modern state, city governments, private and public corporations, and various voluntary associations. In fact, Weber stated that the “development of the modern state is identical indeed with that of modern officialdom and bureaucratic organizations just as the development of modern capitalism is identical with the increasing bureaucratization of economic enterprise (Weber 1958, 3).”

Legal-rational authority applies specifically to the Criminal Justice System. People voluntarily bend to the law because they have faith in it.

Because all three types of authority must be legitimized by the people, and all governmental power is derived from the people, the criterion for the round will be rightfulness by the people.

I now state my contentions.

  1. 1. Attorney client privilege is legitimized through it being a custom.

Attorney client privilege has always been a tradition of the United States.

Andrew R. Nash of St. Mary’s Law School elaborates in St. Mary’s Law Review.

Nash states:

“The attorney-client-privilege is the oldest common law privilege pertaining to confidential communications. Indeed, as early as the sixteenth century, the privilege arose in response to Queen Elizabeth’s Statute Against Perjury, which compelled witnesses to attend trials. The expanding role of witnesses in establishing facts, coupled with the party’s inability to testify, gave rise to attempts to discover what party-opponents had revealed to their legal advisors. The necessity of safeguarding communications between clients and their legal counsel was recognized shortly thereafter.”

There are two arguments coming off of Nash.

  1. 1. Nash legitimizes attorney client privilege through traditional authority.
  2. 2. The United States has never lacked attorney client privilege, so there is no empirical evidence showing the United States specifically would be better off.

2. Attorney client privilege legitimizes legal-rational authority.

A. Attorney client privilege benefits society as a whole.

Peter Joy, co-director of the Criminal Justice Clinic at Washington University explains.

Joy states:

“Confidentiality, a key aspect of the attorney-client relationship, is essential to building trust between client and lawyer. Confidentiality encourages lawyers to seek and clients to provide full information about the representation. Confidentiality, it is argued, serves both clients and society since open communication enables the lawyer to represent the client effectively and gives the lawyer the opportunity to counsel the client against wrongful behavior. Exceptions to confidentiality arguably erode both lawyer and client incentives to seek and provide information, and thus threaten to undermine the quality of legal representation and the good it provides to society.”

This links to the next subpoint.

B. Citizens submit to an authority they trust and that benefits them.

John T. Floyd Law Firm explains.

Floyd states:

“No rational client facing criminal investigation would provide an attorney—one either consulted or retainedwith information implicating herself in criminal wrongdoing. It is imperative that an attorney know the level of criminal exposure his client faces. An investigation for possible defenses typically cannot begin until the client is forthcoming about the facts surrounding the case and her involvement in any potential criminal wrongdoing—and that will be achieved only if the client believes his privileged communications with the attorney are absolutely protected from disclosure (pg. 1).”

Legal-rational authority is only legitimate because the citizens voluntarily submit to it. Attorney client privilege allows for this voluntary submission by giving clients the desire to disclose.

Max Weber reasoned that political legitimacy could only come from the voluntary obedience of the people to authority. Because voluntary obedience is achieved through both traditional authority and legal-rational authority only by attorney client privilege, truth-seeking does not take precedence over attorney client privilege.

I now move on to my opponent's case.

Unfortunately, my opponent's case is actually a negative case, so I don't have to debate any of it because it contradicts the pro position itself. The whole case can just be flipped. It's an unfortunate mistake.

Debate Round No. 2


NorthDebater forfeited this round.


Extend all argumentation.
Debate Round No. 3
No comments have been posted on this debate.
2 votes have been placed for this debate. Showing 1 through 2 records.
Vote Placed by Ragnar 2 years ago
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Total points awarded:04 
Reasons for voting decision: Pro only having one round trashes their argument; leaving con's case unquestioned (basically turning this into a single round argument). Plus the forfeited round, which is pretty rude.
Vote Placed by thett3 2 years ago
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Total points awarded:04 
Reasons for voting decision: Due to the forfeit, cons case goes entirely undisputed. Clear decision