This Article argues that the Fourth Amendment protects confidential attorney-client communications from unreasonable government intrusion, including unreasonable court orders compelling production of attorney-client communications. The Article begins by focusing on the elements of a claim under the Fourth Amendment. Part II identifies the elements and subsequent sections address each element in the context of attorney-client communications. Part III considers the legitimate expectation of privacy in confidential attorney-client communications. Part IV addresses the search and seizure requirement, explores authority distinguishing between "actual" and "constructive" searches, and concludes that, in addition to searches, court-ordered production of attorney-client communications (a "constructive" search and seizure) can implicate the Fourth Amendment. Part V addresses the requirement of government action for a Fourth Amendment claim and analyzes the ways in which government action might exist in criminal and civil cases involving court-ordered disclosure or production of attorney-client communications. Part VI explores the reasonableness requirement of a Fourth Amendment claim and examines when an order compelling disclosure of an attorney-client can be unreasonable. Part VII identifies several circumstances in which jurisdictions' privilege rules are inconsistent and explains how Fourth Amendment protection of attorney-client communications in those circumstances could lead to consistent and predictable protection. Finally, Part VIII discusses why recognition of Fourth Amendment protection is a necessary and prudent means of protecting the reasonable expectation of privacy in attorney-client communications.
Clay Calvert, Misuse and Abuse of Morse v. Frederick by Lower Courts: Sretching the High Court's Ruling Too Far to Censor Student Expression, 32 SEATTLE U. L. REV. 1 (2008).