public interests or substantial rights outweigh the purely sentimental considerations of the parties.
Prior to the extensive codification of the law, which characterizes modern Western society, English common law also held confidential communications between parties in certain types of relationships to be privileged for the purpose of giving evidence. The historic test for evaluating whether a communication was privileged was: 1) The communication must have originated in a confidence it would not be disclosed; 2) this element of confidentiality must be essential to the full and satisfactory maintenance of the relations between the parties; 3) the relationship must be one which, in the opinion of society, ought to be sedulously fostered; and 4) the injury which would inure to the relationship by the disclosure of the communication must be greater than the benefit which would be gained by the correct disposal of the litigation. As will be seen below, English common law established evidentiary privilege only in the attorney-client relationship and in certain matters originating from the sovereign or government. The privileges for the physician-patient and clergy-penitent relationships were created later by statutes.
Confidential Communications between Attorney and Client
Traditionally, Anglo-American common law recognized the confidential nature of the attorney-client relationship as necessary for promotion of the public interest. Specifically, a lawyer has always been considered to have a duty towards his or her client to keep confidential the communications which pass between them. Maintaining this "duty of secrecy" induces clients to seek legal representation when they need it and encourages them to make "full and frank" disclosures of their relevant circumstances to their attorneys. In turn, this encouragement of lay persons to seek professional legal assistance enhances the administration of justice, a strong public in...