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THE DYNAMIC ATTORNEY-CLIENT PRIVILEGE

Gregory C. Sisk* Pamela J. Abbate**


The proliferation of legal rules and the growth of government regulation have left very few aspects of human activity and relationships untouched by law. For these reasons, the categories of matters that may come within the scope of legal representation today are very broad indeed. Even persons not contemplating litigation, considering a transaction, or seeking preparation of a legal document may seek the advice of a lawyer about the legal implications of diverse forms of human conduct and associations. To provide effective representation, the lawyer in contemporary American society may need to bring to bear expertise, knowledge, skills, and services beyond what traditionally was regarded as legal in nature. Under modern circumstances, when a matter having a legal dimension is brought to a lawyer, the animating purpose of the attorney-client privilege is best realized by allowing the lawyer and client to fully explore both legal and non-legal aspects in an integrated manner. And if we wish to encourage lawyers and clients to engage in moral deliberation, the confidential shield of the privilege must cover introduction of such non-legal principles into the discussion. Accordingly, the contours of the attorney-client privilege should adjust proportionally with the dynamic changes in the practice of law and lawyer counseling.

I.

INTRODUCTION

After nearly one hundred years of general stability in the practice of law in the United States, the latter part of the twentieth century sparked extraordinary changes that will have a lasting impact on the structure of the legal profession and the ways in which lawyers approach their

Orestes A. Brownson Professor of Law, University of St. Thomas School of Law (Minnesota) (gcsisk@stthomas.edu). For comments on an earlier draft, but reserving all responsibility for the final version to themselves, the authors thank Tom Morgan, Ron Rotunda, Paul Rice, Michele Beardslee, Neil Hamilton, Tom Mengler, Lyman Johnson, and Rob Vischer. ** J.D. Candidate, 2009, University of St. Thomas School of Law (Minnesota).

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practices.1 And those changes necessarily change the scope of the attorney-client privilege as well. As the practice of law emerged in England as one of the original professions,2 lawyers acted primarily as barristers in court, advocating on behalf of their clients at trials before judges and juries.3 Early in the history of the profession, attorneys and solicitors also became valued for their skills in drafting elemental legal documents such as pleadings, deeds, wills, and trusts.4 Beginning in the middle of the nineteenth century, lawyers in America moved in greater numbers beyond the courtroom to prosper as commercial lawyers in the post-Civil War economic boom. As corporate businesses fourished, lawyers became business as well as legal advisors and drafted specialized documents such as corporate charters, financial agreements, and tax avoidance plans.5 And so matters stood for about a century. In the latter part of the twentieth century, as the world of human activity became more complex, so also did the law.6 By the turn of the century, for a growing number of Americans, it had become extremely difficult to navigate through the legal web that surrounds their lives.7 In turn, the attorneys practice has expanded from trying cases in a courtroom to providing general advice to clients about the legal risks and advantages of proposed projects, contemplated actions, and planned relationships. As the
James W. Jones, The Challenge of Change: The Practice of Law in the Year 2000, 41 VAND. L. REV. 683, 683 (1988) (Some twenty years ago the legal profession was remarkably stable, having changed little in the preceding 100 years.). 2 On the law as a profession and vocation, see generally Neil W. Hamilton, The Future of CallingsAn Interdisciplinary Summit on the Public Obligations of Professionals into the Next Millennium, 25 WM. MITCHELL L. REV. 45 (1999). For a general discussion of what it means to to say that the law is a profession, including certification, peer review, control of competition and advertising, public service, and fiduciary responsibilities, see RONALD D. ROTUNDA & JOHN S. DZIENKOWSKI, PROFESSIONAL RESPONSIBILITY: A STUDENTS GUIDE 1-6, at 29-40 (2008-09). 3 GEOFFREY C. HAZARD, JR. & DEBORAH L. RHODE, THE LEGAL PROFESSION: RESPONSIBILITY AND REGULATION 21 (3d ed. 1994); Charles L. Brieant, Is It the End of the Legal World as We Know It?, 20 PACE L. REV. 21, 23 (1999). 4 HAZARD & RHODE, supra note 3, at 21; Brieant, supra note 3, at 23. 5 LAWRENCE FRIEDMAN, A HISTORY OF AMERICAN LAW 633-35 (2d ed. 1985); Brieant, supra note 3, at 23. 6 See Jones, supra note 1, at 684-85. 7 Soha F. Turfler, Note, A Model Definition of the Practice of Law: If Not Now, When? An Alternative Approach to Defining The Practice of Law, 61 WASH. & LEE L. REV. 1903, 1904 (2004) ([W]e are all subject in our social and working lives, to a body of legal rules and principles that is so vast, diverse, and complicated that no one can understand their full applicability and impact. (citing RICHARD SUSSKIND, THE FUTURE OF LAW: FACING THE CHALLENGES OF INFORMATION TECHNOLOGY 13 (1996))).
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law has grown to pervade nearly every nook and cranny of human society, the role of lawyers has magnified within the business and economic world, with attorneys structuring deals, negotiating contracts, advising on regulatory compliance, and consulting on environmental matters.8 Beyond the fast-changing economic situation, social and cultural revolutions have required lawyers to play expanding roles and offer additional or even interprofessional services in fields like family and elder law that directly affect human thriving and intimate relationships.9 As a result of the extraordinary changes in the economy and society and complementary complexities in the law, the range of services offered by todays lawyers to their clients is far broader and more diverse than at any previous time in the history of the legal profession.10 Although the place and responsibility of the lawyer was once fairly well defined,11 the lawyers professional role can no longer be delineated with precision, in substantial part because the line between legal and non-legal matters can no longer be easily drawn. One commentator observes that, in years past, one could distinguish with relative ease between legal matters on which the lawyer focused and business matters that were the province of the client.12 The line between legal and non-legal subjects has become blurred, and a lawyer is almost as likely to be focusing on economic, scientific, financial, or political questions as on strictly legal issues.13 At the same time that upheavals in the economy and society have provoked an expansion of the law and changes in the scope of legal practice, the legal profession has been engaged in a concerted effort, led by both members of the practicing bar and legal academics, to rediscover the traditional role of the lawyer as moral counselor.14 In offering what perhaps was the original law-related service,15 lawyers always have been encouraged to refer not only to the law but to other considerations such as moral, economic, social and political factors, that may be relevant to the clients situation.16 The blurred line between legal and non-legal subjects
See infra Part II.B & C (discussing the changing role of lawyers in corporate and environmental law). 9 See infra Part II.A & D (discussing the changing role of lawyers in family and elder law). 10 For examples of the expansion of the practice of law, see infra Part II. 11 See Jones, supra note 1, at 684. 12 Id. 13 Id. at 684-85. 14 See infra Part IV.B. 15 MODEL RULES OF PROFL CONDUCT R. 5.7 (2008) [hereinafter MODEL RULES] (establishing the lawyers ethical duties with respect to law-related services). On law-related services, see infra Part IV.A.2. 16 See MODEL RULES R. 2.1.
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should be understood to refer not only to the growing interconnection between legal and economic matters but also to the longstanding and commendable integration of legal sanctions with moral principles when lawyers counsel clients.17 The attorney-client privilege allows clients to communicate concerns about their legal problems with their legal counselors, without fear that the communication might subsequently be used as evidence against them.18 It is the clients pursuit of legal advice that triggers the privilege. By contrast, when a person contacts a lawyer for mere extra-legal purposes or communicates with a lawyer for reasons other than seeking legal advice to a legitimate end, the privilege does not attach or may be lost. Yet, the categories of matters that come within the scope of legal representation today may be very broad indeed.19 The growth of legal rules and the proliferation of government regulation have left very few aspects of human activity and relationships untouched by law. Even persons not contemplating litigation, considering a transaction, or seeking preparation of a legal document nonetheless may seek the advice of a lawyer about the legal implications of diverse forms of human conduct and associations. To provide effective representation, the lawyer may need to bring to bear expertise, knowledge, skills, and services beyond what traditionally was regarded as legal in nature. As the scope of the practice of law expands, so also should the defining compass of the attorney-client privilege (and the attendant expectations of attorney confidentiality).20 When a matter with a meaningful legal dimension is brought to a lawyer, the courts increasingly recognize that the animating purpose of the attorney-client privilege is best realized by allowing the lawyer and client to fully explore both legal and non-legal aspects in a holistic manner. In addition, if we wish to encourage lawyers and clients to engage in moral deliberation, the confidential shield of the privilege must cover introduction of such non-legal principles into the discussion.21 Accordingly, the scope of the privilege should correspond to the dynamic changes in the practice of law. As the parameters of what constitutes the practice of law expand, together with the introduction of law-related services, the contours of the attorney-client privilege should be adjusted proportionally.
See infra Part IV.B. On the attorney-client privilege and its general elements, see infra Part III. 19 On the expansion of the practice of law, see infra Part II. 20 On the attorney client privilege as applied to the expanding nature of the practice of law, see infra Part IV.A. 21 On moral deliberation and the attorney-client privilege, see infra Part IV.B.
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II.

THE EXPANDING SCOPE OF THE PRACTICE OF LAW


Go back into the history of our profession . . . in this country, and you will find a time when we were small in numbers and restricted by law and custom as to what we could do for our clients . . . . We did very little by way of business services; taxation was simple in the first century of our nations history. Enterprises were smaller, bookkeeping was not a big deal, and businessmen did not seek business advice either from lawyers or accountants. . . . Events of the last fifty years have had the effect of raising the comparative standing of lawyers, both financially and in the quality and extent of the services they offer. (Judge Charles L. Brieant, United States District Court for the Southern District of New York)22

In the modern world, lawyers act in multiple capacities to protect the legal interests of their clients and provide comprehensive counseling about the nature and requirements of the law. As was the traditional role of the attorney, a lawyer may be an advocate, in court or another forum, who zealously asserts the interests and promotes the positions of his or her client. With the increasingly omnipresent intrusion of the law into every nook and cranny of human activity, a lawyer may serve as a general advisor, who translates the generality of the law into specifically-applicable information for the client so that the client may conform his or her behavior to the expectations of the law, plan for the future, or invoke the protections of the law.23 Because of expertise and experience in advocacy as well as an educated understanding of the legal implications underlying business and other transactions, the lawyer may serve as a negotiator, who seeks a result legally advantageous to a client while dealing honestly with others in reaching an agreement.24 When the client seeks to assess the state of its
Brieant, supra note 3, at 21-22. See ROBERT H. ARONSON & DONALD T. WECKSTEIN, PROFESSIONAL RESPONSIBILITY IN A NUTSHELL 4 (2d ed. 1991) (Of great importance to a law-abiding society is the role that lawyers play in individualizing the essential generality of the law.). 24 Richard W. Painter, The Moral Interdependence of Corporate Lawyers and Their Clients, 67 S. CAL. L. REV. 507, 547-48 (1994) (explaining that in negotiations, [l]awyers skills are required to recognize where legal advantages can be found and to determine what they are worth); E. Norman Veasey & Christine T. Di Guglielmo, The Tensions, Stresses, and Professional Responsibilities of the Lawyer for the Corporation, 62 BUS. LAWYER (Nov. 2006), at 1, 27 (describing negotiation as a classic and traditional function of a lawyer). But see Georgia-Pacific Corp. v. GAF Roofing Mfg. Corp., No. 91 Civ. 5125 (RPP), 1996 WL 29392, at *4 (S.D.N.Y. Jan. 25, 1996) (holding that, while negotiating the environmental terms of a
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legal affairs or another person seeks a review of a clients legal situation before entering a transaction, the lawyer may serve as an evaluator who investigates and reports on the clients situation.25 In undertaking any of these professional responsibilities, the lawyer is held to a standard of competence, which today often requires more than formal legal training and facility with the traditional sources and processes of the law. While the lawyers legal advice and assistance remains at the heart of his or her distinct professional role,26 legal counsel frequently is of value only when integrated with the lawyers evaluation of other factors of practical, economic, emotional, or moral importance to the client. As a federal court of appeals remarked recently:
The complete lawyer may well promote and reinforce the legal advice given, weigh it, and lay out its ramifications by explaining: how the advice is feasible and can be implemented; the legal downsides, risks and costs of taking the advice or doing otherwise; what alternatives exist to present measures or the measures advised; what other persons are doing or thinking about the matter; or the collateral benefits, risks or costs in terms of expense, politics, insurance, commerce, morals, and appearances.27

To be such a complete lawyer, the attorney must be a jack-of-alltradesor at least sufficiently grounded in the real-world circumstances of the field of law to which he or she devotes the law practice. Legal advice offered in the abstract, formulated in the splendid isolation of a law library and drawing only on the texts and sources of the legal discipline, may fail to connect with the needs of the client for relevant guidance that leads to an informed decision. [I]n todays litigious, regulated, complicated world,

contract, the in-house lawyer was not exercising a lawyers traditional function and instead was acting in a business capacity); PAUL R. RICE, ATTORNEY-CLIENT PRIVILEGE IN THE UNITED STATES 7.8 (2d ed. 1999) (arguing, with citation to cases, that [w]hen negotiating terms and details of a business transaction, the lawyer acts as a business agent for his client and communications between the attorney and client relating to those negotiations are not privileged). 25 See MODEL RULES R. 2.3 (addressing the professional responsibilities of a lawyer in provid[ing] an evaluation of a matter affecting a client for the use of someone other than the client). 26 See RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS 72 cmt. b (2000) (stating that, for purposes of the attorney-client privilege, [a] lawyers assistance is legal in nature if the lawyers professional skill and training would have value in the matter). 27 In re County of Erie, 473 F.3d 413, 420 (2d Cir. 2007).

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Michele Beardslee says, lawyers sometimes have to look outside the box to form legal opinions.28 As the long arm of the law has extended ever farther and as the line between legal and non-legal matters correspondingly has softened, the range of services provided by lawyers has simultaneously changed and expanded. Professional services regarded as non-legal only a few decades ago may be essential elements of effective legal representation today. To be competitive in the legal market and to be competent in serving clients, many law firms must offer more than those traditional legal services of drafting legal documents and conducting litigation. Law firms today may provide auxiliary services that include anything from environmental consulting to human resources outsourcing, real estate title services to money management.29 By necessity, driven by the increased complexity of both the law and of the human activities and relationships subject to law, lawyers have become specialists in discrete fields and have adopted interdisciplinary approaches to issues that straddle the lines between law and business, law and technology, or law and social concerns.30 Thus, [f]or example, a real estate transaction that once required little more than a working knowledge of contracts and property law may now involve problems of environmental science or engineering, tax and zoning issues, intricate financial arrangements, questions of insurance and professional liability.31 Specialization, creative problem-solving, and interdisciplinary solutions permeate the practice of law today. The discussion below draws upon four fields of practicefamily law, corporate law, environmental law, and elder lawto illustrate the general and wide-reaching evolution of professional services provided by lawyers today.

Michele DeStefano Beardslee, The Corporate Attorney-Client Privilege: Third Rate Doctrine for Third Party Consultants, SMU L. REV. (forthcoming 2009). 29 Working Notes: Deliberations of the ABA Committee on Research About the Future of the Legal Profession on the Current Status of the Legal Profession, 17 ME. BAR J. 48, 56 (2002). 30 See Jones, supra note 1, at 685 (This complexity has led to more specialization within the practice of law and has spawned an interdisciplinary approach to problem solving that would have been rare twenty years ago). 31 Is Ancillary Business the Future?, PROF. LAW., Summer 1989, at 1 (internal quotation marks omitted).

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A.

Family Law

Over the past half century, changes in social norms and responsive developments in family law have greatly contributed to the expanding role of lawyers in the lives of many Americans. Traditionally, family disputes were considered private matters to be addressed within the family or other informal social groups, without public intervention.32 Today, however, married and unmarried couples and families with children regularly turn to, or are brought inside, the legal system to resolve disputes.33 Although lawyers practicing family law still rely on the basic set of lawyering skills, modern family law practice also requires multiple knowledge bases and competencies, particularly with respect to balancing advocacy and counselor roles.34 Increases in divorce filings, custody battles, petitions to terminate parental rights, and paternity proceedings have dramatically altered an attorneys role in the practice of family law. To competently and conscientiously serve clients today, the family law practitioner must know far more than the law.35 The family law attorney must possess
strong interpersonal skills like listening, negotiation, and working with clients in emotional crisis, as well as keen understanding of financial issues in family law, the impact of separation and divorce on children, and the ethical dimensions of family law practice.36

In addition, the successful family lawyer needs training in child development and family processes. By both knowing the legal standards and being able to draw upon the wisdom mental health professions have accumulated about children and human nature from years of study, supervision, research, and analysis, the family law practitioner will better
Ann Laquer Estin, Family Governance in the Age of Divorce, UTAH L. REV. 211 (1998) (citing Kilgrow v. Kilgrow, 107 So. 2d 885, 888 (Ala. 1958), in which the court refused to intervene in a dispute between divorced parents over whether their child should attend public or parochial school; and McGuire v. McGuire, 59 N.W.2d 336, 342 (Neb. 1953), in which the court stated that the living standards of a family are a matter of concern to the household, and not for the courts to determine). 33 See Marsha Kline Pruett, Mental Notes: Reform As Metaphor and Reality, 44 FAM. CT. REV. 571, 571 (2006); see also Robert J. Sheran & Douglas K. Amdahl, Minnesota Judicial System: Twenty-five Years of Radical Change, 26 HAMLINE L. REV. 219, 328-36 (2003) (reporting comments of judges and practitioners on the changing role of Minnesota courts on family law matters in recent decades). 34 Pruett, supra note 33, at 572. 35 Timothy Hedeen & Peter Salem, What Should Family Lawyers Know? Results of a Survey of Practitioners and Students, 44 FAM. CT. REV. 601, 601 (2006). 36 Id.
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be able to avoid or respond to contention in sensitive situations, such as disputes about child custody or access.37 Moreover, the field of family law has evolved away from a highly adversarial system.38 Family lawyers serve their clients today as mediators, arbitrators, collaborative lawyers, cooperative lawyers, and parenting coordinators, bringing to bear extensive knowledge and hard-won experience in family dispute resolution.39 For example, Bruce Winick describes Therapeutic Jurisprudence, which is particularly well-suited to the family law area, as suggesting the need for law makers and law appliers to be sensitive to the laws impact on [the] psychological health of clients and others involved in the legal system.40 By expecting lawyers (and other legal actors) to perform their roles with an awareness of basic principles of psychology,41 therapeutic jurisprudence is yet another way in which meeting the real needs of clients demands a broadened conception of the professional role.42 Prominent among the skills necessary for the modern family law practitioner, and lawyers in many other fields as well, is the ability to provide effective counseling about non-legal considerations. One commentator notes:
Lawyers must often be more than lawyers. As they have for centuries, lawyers face clients family problems, business problems, and life problems, which lead lawyers at times to go beyond the legal issues and counsel clients on the moral, economic, and other nonlegal factors affecting their situations.43

Counseling by lawyers that extends to factors not traditionally designated as legal is especially common in family law because it is essential to the health of the attorney-client relationship, the success of the representation, the achievement of the clients personal objectives, and the effectiveness of the family law dispute resolution system. For example, the
Pruett, supra note 33, at 573. Hedeen & Salem, supra note 35, at 601. 39 See id. at 602. 40 Bruce J. Winick, Redefining the Role of the Criminal Defense Lawyer at Plea Bargaining and Sentencing: A Therapeutic Jurisprudence/Preventive Law Model, 5 PSYCHOL. PUB. POLY & L. 1034, 1039 (1999). 41 Id. 42 Bruce J. Winick, Using Therapeutic Jurisprudence in Teaching Lawyering Skills: Meeting the Challenge of the New ABA Standards, 17 ST. THOMAS L. REV. 429, 439 (2005) (Lawyers embracing this broadened conception of the professional role must strive to avoid or minimize imposing psychologically damaging effects on their clients.). 43 Larry O. Natt Gantt, II, More Than Lawyers: The Legal and Ethical Implications of Counseling Clients on Nonlegal Considerations, 18 GEO. J. LEGAL ETHICS 365, 365 (2005).
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American Academy of Matrimonial Lawyers (AAML) encourages lawyers to counsel their clients on multiple non-legal aspects of the divorce process.44 Standard 1.2 of the Competence and Advice section of the AAML Bounds of Advocacy states: An attorney should advise the client of the emotional and economic impact of divorce and explore the feasibility of reconciliation.45 While a family law attorney may have no formal obligation to attempt to save a clients marriage, family practitioners routinely explore the clients feelings about reconciliation early in the client relationship.46

B.

Corporate Law

Although extra-legal counseling on moral, social, and other matters pertinent to legal advice may emerge more readily when intimate personal matters are at stake, a more robust understanding of counseling by lawyers is hardly unique to family law. Sweeping changes in the modern competitive and global economy, forms and means of doing business, and regulatory environment have made it essential for lawyers who advise corporations and other business associations to evolve in their role and offer a broader array of legal and law-related services. The augmentation and amplification of law in our society has played a leading role in bringing about that transformation in the scope of corporate law practice. Richard Painter observes:
Just as the creation of railroads and a banking system in the nineteenth century was a legal as well as a business enterprise, legal risks in many of todays highly regulated industries like banking, insurance, airlines, and waste management have become business risks. Even apart from industry-specific regulation, regulation of almost every aspect of economic life such as the environment, health and safety, employment, and securities ensures that legal and business components of corporate decisions are often intertwined.47

Id. at 381. AM. ACAD. OF MATRIMONIAL LAWYERS, BOUNDS OF ADVOCACY, Standard 1.2 (Nov. 2000), http://www.aaml.org/files/public/Bounds_of_Advocacy.htm. 46 Linda S. Fidnick, Ethical Issues for Divorce and Family Lawyers, in I ETHICAL LAWYERING IN MASSACHUSETTS, 17.5.1 (Mass. Cont. Legal Educ., Inc., 2007). 47 Painter, supra note 24, at 525; see also Upjohn Co. v. United States, 449 U.S. 383, 392 (1981) (In light of the vast and complicated array of regulatory legislation confronting the modern corporation, corporations, unlike most individuals, constantly go to lawyers to find out how to obey the law, particularly since compliance with the law in this area is hardly an
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The traditional role of corporate attorneys was legal counselor for business leaders.48 That role has expanded significantly, as the business and legal environment have changed. Business leaders today increasingly look to attorneys for not only legal but business advice as well.49 To be trite, because the business of business is business, the lawyer must be know the clients business and offer business-relevant advice if legal counsel is to have any practical value. The integration of law and business advice has social value as well. As Neil Hamilton reminds us, [o]ur profession plays a critical role in fostering and maintaining the foundation of moral capital on which trust in the economic system or in any individual enterprise rests.50 Without an understanding of a particular business, an appreciation of its culture and ethics, and an ability to shape advice to the business needs of the entity, a lawyers command of corporate law will be to little avail and the lawyers counsel will neither be useful in a practical sense nor serve to guide the business as a responsible and honorable economic actor.51 By necessity in todays regulatory, legal, and business climate, lawyers for business organizations also have become responsible for a variety of what traditionally were regarded as nonlegal tasks such as negotiating contracts, analyzing potential corporate transactions, and investigating potential claims.52 Yet in performing such tasks, which may be seen as non-legal if viewed in isolation or performed by someone other than a legally-educated professional, the lawyer evaluates each matter from a distinctly legal perspective, identifying the legal implications, verifying compliance with regulatory regimes, looking for the advantages and disadvantages offered or posed by legal standards, and assessing the legal risks.53 Because corporate clients expect their counsel to be familiar with
instinctive matter. (quoting Bryson P. Burnham, The Attorney-Client Privilege in the Corporate Arena, 24 BUS. LAW. 901, 913 (1969))). 48 Greg Billhartz, Cant We All Just Get Along? Competing For Client Confidences: The Integration of the Accounting and Legal Professions, 17 ST. LOUIS U. PUB. L. REV. 427, 434 (1998). 49 Michael A. Knoerzer, Attorney-Client Privilege and Work Product Doctrine, 31-WTR BRIEF 40, 41 (2002). 50 Neil W. Hamilton, Counseling the Post-Enron Corporation Using the Lawyers Independent Judgment, PROF. LAW., Winter 2003, at 24. 51 See id. 52 See Knoerzer, supra note 49, at 41. 53 See Veasey & Di Guglielmo, supra note 24, at 7 (explaining that corporate counsel perform the increasingly important function of assessing legal risks and translating those risks into business terms in order to facilitate decision making concerning those risks); Howard B. Miller, Law Risk Management and the General Counsel, 46 EMORY L.J. 1223, 1223 (1997) (The general counsel, comfortable in the world of business management and law, can translate

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economic, scientific, financial, or political issues, together with legal demands and limits, corporate attorneys have been forced to diversify to meet the demands of their clients.54 Non-legal counseling provided by lawyers to corporate clients attendant to providing legal advice and assistance extends beyond business, financial, and scientific factors to include moral and ethical issues. Especially in a post-Enron world, lawyers not only can but also should counsel clients on nonlegal issues, particularly moral concerns in corporate practice.55 Nor may such considerations legitimately be characterized as falling outside of the realm of corporate law. The American Law Institutes Principles of Corporate Governance state: Even if corporate profit and shareholder gain are not thereby enhanced, the corporation, in the conduct of its business, . . . may take into account ethical considerations that are reasonably regarded as appropriate to the reasonable conduct of business.56 The accompanying comment to this section of the Principles explains that [c]orporate officials are not less morally obliged than any other citizens to take ethical considerations into account, and it would be unwise social policy to preclude them from doing so.57 In sum, the nations leading law reform organization has offered a strong suggestion that lawyers offer their views on the non-legal issues surrounding the corporations legal decisions, views that corporate clients expect and welcome as part of an ethical legal representation.58

and mediate between the concepts of business risk and the vocabulary of the law). See also infra notes 101-103 and accompanying text. 54 Billhartz, supra note 48, at 435. 55 Gantt, supra note 26, at 366. For further discussion of moral deliberation as part of lawyer counseling in the corporate context, see infra notes 189-192 and accompanying text. 56 PRINCIPLES OF CORPORATE GOVERNANCE: ANALYSIS AND RECOMMENDATIONS 2.01(b)(2) (1994). 57 Id. cmt. h. 58 Gantt, supra note 26, at 381-382; see also Am. Corp. Counsel Assn, In-House Counsel for the 21st Century (2001), http://www.acc.com/Surveys/CEO/ (survey of 149 senior corporate executives of companies with 100 or more employees reporting that business corporations desire their counsel to serve roles beyond those traditionally regarded as legal, including, in the order of importance, being an educator on legal issues, ethics advisor, sounding board and confidant, compliance officer, and business/contract negotiator); Ben Heineman, Jr., Law and Leadership, 56 J. LEGAL EDUC. 596, (2006) (saying, as the former general counsel of General Electric, [w]e are seeking lawyers who think about the ethical, reputational, and enlightened self-interest of their client or the institution they are leading, not just about what is strictly legal or advantageous in the short term.).

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C.

Environmental Law

During the past quarter-century, mounting apprehension about the impact on the natural world by various human activities, especially manufacturing and land development, has prompted legislators to enact various directives and controls designed to protect the environment. Federal regulation of the environment involves a wide array of statutes, enacted intermittently over the last few decades as new concerns emerged, addressing different but related problems and not fully integrated as a cohesive scheme. Among the statutory landmarks in the environmental field are the Resource Conservation and Recovery Act,59 Comprehensive Environmental Response, Compensation, and Liability Act (Superfund),60 the Clean Water Act,61 and the Clean Air Act.62 Each of these statutes imposes duties upon various actors, including the government and business organizations, with respect to manufacturing practices, protection measures, control of pollutants, reports, etc. In addition to the potential of civil liability, federal (and state) statutes authorize criminal penalties, which prosecutors are increasingly willing to pursue against alleged violators of environmental protection laws.63 Thus, to assist persons and entities to comply with environmental laws, to represent citizens challenging governments and others for alleged failures to uphold environmental protection duties, and to defend citizens and businesses against civil or criminal charges of non-compliance, a growing number of lawyers specialize in environmental law. Environmental lawyers
counsel clients on environmental statutes and regulations, obtain environmental permits for clients, perform environmental due diligence in large mergers and acquisitions, negotiate or assist business lawyers in negotiating environmental provisions in corporate transactions, and represent clients in administrative hearings.64

Beyond an intimate familiarity with the intricate network of environmental statutes and regulations, the effective environmental lawyer
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42 U.S.C. 6961. 42 U.S.C. 9620(a). 61 33 U.S.C. 1251-1387. 62 42 U.S.C. 7401-7671q. 63 Jay G. Martin, Conducting a Successful Internal Environmental Investigation, in 3 ENVTL. LAWYER 734 (1999). 64 Daniel M. Steinway, Environmental Claims, 8 BUS. & COM. LITIG. FED. CTS. 95:2 (2d ed., 2006).

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may also possess advanced training, or at least a superior understanding gained through experience, in the scientific methods for studying environmental impact, the meaning of technical measurements, and the measures by which to reduce the effect of an activity on the environment. Thus, for example, a business enterprise facing the daunting task of identifying and obeying each part of the vast array of environmental laws may hire an environmental consultant to conduct an environmental audit to assess [a business entitys] compliance with environmental laws and determine any appropriate adjustments in procedure.65 The lawyer who specializes in environmental law may either possess the education and background to conduct the audit him or herself or have developed the experience and understanding to supervise the audit and appreciate the meaning of the results. When such an environmental audit is performed in conjunction with legal services, the resulting report is an essential element in providing an informed legal opinion.66 In sum, business enterprises, government regulators, and public interest organizations may prefer to hire lawyers who have specialized knowledge on environmental issues, both legal and technical, and who can directly provide or intelligently direct environmental consulting services. While these services have not always been considered legal, the regulatory regime today makes it absolutely necessary for the environmental lawyer to be conversant with scientific and technical information regarding the environment. Whether the lawyer as an interdisciplinary professional performs environmental services directly or instead obtains the assistance of a third party specialist to provide information that facilitates the lawyers legal counsel, such law-related services are increasingly essential to and often fused together with effective practice of environmental law.67 Not

Rebecca Fiechtl, Know When to Hold Em: Minimizing Disclosure of Corporate Environmental Information, 31 ENVTL. LAW 951, 952 (2001). 66 See Olen Properties Corp. v. Sheldahl, Inc., No. No. CV 91-6446-WDK (Mcx), 1994 WL 212135, at *1 (C.D. Cal., Apr. 12, 1994) (holding that consultants environmental audit, which was prepared to gather information for [the companys] attorneys to assist the attorneys in evaluating compliance with relevant laws and regulations, and thus had been prepared for the purpose of securing an opinion of law, was privileged and need not be produced in discovery). For further discussion of scientific reports and the privilege, including the nonprivileged nature of underlying factual evidence, such as raw data, see infra notes 165-166 and accompanying text. 67 See MLC Auto. LLC v. Town of Southern Pines, No. 1:05cv1078, 2007 WL 128945, at *1-4 (M.D.N.C. Jan. 11, 2007) (holding all communications between the lawyer and an independent engineer hired for the development of automobile dealerships were privileged because the engineering information facilitated the lawyers legal assistance with respect to regulatory requirements and obtaining necessary government permits).

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incidentally, environmental consulting is specified in the Model Rules of Professional Conduct as a law related service.68

D.

Elder Law

As Elder Law has come of age as a legal specialty,69 the services provided by lawyers who serve senior citizens have diversified to keep pace with new developments in the law affecting senior citizens and with our growing appreciation for and understanding of that segment of our population. Traditionally, legal representation of the older client consisted of little more than estate planning, which remains central to elder law today but has more dimensions of complexity than in the past. Today, a lawyer practicing in the elder law field must be knowledgeable about Medicare, Medicaid, Social Security, public benefits, long-term care, and advance directives.70 Moreover, an elder law attorney may encounter a wide range of legal issues sweeping across multiple fields of law, from age discrimination in employment and housing to options for ensuring control of ones financial affairs and finding the resources to pay for medical care and culminating with the direction of medical treatment in the final days of life. The lawyers role may include disability planning, asset management, asset dispersal, and navigating the slippery slope between mental and physical capacity and incapacity.71 To address one of the most pressing needs for many elderly clients, lawyers offer a service that might not have been considered legal in nature in a simpler era: helping clients qualify for public benefits to cover medical care while protecting assets to the extent legally permitted. For many of todays seniors, their predominant fear is that the costs of longterm care will burn up whatever assets individuals have been able to set aside for their retirementand their heirs.72 Qualifying for public benefits requires steering carefully through a Byzantine mix of federal and state rules that vary from jurisdiction to jurisdiction.73 Not surprisingly, and
MODEL RULES R. 5.7 cmt. [9]. On law-related services, see infra Part IV.A.2. Margaret Graham Tebo, Elder Law Grows Up: It Takes a Lot More Than a Little Estate Planning to Address the Increasingly Complex Legal Issues Facing Seniors, A.B.A.J., March 2002, at 42. 70 See id. 71 Steven H. Hobbs & Fay Wilson Hobbs, The Ethical Management of Assets of Assets for Elder Clients: A Context, Role and Law Approach, 62 FORDHAM L. REV. 1411, 1420 (1994). 72 Tebo, supra note 69, at 42. 73 Id.
69 68

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quite appropriately, clients turn to lawyers to provide a map to successful travel through the confusing maze. By assisting clients in making health care and end-of-life decisions, lawyers who practice in elder law have also taken on another new role, one infused not only with legal complexity but also with emotional delicacy. Elder law lawyers help clients prepare living wills (by which individuals attempt to control their medical care in the event that they become mentally incapacitated) and health care powers-of-attorney (which name a surrogate decision maker with authority to act in the event of the persons incapacity).74 When drafting these instruments, lawyers must ask clients probing questions about medical conditions and potential treatment, interjecting explanations about the situations that might arise, all while taking into consideration the clients moral and religious beliefs. The ensuing discussion may be extremely wide-ranging in subject and penetrating in nature. Although the lawyers deliberation with the client revolves around the preparation of legal documents, the lawyer must also be familiar with potential medical situations and be prepared to assist the client in identifying and evaluating moral and religious considerations. Within this dialogue, elder law attorneys often must counsel a client who is unprepared for or uncomfortable in talking about death. Moreover, when the client is a person of diminished capacity, the lawyer must display the respect and maintain the patience necessary to permit that person to participate to the extent possible in making important decisions about his or her life.75 The lawyer who undertakes representation of a person with diminished capacity must be prepared to devote greater personal attention, provide more detailed and repeated explanations, consult with other important persons in the clients life, accommodate the disabilities of the client, and consult professionals in other disciplines as appropriate. Indeed, a lawyer who is oblivious to the special needs of clients with diminished capacity could be disciplined under the professional responsibility rules.76

Id. at 44-45. On the lawyers professional responsibilities with respect to clients with diminished capacity, see MODEL RULES R. 1.14. 76 1 GEOFFREY C. HAZARD, JR. & W. WILLIAM HODES, THE LAW OF LAWYERING 18.4, at 18-9 (3d ed., 2005) (explaining that the chief mission of paragraph (a) of Rule 1.14 is simply to ensure that lawyers adequately think through the difficult problems associated with representation of clients with some form of diminished capacity, but that a lawyer who is oblivious to the special needs of clients with diminished capacity could be disciplined under the rule).
75

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Because of the nature of the issues an elder client brings to the office and the values implicit in elder law, this area of practice contemplates a unique role for the attorney.77 As Steven and Fay Hobbs explain:
The tasks confronting the lawyer are varied and complex and often require the use of non-legal skills such as counselling, reconciliation, and the sensitive chore of dealing with the emotions and fears of individuals facing the concluding chapters of their lives.78

In addressing core legal issues, the elder law practitioner may benefit from interprofessional collaboration,79 drawing upon such non-legal skills as psychological and social work counseling, either through the lawyers own supplemental professional training or by association with professionals in other disciplines.80 Jennifer Wright describes an interprofessional elder law clinic, in which counseling professionals (or counseling students) have become essential to identifying and addressing underlying problems which may give rise to repeating legal issues and, more generally, by provid[ing] a necessary support to clients who find the legal process intimidating, confusing, and stressful.81 In such an integrated practice, the provision of non-legal professional services may become intertwined with and vital to an effective and holistic legal representation. When such interdisciplinary services are performed for the purpose of obtaining legal advice or facilitating the legal representation, they become assimilated with the legal services.

III.

THE ATTORNEY-CLIENT PRIVILEGE AND THE COMMUNICATIONS TO WHICH IT APPLIES

In a society as complicated in structure as ours and governed by laws as complex and detailed as those imposed upon us, expert legal advice is essential. To the furnishing of such advice the fullest freedom and honesty of communication of pertinent facts
Hobbs & Hobbs, supra note 71, at 1428. Id. at 1420. 79 Jennifer L. Wright, Therapeutic Jurisprudence in an Interprofessional Practice at the University of St. Thomas Interprofessional Center for Counseling and Legal Services, 17 ST. THOMAS L. REV. 501, 501 (2005). 80 See Heather A. Wydra, Note, Keeping Secrets Within the Team: Maintaining Client Confidentiality While Offering Interdisciplinary Services to the Elderly Client, 62 FORDHAM L. REV. 1517, 1517 (1994) (An attorney serving the elderly client may need to work as part of an interdisciplinary team including physicians, psychologists, social workers, accountants, or clergy.). 81 Wright, supra note 79, at 507.
78 77

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is a prerequisite. To induce clients to make such communications, the privilege to prevent their later disclosure is said by courts and commentators to be a necessity. The social good derived from the proper performance of the functions of lawyers acting for their clients is believed to outweigh the harm that may come from the suppression of the evidence in specific cases. (American Law Institute, Model Code of Evidence Rule 210, Comment)82

The confidential nature of the attorney-client relationship is the foundation for everything the lawyer does.83 Because clients are guaranteed confidentiality, they are willing to share their most private thoughts and relate the most sensitive and embarrassing information, secure in the knowledge that what has been shared will be safeguarded.84 If the lawyer is to effectively and fairly represent the clientrich or poor, confident or vulnerable, well-educated or working class, sophisticated in legal affairs or unfamiliar with the legal systemthe lawyer must be able to instill trust. Confidentiality is the cornerstone of that trust. If the lawyer is to persuasively counsel clients to do the right thing, legally and morally, the lawyer must have full access to information from the client and be free to introduce a wide-range of topics and ramifications. The free flow of information between lawyer and client depends on the assurance of confidentiality. The traditional ethical directive to the lawyer to maintain the clients confidences85 is fortified by the additional security given to communications through the testimonial/evidentiary attorney-client By protecting this dialogue from outside intrusion or privilege.86 examination, the privilege serves the vital professional purposes of building
82

American Law Institute, Model Code of Evidence Rule 210, Comment (1942) (quoted in United States v. United Shoe Mach. Corp., 89 F. Supp. 357, 358 (D. Mass. 1950)). 83 See Geoffrey C. Hazard, Jr., An Historical Perspective on the Attorney-Client Privilege, 66 CAL. L. REV. 1061, 1061 (1978) (The attorney-client privilege may well be the pivotal element of the modern American lawyers professional functions.). 84 See Rossi v. Blue Cross & Blue Shield, 540 N.E.2d 703, 705 (N.Y. 1989) (saying that the attorney-client privilege foster[s] uninhibited dialogue between lawyers and clients in their professional engagements, thereby ultimately promoting the administration of justice). 85 See MODEL RULES R. 1.6 (directing the lawyer, as a matter of professional ethics, not [to] reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by the exceptions in the rule). 86 On the differences and relationship between the ethical duty of confidentiality and the evidentiary privilege for attorney-client communications, see generally Gregory C. Sisk, Change and Continuity in Attorney-Client Confidentiality: The New Iowa Rules of Professional Conduct, 55 DRAKE L. REV. 347, 360-64, 380-84 (2007).

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a strong attorney-client relationship and ensuring that the lawyer obtains the information necessary to serve the client well. In addition, by allowing lawyers and clients to engage with difficult problems by considering the full spectrum of legal and moral dimensions, the privilege also promotes the public interest in obedience to the rule of law and advancement of the common good.87 The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law.88 While the lawyer generally is obliged to protect all information relating to the representation and not voluntarily disclose such information,89 the lawyer nonetheless may be required to respond to a lawful subpoena or court order that seeks information outside the parameters of a legally-recognized privilege.90 But the lawyer should not be forced to divulge the substance of communications falling within a privilege and indeed must take appropriate steps to assert and competently advance a privilege in response to any request. Thus, the contents of communications between an attorney and a client constitute a specially-protected category of confidential information. The modern statement of the four basic elements of the attorney-client privilege is stated succinctly in the Restatement of the Law Governing Lawyers approved by the American Law Institute in 2000: (1) a communication (2) made between privileged persons (3) in confidence (4) for the purpose of obtaining or providing legal assistance for the client.91 By this understanding, attorney-client communications are preserved inviolate so clients can speak freely about their legal problems without fear
See infra notes 175-176 and accompanying text. Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). 89 See supra note 85. 90 See ROTUNDA & DZIENKOWSKI, supra note 2, 1.6-1, at 220-21 (describing the distinction between the ethical rule of confidentiality and the evidentiary privilege). 91 RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS 68 (2000). The traditional formulation of the attorney-client privilege contained eight elements: (1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his insistence permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived. 8 JOHN H. WIGMORE, EVIDENCE 2290 (McNaughton rev. 1961). The law has evolved to modify some of the traditional elements, for example, now including prospective as well as actual clients within the protection, RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS 15, 70 68 (2000); applying to communications with both professionals admitted to the bar and someone whom the client or prospective client reasonably thinks is a lawyer, ROTUNDA & DZIENKOWSKI, supra note 2, 5.5-5, at 988; and extending not only to communications by a client to a lawyer but also to the lawyers side of the conversation, thus including both up and downstream communications, 1 HAZARD & HODES, supra note 76, 9.7, at 9-26.
88 87

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that what is exchanged between the lawyer and client might subsequently be used as evidence against the client. When a person contacts a lawyer with the purpose of obtaining legal counsel, the communications that follow are privileged. It is the clients pursuit of legal advice or assistance that triggers the privilege.92 By contrast, when a person contacts a lawyer for extra-legal purposes or communicates with a lawyer for reasons other than seeking legal advice or assistance to a legitimate end, the privilege does not attach or may be lost. Conversations with people who happen to be lawyers do not come under the shield of confidentiality unless those conversations are a prelude to and become part and parcel of a legal representation. Thus, the lawyers chewing the fat with a friend or fishing buddy or chatting with a business acquaintance or neighbor will not be afforded the privilege93unless that person also seeks the lawyers legal advice or assistance. Despite these exceptions and limitations, when a client or prospective client talks with a lawyer, the substance of those communications is presumptively privileged.94 Both because of transformations in modern legal practice95 and to encourage moral deliberation between attorneys and clients as part of the legal representation,96 the attorney-client privilege should be understood to adjust dynamically with changes in the scope of the practice of law and to affirm a renewed appreciation of the moral essence of the attorney-client relationship.

IV. PRACTICAL AND MORAL REASONS FOR A DYNAMIC UNDERSTANDING OF THE ATTORNEY-CLIENT PRIVILEGE

92 See Fisher v. United States, 425 U.S. 391, 403 (1976) ([The privilege] protects only those disclosuresnecessary to obtain informed legal advicewhich might not have been made absent the privilege.). 93 See Payton v. New Jersey Turnpike Authority, 691 A.2d 321, 334 (1997) (An attorney who is not performing legal services or providing legal advice in some form does not qualify as a lawyer for purposes of the privilege.); Radiant Burners, Inc. v. American Gas Association, 320 F.2d 314 (7th Cir. 1963) ([I]t seems well settled that the requisite professional relationship is not established when the client seeks business or personal advice, as opposed to legal assistance.). 94 See infra note 196 and accompanying text. 95 See infra Part IV.A. 96 See infra Part IV.B.

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A.

The Attorney-Client Privilege and the Practical Reality of the Changing Scope of Legal Practice

In the traditional view of lawyering, lawyers provide legal services (and nothing else) to clients, while any professional services provided by non-lawyers are by definition not legal services. In reality, such a rigid separation has never been supportable, and there is no clear divide between a core of legal service and services that are ancillary or lawrelated. (Professors Geoffrey C. Hazard, Jr., and W. William Hodes)97

1.

The Expanding Scope of the Practice of Law and the Application of the Privilege

As our understanding of what services constitute and may be interwoven with the practice of law has changed, so also have the contours of the attorney-client privilege. With occasional lapses by some courts that relied on antiquated notions about what attorneys do,98 the judiciary generally and increasingly has recognized that the pragmatic application of the privilege must respond to the actuality of meaningful changes in the practice of law.99 Appreciating the attorney-client privilege as dynamic in nature requires that we open our eyes to the changes in the services provided by lawyers as part of legal representation in todays society. While the mere fact that a lawyer offers a service cannot animate a sterile non-legal matter into a living legal representation, the law of privilege cannot ignore the transformation and expansion of the practice of law in the modern world. The subject addressed in this essay is the prudent and judicious application of the attorney-client privilege to communications between the lawyer and the client about legal services offered within the setting of the modern law

2 GEOFFREY C. HAZARD, JR. & W. WILLIAM HODES, THE LAW OF LAWYERING 48.2, at 48-4 (Aspen, 3d ed., 2005). 98 See Grace M. Giesel, The Legal Advice Requirement of the Attorney-Client Privilege: A Special Problem for In-House Counsel and Outside Attorneys Representing Corporations, 48 MERCER L. REV. 1169, 1171 (1997) (speaking about in-house counsel). 99 See supra notes 27, 66-67 and accompanying text and infra notes 104, 108-112, 127128 and accompanying text.

97

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practice and law-related services engaged to facilitate the lawyers legal advice or assistance.100 The ubiquitousness of the law has necessarily expanded the class of matters on which legal advice is appropriate and altered as well the nature and breadth of the professional advice that will be offered.101 When a lawyer is asked to advise a client on a problem or a proposal, the line between what is legal and what is non-legal has shifted and blurred, with the legal and non-legal components frequently merging together as the lawyer offers a holistic analysis. Tasks that previously were performed by non-lawyers with minimum legal interferencesuch as formulating a companys personnel policies are now electrically charged with legal elementssuch as federal and state regulations governing discrimination, health and safety, pensions, and, more recently, sexual harassment and family leave.102 Thus, Richard Painter explains that the effective corporate lawyer is not merely an advisor or monitor but also a creative agent, who actually participate[s] in the formative stage of transactions, designing proposals to fit within legal parameters and then taking these proposals to clients for approval.103 Within a highly regulated industry, in which a broad range of business activities must be conducted in compliance with pervasive governmental regulations, even services that initially appear to be non-legal in nature,

By speaking of the practice of law as it evolves to serve clients in the modern world, this essay focuses on those services provided directly by a lawyer or by non-lawyer consultants to facilitate the work of a lawyer as part of a law practice addressing the legal needs of a client. On the attorney-client privilege as applied to third party consultants, see generally Beardslee, supra note 28, at 9, 63-84 (advocating a rule under which the privilege applies if there is a strong nexus between the consultants service and the legal advice ultimately provided to the client). Under Rule 5.4 of the Model Rules of Professional Conduct, a lawyer may not practice law in any arrangement under which a layperson holds a position of authority or control so as to intrude into the lawyers relationship with a client or to control or direct the lawyers exercise of professional judgment. MODEL RULES R. 5.4(b), (d). This essay does not address the implications of the privilege for what in most jurisdictions is a presently-unauthorized multidisciplinary practice that would join lawyers and professionals or service-providers in other disciplines as equal partners in a combined practice organization. A lawyer may employ another professional, such as a certified public accountant or a medical practitioner, to serve as part of the legal team, but only when that person remains a subordinate of the lawyer and is not placed into either a superior or co-equal position of authority, such as a partner, shareholder, or co-director of a law firm. On the managerial or supervisory lawyers responsibilities for nonlawyer assistances, see MODEL RULES R. 5.3. 101 See supra Part II. 102 Painter, supra note 24, at 537-38. 103 Id. at 544.

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like commenting upon and editing television ads and other promotional materials could, in fact, be legal advice.104 Lest a non-legal element should become the tail that wags the dog, a clear and significant nexus between attorney-client communications and legal advice or assistance is rightly expected. In classifying the character of the communication, the crucial inquiry is the intent of the client in deciding to approach the lawyer, whether the goal is to obtain legal counsel, even if other dimensions of a matter are addressed as well.105 For purposes of the privilege, courts generally have described the standard as whether a communication is primarily or predominantly legal in nature, that is, designed to obtain or facilitate legal advice or assistance.106 On occasion, a court may apply this primary legal purpose test in a mechanical manner, by evaluating the content of the communication through what looks to be a quantitative measure of whether legal or non-legal topics take up more space in the subject communications.107 However, leading courts instead apply a qualitative approach, asking whether the purported purpose in seeking legal advice or assistance was a sincere and meaningful element of the overall exchange. Thus, in In re Ford Motor Co., one federal court of appeals upheld the protection of the privilege over corporate committee meeting minutes by emphasizing that the matter was infused with legal concerns.108 This court concluded that the client had secur[ed] legal advice, even though the
In re Vioxx Prod. Liability Litigation, 501 F. Supp. 2d 789, 800 (E.D. La. 2007) (quoting and adopting report of Special Master Paul Rice on application of the privilege to a manufacturer in the highly regulated drug industry). 105 See RICE, supra note 24, 7:1 (The clients intention in communicating with legal counsel must be to obtain legal advice or assistance.). 106 See, e.g., In re Grand Jury, 475 F.3d 1299, 1304 (D.C. Cir. 2007); In re Spalding Sports Worldwide, Inc., 203 F.3d 800, 805-06 (Fed. Cir. 2000); Loctite Corp. v. Fel-Pro, Inc., 667 F.2d 577, 582 (7th Cir. 1981); Southeastern Pa. Transp. Auth. v. CaremarkPCS Health, L.P., 254 F.R.D. 253, 258 (E.D. Pa. 2009); Rossi v. Blue Cross & Blue Shield, 540 N.E.2d 703, 706 (N.Y. 1989). See generally RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS 72 cmt. c (2000) (A client must consult the lawyer for the purpose of obtaining legal assistance and not predominantly for another purpose.). 107 See, e.g., Cooper-Rutter Assocs. v. Anchor Natl Life Ins. Co., 563 N.Y.S.2d 491, 492 (N.Y. Sup. Ct., App. Div. 1990) (saying, without explanation, that documents concern both the business and legal aspects of the defendants ongoing negotiations with the plaintiff with respect to the business transaction, that the documents therefore were not primarily of a legal character, but expressed substantial non-legal concerns, and thus the documents were not covered by the privilege). 108 In re Ford Motor Co., 110 F.3d 954, 966 (3d Cir. 1997); see also Southeastern Pa. Transp. Auth. v. CaremarkPCS Health, L.P., 254 F.R.D. 253, 262 (E.D. Pa. 2009) (explaining that the mere fact that business concerns may have motivated the communication at issue does not render the documents unprivileged because. . . any business decisions made were infused with legal concerns and [were] reached only after securing legal advice; (citation omitted)).
104

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ultimate decision may have been driven . . . principally by profit and loss, economics, marketing, public relations, or the like.109 In In re Erie County, another federal court of appeals explained that the gravamen of a communication should not be ascertained by quantification or classification of one passage or another; rather, it should be assessed dynamically and in light of the advice being sought or rendered.110 Designating the privilege inquiry as a primary or predominant legal purpose test may be unfortunate and misleading. Although most courts have looked beyond the label to focus on the qualitative character of the communication, the presentation of the test as a primary or predominant may mislead the lawyers or judges to conduct a subjective, post hoc, and mechanical quantification of the legal versus non-legal elements of a matter or communication.111 If the appropriately integrated evaluation of legal and non-legal factors were denied protection from disclosure because a latter observer decided that the non-legal factors somehow outweighed the legal factors on a numerical scale, the purpose of the privilege in encouraging laypeople to obtain legal advice and assistance and learn how to comply with legal rules would be undermined. Even assuming we were able to precisely calculate that the purpose or content of a communication was 55 or 60 percent business and 45 or 40 percent legal, the privilege should be preserved when such factors are fused together in the lawyers provision of legal advice or assistance. The essential question for the court reviewing a claim of privilege is one of animating motive and qualitative significance, not of comparative volume.112
In re Ford Motor Co., 110 F.3d at 966. In re County of Erie, 473 F.3d 413, 420-21 (2d Cir. 2007). 111 The proposal to change the attorney-client privilege test from the predominate purpose test to the significant amount test would be an improvement because the new approach would ensure protection when the matter or communications had a substantial legal nexus. See Mark C. Van Deusen, Note, The Attorney-Client Privilege for In-House Counsel When Negotiating Contracts, 39 WM. & MARY L. REV. 1397, 1439 (1998); see also Amber Stevens, Comment, An Analysis of the Troubling Issues Surrounding In-House Counsel and the Attorney-Client Privilege, 23 Hamline L. Rev. 290, 316-19 (1999) (proposing that courts should consistently apply an expanded version of the predominant purpose test, the significant purpose test). Nonetheless, the proposed significant purpose test shares the same defect as the original by lending itself to artificial quantitative applications, such as by inviting judges to determine if twenty percent of a discussion is about legal issues as opposed to determining whether forty-five percent or sixty percent of a discussion involves legal advice. See Van Deusen, supra, at 1437. The attorney-client privilege should protect the confidentiality of sincere requests for legal advice or assistance when a matter has a meaningful and nonincidental legal dimension, regardless of mathematical proportions. 112 See, e.g., Southeastern Pa. Transp. Auth. v. CaremarkPCS Health, L.P., 254 F.R.D. 253, 260 (E.D. Pa. 2009) (holding that [e]ven if business concerns were at issue in the communication, it is clear that any business decisions were only being made after securing legal advice from [the corporate attorneys] concerning the contract language and thus that the
110 109

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In light of how the inquiry is actually being undertaken by prominent courts,113 the judicial examination of the motivation and substance behind a communication for which the protection of the attorney-client privilege is sought might better be described as a genuine and material legal purpose test. By this test, the court explores whether the request for legal advice or assistance was genuine and the legal dimension was material: First, as Paul Rice rightly said when acting as a special master applying the privilege test, merely because a legal issue can be identified that relates to on-going communications does not justify shielding them from discovery.114 A statement or document should not be immune from discovery simply because it was addressed to or from a lawyer and refers to a matter that is susceptible to legal analysis. When a statement or document does not expressly advert to a legal purpose, clear and credible evidence must be presented to prove that the legal factor was not merely latent but was a genuine motivating factor in making the communication. Second, the legal constituent must be material and not merely an incidental aspect of the matter or communication. While not retreating to a quantitative measure for privilege, the court nonetheless may withhold the privilege shield when the legal factor is wholly overshadowed by the nonlegal factors, to the point that it plainly was a make-weight or tangential issue.115 When the purpose and content of a communication are indeed genuinely and materially related to a legal matter, the privilege attaches to the communication as a whole. As the New York Court of Appeals explained in its oft-cited decision in Rossi v. Blue Cross & Blue Shield, [s]o long as the communication is primarily or predominantly of a legal character, the privilege is not lost merely by reason of the fact that it also refers to certain

primary purpose of the communication was to relay legal advice, not business advice); Allied Irish Banks, 252 F.R.D. 163, 170 (S.D.N.Y. 2008) (finding that a document was prepared to provide legal advice or services to the client and was not for purely business purposes). 113 See supra notes 108-112 and accompanying text. 114 In re Vioxx Prod. Liability Litigation, 501 F. Supp. 2d 789, 798 (E.D. La. 2007) (quoting and adopting report of Special Master Paul Rice). 115 Even when the legal factor is incidental, the privilege claimant may be able to make the case for isolating that minute legal content and gaining the privilege for that limited piece of the communication. See In re County of Erie, 473 F.3d 413, 421 n.8 (2d Cir. 2007) (Importantly, redaction is available for documents which contain legal advice that is incidental to the nonlegal advice that is the predominant purpose of the communication.); RICE, supra note 24, 7:8 (discussing the approach by which the court focuses on the segregable portions of each communication in which legal advice or assistance has been sought). Thus, when the essential purpose of a document is non-legal, redaction preserves the privilege as to those incidental, but discrete, sections that involve legal matters.

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nonlegal matters.116 A party asserting the protection of the privilege for a written communication must justify the claim on a document-by-document basis117 (and oral conversations about which evidence is sought would need to be addressed discretely as well). Once the party has provided a description of the document or conversation and made the basic showing that legal and non-legal elements are inextricably intertwined,118 the lawyer and client should not ordinarily be required to meticulously parse out the strands of an interwoven dialogue into privileged and unprivileged categories.119 In general, when a showing of primary or genuine and material legal purpose for a communication has been made, unless a strand of that conversation between a lawyer and a client is unrelated to the legal representation and would not naturally unfold within a professional dialogue between a lawyer and a client, the lawyer and client ought not be required to segregate those particular elements of an interwoven set of communications.120 The client cannot develop a trusting relationship with

Rossi v. Blue Cross & Blue Shield, 540 N.E.2d 703, 706 (N.Y. 1989); see also United States v. United Shoe Machinery Corp., 89 F. Supp. 357 (D.Mass.1950) (Judge Wyzanski) ([T]he privilege of nondisclosure is not lost merely because relevant nonlegal considerations are expressly stated in a communication which also includes legal advice.); Palmer by Diacon v. Farmers Ins. Exchange, 861 P.2d 895, 906 (Mont. 1993) (The privilege of non-disclosure is not lost merely because the communications contain relevant nonlegal considerations.). For further discussion of the combination of legal and non-legal elements in a communication, see infra notes 157-163 and accompanying text. 117 See FED. R. CIV. P. 26(b)(5)(A) (providing that when a party withholds information from discovery by claiming that the information is privileged, the party must describe the nature of the documents, communications, or tangible things not produced or disclosedand do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim); RICE, supra note 24, 11:7 (An index of privilege claims occasionally referred to as a privilege logis a compilation of information about documents requested during pretrial discovery for which a privilege claim has been asserted. (footnote omitted)). 118 See In re Vioxx Prod. Liability Litigation, 501 F. Supp. 2d 789, 798 (E.D. La. 2007) (When these non-legal services are mixed with legal services it does not render the legal services any less protected by the privilege. In fact, they both are protected when they are inextricably intertwined. (quoting and adopting report of Special Master Paul Rice). 119 See Sealy Mattress Co. v. Sealy Inc., 1987 WL 12500, at *3 (Del. Ch. 1987) (ruling that, where letter contains an admixture of business and legal advice that is not readily divisible into separate categories, any effort to parse the advice which is legal from that which is business would be hazardous at best). But see Lugosch v. Congel, No. Civ. 1:00CV-0784, 2006 WL 931687, at *14 (N.D.N.Y. Mar.7, 2006) ( arguing that when both legal and non-legal advice has been given, a court may have to parse not only the words but their intent in order to glean the authentic purpose of the communication). 120 The exacting and detailed segregation of privileged from unprivileged portions of an otherwise integrated communication and the redaction of the privileged sections while disclosing the remainder is a process that generally should be reserved to the situation in which

116

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the lawyer if the client lives in fear that any minor digression during a meeting with the lawyer may no longer be secret. And the lawyer cannot effectively obtain the information necessary to the representation if the lawyer must constantly interrupt to warn that the conversation is moving outside the strict boundaries of the legal representation and thus could fall outside the privilege. A holistic approach to legal representation requires a fair degree of freedom of conversational topics, a liberty which in turn can be assured to the client only by the protection of the privilege. As every practicing lawyer learns from experience, what may seem tangential to the client often provides important and legally significant context to the evaluation by a trained legal professional.121 Thus, the lawyer must be able to draw the client out and fully explore the matter, including going down what may turn out to be a conversational dead-end, in order to provide an informed legal representation.122 Moreover, the privilege may effectively be destroyed if a lawyer and a client are forced to explain why and how particular words or sentences uttered or written during the course of legal counseling are sufficiently connected to the objectives of the representation. Again, when the case has been made that the communication includes integrated evaluation of multiple factors, legal and non-legal, lawyers and clients rarely ought to be put in the position of having to extract supposedly non-privileged elements from an otherwise privileged set of communications.

2.

Law-Related Services and the Attorney-Client Privilege

The law of professional responsibility has responded to the changing realities of the practice of law. As recommended by the American Bar
the overwhelming purpose of the communication was non-legal and thus the legal advice is an incidental element of the communication. See supra note 115. 121 See Swidler & Berlin v. United States, 524 U.S. 399, 409 (1998) ([A] client may not know at the time he discloses information to his attorney whether it will later be relevant to a civil or a criminal matter, let alone whether it will be of substantial importance.); In re Ampicillin Antitrust Litigation, 81 F. R. D. 377, 385 n.10 (D.D.C. 1978) (By relevance of the communication to a particular legal problem, the Court does not intend to imply that a communication will only be protected if it, in fact, contains information necessary to the decision-making process for a particular legal problem, because such an Ex post facto approach would discourage full disclosure by an employee who may not know what information is necessary.). 122 See Upjohn Co. v. United States, 449 U.S. 383, 390-91 (1981) (The first step in the resolution of any legal problem is ascertaining the factual background and sifting through the facts with an eye to the legally relevant.).

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Association, the ethical obligations of lawyers should extend to services that have not traditionally been understood as the practice of law but which today are recognized as being related to the practice of law. By focusing upon the law-related nature of these additional services and their integration within a law practice, the applicability of professional responsibilities and the appropriate protection of the attorney-client privilege are brought into sharper relief. Moreover, by bringing law-related services within the coverage of the attorney-client privilege, when an indisputably legal matter is at the core of the representation, difficult questions about whether a particular activity is strictly legal or not fade into the background. Drawing fine lines between legal and non-legal matters which often is an impossible and artificial task123becomes less and less necessary. Rule 5.7 of the Model Rules of Professional Conduct addresses the lawyers ethical duties with respect to so-called law-related services:
(a) A lawyer shall be subject to the Rules of Professional Conduct with respect to the provision of law-related services, as defined in paragraph (b), if the law-related services are provided: (1) by the lawyer in circumstances that are not distinct from the lawyers provision of legal services to clients; or (2) in other circumstances by an entity controlled by the lawyer individually or with others if the lawyer fails to take reasonable measures to assure that a person obtaining the law-related services knows that the services are not legal services and that the protections of the client-lawyer relationship do not exist. (b) The term law-related services denotes services that might reasonably be performed in conjunction with and in substance are related to the provision of legal services, and that are not prohibited as unauthorized practice of law when provided by a nonlawyer.124

Nearly every law office offers some ancillary services that fall within the category of law-related services, such as secretarial services, copying services, etc., which have long been taken for granted and as to which the application of confidentiality and privilege are unquestioned. Because these
123 124

See supra note 97 and accompanying text. MODEL RULES R. 5.7.

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services are practically connected to the law practice and are offered in conjunction with legal services, the lawyer must take reasonable steps to ensure that the employees who perform such services conduct themselves in a manner compatible with professional obligations, such as maintaining confidentiality with respect to documents being typed or duplicated.125 Although not strictly legal in nature, when such routine services are performed within a law practice, the cover of the attorney-client privilege has long been assumed, if not always clearly articulated. As the practice of law grows ever more complex and the needs of clients change, the nature of law-related services has expanded well beyond those that were traditionally and routinely offered in nearly every law office. As explained in Comment 9 to Rule 5.7, law-related services offered as part of the modern law practice include such things as providing title insurance, financial planning, accounting, trust services, real estate counseling, legislative lobbying, economic analysis, social work, psychological counseling, tax preparation, and patent, medical or environmental consulting.126 As one federal court said more than 40 years ago, [w]here a lawyer possesses multifarious talents, his clients should not be deprived of the attorney-client privilege; [t]he mere fact that non-lawyers could also have performed the services in question does not in any way destroy the privilege.127 Thus, for example, when a law firm performs an ancillary function as part of a legal representation, such as holding money in escrow for a transaction, correspondence between the client and the lawyer which would ordinarily fall within the purview of the privilege should be none the less privileged because of the performance of that additional function.128 Rule 5.7 should play a prominent role in interpreting the parameters of the attorney-client client privilege as applied to the integrated legal practice that has evolved and will continue to be essential in the future. Although Rule 5.7 addresses the lawyers ethical responsibilities and does not directly shape the contours of the evidentiary attorney-client privilege, the definitions stated and lines drawn with respect to law-related services in
On the lawyers responsibility to ensure that nonlawyer assistants comply with professional expectations, see MODEL RULES R. 5.3. 126 MODEL RULES R. 5.7 cmt. [9]. 127 Chore-Time Equip. v. Big Dutchman, Inc., 255 F. Supp. 1020, 1023 (W.D. Mich. 1966) (applying attorney-client privilege to a patent lawyers correspondence regarding highly technical matters); see generally Corby Brooks, A Double-Edged Sword Cuts Both Ways: How Clients of Dual Capacity Legal Practitioners Often Lose Their Evidentiary Privileges, 35 TEX. TECH L. REV. 1069 (2004) (discussing the benefits of the dual-capacity practitioner to clients and arguing that the evidentiary privilege should attach). 128 Skorman v. Hovnanian of Fla., Inc., 382 S.2d 1376, 1378 (Fla. Ct. App. 1980).
125

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Rule 5.7 may appropriately be translated into the context of the privilege. By adopting Rule 5.7 as part of the formal ethical rules governing lawyers in a state, the states supreme court has affirmatively invited those who retain lawyers to rely upon the availability of regular professional protections when law-related services are provided by lawyers as part of a law practice. The primary consideration in the attachment of the attorney-client privilege is the reasonable expectations of the person in the position of a putative client.129 Rule 5.7 bolsters the clients reasonable expectations that communications about law-related services, when they are substantively related to and performed in conjunction with the provision of legal services,130 will be guarded by the attorney-client privilege. When the law-related service that is offered by a lawyer has been merged seamlessly together with a law practice, the client should be affirmed in the reasonable expectation that the lawyer will perform those additional services in a manner that fully comports with the lawyers professional duties to protect confidential information. When the clients expectation in this regard is not only reasonable, but has been endorsed by the states supreme court through adoption of Rule 5.7 in that jurisdiction, the courts should be estopped from removing the protections of confidentiality when parallel questions of protection from disclosure arise in the evidentiary context of the attorney-client privilege. Importantly, to ensure the availability of the attorney-client privilege, genuine legal services must remain at the core of the lawyers work, such that any law-related services are provided as part of an integrated package of legal services. The client who employs the lawyer exclusively for services that are wholly non-legal by any reckoning and that have no nexus to an underlying legal representation cannot thereby obtain the shield of the privilege for communications about those non-legal tasks.131 However,
RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS 72 cmt. c (2000). See MODEL RULES R. 5.7(b) (defining law-related services as denoting, inter alia, services that might reasonably be performed in conjunction with and in substance are related to the provision of legal services). 131 Under certain circumstances, Rule 5.7 imposes confidentiality obligations on the lawyer as a matter of ethics, even when the law-related services are not actually connected to a legal matter. Under Rule 5.7(a)(2), if the lawyer wishes to separate the law-related service from the practice of law, then the lawyer must take reasonable measures to assure that a person obtaining the law-related services knows that the services are not legal services and that the protections of the client-lawyer relationship do not exist. MODEL RULES R. 5.7(a)(2). Comment 6 to the rule explains that the lawyer must explain to the client the practical effect or significance of the inapplicability of the Rules of Professional Conduct, so that the person understands this will not be a client-lawyer relationship. Absent such affirmatives measures to operate the services distinct from the law practice, the client is entitled to the protections of the attorney-client relationship, of which confidentiality is an essential element. MODEL RULES R. 5.7 cmt. [6]. Thus, if the lawyer has not taken affirmative steps to separate the activity from
130 129

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[s]o long as the client consults to gain advantage from the lawyers legal skills and training, the communication is [privileged,] even if the client may expect to gain other benefits as well, such as business advice or the comfort of friendship.132 To illustrate this integrated treatment of law-related services, we take an example from a common practice scenario as to which the courts remain divided on proper classification. By recognizing that the attorney-client privilege also encompasses law-related serves that rotate around a legal nucleus, the analytical knife may be provided to cut through the Gordian knot of whether a lawyers preparation of a tax return is a legal service for purposes of the privilege. Some courts refuse to extend the privilege to communications made between a client and lawyer for the purpose of preparing a tax return, as contrasted with tax planning counsel by a lawyer, concluding that tax return preparation is not a legal professional service.133 Most prominently, one federal court of appeals in United States v. Frederick declared that preparation of a tax return is accountants work and, even when performed by a lawyer, still rises to nothing more than lawyers . . . doing nonlawyers work.134 To hold otherwise, the court said, would allow a taxpayer by hiring a lawyer to do the work that an accountant, or other tax preparer, or the taxpayer himself or herself, normally would do, to obtain greater protection from government investigators than a taxpayer who did not use a lawyer as his tax preparer would be entitled to.135

his or her practice of law, the ethical duties of a lawyer attach to those law-related activities, whether or not there is a nexus in a particular case to legal matters. Under those circumstances, however, the attorney-client privilege simply cannot be extended, because it would allow both lawyers and clients to manipulate the privilege and stretch it to cover unlinked non-legal matters. Although the adoption of Rule 5.7 invites clients to expect confidentiality for lawrelated activities that are not operated separate from the law practice, this essay suggests only that the reasonableness of that expectation justifies extension of the attorney-client privilege when the law-related activity is attendant to and integrated with an indisputably legal matter. 132 RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS 72 cmt. c (2000). 133 See United States v. Willis, 565 F. Supp. 1186, 1189-90 (S.D. Iowa 1983); see also RICE, supra note 24, 7.24 (finding that courts are divided on whether tax return preparation, as contrasted with tax planning, is legal assistance entitled to the protection of the privilege); Maura I. Strassberg, Privilege Can Be Abused: Exploring the Ethical Obligation to Avoid Frivolous Claims of Attorney-Client Privilege, 37 SETON HALL L. REV. 413, 473 n.268 (2007) (noting disagreement among courts on whether communications involving a lawyers preparation of a tax return are protected by the privilege). 134 182 F.3d 496, 500 (7th Cir. 1999) (denying privilege protection to the information provided by the client to the lawyer to prepare the tax return and work-sheets prepared by the attorney in preparing the return). 135 Id.

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Other courts, rightly in our view, have ruled that [p]reparation of a return by an attorney pursuant to a bona fide attorney-client relationship is sufficiently within his professional legal competence to be subsumed by the privilege.136 Even the simple preparation of a tax return may readily become the occasion for providing valuable legal advice about characterization of items, the justifiability of exemptions and deductions under the internal revenue code, and the possibility of legal proceedings. Precisely because tax matters are such fertile ground for legal issues and disputes, we believe that communications about tax return activity presumptively fall within the attorney-client privilege. To be sure, affording the privilege to tax preparation by lawyers as a legal service does mean, as the Frederick court apprehended, that a taxpayer who retains a lawyer for tax return work receives the benefit of the privilege, while a taxpayer who hires an accountant does not. By the same token, the home buyer who retains a lawyer to assist with a real estate transaction, rather than using a real estate agent, receives the benefit of the privilege.137 Likewise, the manufacturer who retains a lawyer to conduct or supervise an environmental audit for regulatory compliance, rather than an engineer or other professional, thereby secures the advantage of the privilege.138 As still another example, the employer who retains a lawyer to prepare an employee handbook or a sexual harassment policy would receive the benefit of the privilege, while the employer who uses a human resources professional or relies on his or her own understanding does not.139 In sum, when tax return work is being performed by a diligent lawyer (rather than an accountant or other non-lawyer), the lawyers legal expertise and experience may lead him or her to identify and address legal issues that
United States v. Schmidt, 360 F. Supp. 339, 347 (M.D. Pa. 1973) (applying the privilege to the lawyers preparation of a tax return as well as to any communications with an accountant who prepared preliminary business and financial information that would reveal information related to the attorney-client relationship); see also Colton v. United States, 306 F.2d 633, 637 (2d Cir. 1962) (There can, of course, be no question that the giving of tax advice and the preparation of tax returns . . . are basically matters sufficiently within the professional competence of an attorney to make them prima facie subject to the attorney-client privilege.); United States v. Merrell, 303 F. Supp. 490, 492 (N.D.N.Y. 1969) (It appears that the attorneyclient privilege is applicable to the preparation of tax returns and the giving of tax advice.). 137 See, e.g., Cedrone v. Unity Sav. Assn, 103 F.R.D. 423, 427-29 (E.D. Pa. 1984) (applying privilege to communications between client and lawyers retained to handle real estate transaction); Skorman v. Hovnanian of Florida, Inc., 382 So. 2d 1376, 1378 (Fla. Ct. App. 1980) (holding that all correspondence between the client and lawyer relative to a real estate transaction was privileged); see also Iowa R. Prof. Conduct 32:5.7, cmt. 12 (stating, inter alia, that [c]ertain services that may be performed by nonlawyers nonetheless are treated as the practice of law in Iowa when performed by lawyers, including consummation of real estate transactions). 138 See supra notes 66-67 and accompanying text. 139 See supra note 102 and accompanying text.
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others would not appreciate, as is true in so many other areas of law where the services being performed by the lawyer are not forbidden to nonlawyers. Under such circumstances, the confidentiality secured by the privilege rightly comes into force. It must be acknowledged, however, that when a lawyer prepares a simple tax return by merely inputting financial data received from the client, characterizing this work as a legal service would be a pyrrhic victory for purposes of the privilege.140 Under the longstanding doctrine that underlying facts are not privileged,141 the financial data submitted by the client would not be insulated from discovery. Moreover, information conveyed to the lawyer for the very purpose of being included in the tax return would not be privileged, of course, because the lawyer was intended to be a conduit in transmitting that set of information to the government tax agency.142 However, as soon as the exchange between the lawyer and client moves beyond financial data that is to be transmitted to the government on the tax return, such as correspondence about how to characterize an item of income or whether the requirements for taking a particular deduction are met, every reason is present to protect these communications by the privilege. Even if the actual preparation of the tax return were regarded as a law-related accounting service, rather than the direct performance of legal services, the privilege should cover all aspects of that tax return work other than the nonprivileged underlying financial data, simple work-sheets based solely on

The Reporters Note to the Restatement of the Law Governing Lawyers finds the tax preparation example to be difficult for application of the attorney-client privilege because decisions disagree whether routine tax-return preparation services constitute legal services covered by the privilege. RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS 72 rptrs note (2000). The comments to the Restatement include an illustration involving preparation of a tax return by a lawyer under which [t]he trier of fact may, but need not, infer that Clients purpose was not that of obtaining legal assistance. Id. cmt. c, ill.2. However, as described in that illustration, Lawyer prepares simple tax returns without discussing any issues with Client, Client has never discussed with Lawyer any legal question concerning taxes or return preparation, nor has Lawyer offered such advice, and Client pays Lawyer on a per-form basis and in an amount comparable to what nonlawyer tax preparers charge. Id. Thus, in that peculiar illustration, nearly every possible legal dimension has been drained from the activity a scenario not likely to be commonly encountered in real-world exchanges between lawyers and clients. 141 See infra notes 164-166 and accompanying text. 142 RICE, supra note 24, 7.25; United States v. Lawless, 709 F.2d 485, 487 (7th Cir. 1983) ([I]f the client transmitted the information so that it might be used on the tax return, such a transmission destroys any expectation of confidentiality.).

140

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that data, and information that is included in the return.143 As one tax attorney has perceptively written:
With few exceptions, when a taxpayer/client follows an attorneys advice with respect to tax issues, that advice will in some fashion ultimately be reflected on the taxpayer/client's tax returns filed with the government. In this sense, almost all tax law advice is, in some regard, associated with return preparation activities.144

Accordingly, the fact that the lawyers legal role and legal advice is intertwined with the lawyers work as a tax preparer is no reason to deny the coverage of the privilege to the representation as a whole. Instead, to uphold the purpose of the privilege in allowing clients to seek counsel from lawyers on compliance with the law, the interconnection between the lawyers work in advising and in completing the tax return provides the very reason to ensure the protection of the privilege.

3.

Preventing the Ruse Abuse: Denying the Privilege to Ordinary Business Matters Disguised as Relating to Legal Advice

In two particular contexts presenting the blending of legal and non-legal roles and matters, courts and commentators have been especially worried that the attorney-client privilege may be abused. As discussed immediately below, when in-house counsel to a business association wears two hats (both that of a lawyer and a business executive) or where ordinary business communications appear to be routinely channeled through a lawyer, courts asked to extend the shield of the privilege fear that the addressing of the

See, e.g., Colton, 306 F.3d at 609 (holding that, even though the information transmitted by the client to be included in the tax return is not privileged, the privilege is still available to [the taxpayer] to the extent of permitting him to withhold any particular confidential papers which were specifically prepared by the client for the purpose of consultation with his attorney and any of the [law] firms memoranda and worksheets to the extent of any unpublished expression made by an attorney therein of confidences which had passed between him and his clients (quoting trial judge)); United States v. Schlegel, 313 F. Supp. 177, 178-80 (D. Neb. 1970) (holding that information provided by the client to the lawyer that was included in the tax return was not privileged, along with the pre-existing financial books and records, but that other oral conversations and written communications created solely for the purpose of delivery to his attorney for the preparation of his return remained within the privilege). 144 Claudine Pease-Wingenter, Does the Attorney-Client Privilege Apply to Tax Lawyers?: An Examination of the Return Preparation Exception to Define the Parameters of the Privilege in the Tax Context, 47 WASHBURN L.J. 699, 699 (2008).

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message to the lawyer may actually be a ruse through which business rather than legal matters were being communicated.145 However, a similarly jaundiced attitude would be corrosive to the attorney-client privilege if generally harbored by courts about the presence of non-legal elements within a law-related communication. Even in these two particular business contexts, the potential for abuse is better addressed by careful application of the limiting prerequisites for and exceptions to the privilege itself, rather than by narrowly defining the nature of the lawyers role or artificially constraining the topics that may be considered by the lawyer and client in addressing a legal matter. Thus, courts should hesitate to enunciate general rules restricting the application of the privilege to inhouse counsel or presuming that communications with lawyers that contain business information or considerations fall outside the privilege. First, difficulties in identifying what role the attorney was fulfilling arise most frequently in cases involving in-house counsel who may perform a number of functions for the corporation, only some of which place them in the role of legal advisor.146 As Paul Rice summarizes the state of the law on privilege in the federal courts:
[T]he unstated operating presumption in situations involving outside retained counsel with limited responsibilities to the client (e.g., strictly legal capacity as opposed to business responsibilities because of a corporate position that he holds), is that the consultations were held for the purpose of obtaining legal advice or assistance. The same presumption does not apply to in-house counsel because of the many nonlegal responsibilities in-house counsel assumes (whether given a separate position and title or not).147

Thus, in the limited context of inside corporate counsel, [t]he overlap between business advice and legal advice requires a pragmatic approach in determining whether the privilege covers all or some of the

See RICE, supra note 24, 7:2. Andritz Sprout-Bauer, Inc. v. Beazer East, Inc., 174 F.R.D. 609, 633 (M.D. Pa. 1997); see also Rossi v. Blue Cross & Blue Shield, 540 N.E.2d 703, 705 (N.Y. 1989) (noting that the day-today involvement of in-house attorneys for a company may blur the line between legal and non-legal communications). 147 RICE, supra note 24, 7:1 (footnotes omitted); but see Giesel, supra note 98, at 1175 (criticizing the anticorporation and anti-in-house counsel bias which is obvious in many courts opinions on attorney-client privilege); Stevens, supra note 111, at 309 (arguing that courts have shown a bias towards corporations and in-house counsel when they examine in-house counsels communications and critically noting some courts appear to presume corporate abuse of the privilege or that the communication contains primarily business advice).
146

145

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communication.148 The fact that the in-house counsel may be regularly involved with nearly every aspect of the business enterprise cannot be a device for immunizing every such communication from outside discovery.149 Nonetheless, in making the fact-intensive determination of whether the privilege should apply, courts should be mindful of the necessarily expanded role of corporate counsel in the modern legal and regulatory environment.150 Moreover, as the Restatement of the Law Governing Lawyers emphasizes in a comment, the privilege applies without distinction to lawyers who are inside legal counsel or outside legal counsel for an organization.151 Accordingly, if non-legal components of a communication are intertwined with genuine and material requests for or legal advice provided by corporate counsel, whether in-house or outside, the privilege should attach.152 But if corporate attorneys were acting principally as business advisors giving only incidental legal advice, then the protection of the attorney-client privilege may not come into play.153 Only when any legal advice was overshadowed by non-legal information should the court be more inclined to find that the privilege has been relinquished.154 Second, as a similar concern that also arises in the business context, a potential for abuse of the attorney-client privilege may be found in the inappropriate practice of some businesses to funnel all documents and correspondence through counsel (whether in-house or outside) in an attempt to transform routine business communications into privileged attorneyclient communications. As Paul Rice writes in his treatise, [m]any courts fear that businesses will immunize internal communications from discovery by placing legal counsel in strategic corporate positions and funnelling documents through counsel (viz. addressing documents to the lawyers with
ABB Kent-Taylor, Inc. v. Stallings & Co., Inc., 172 F.R.D. 53, 55 (W.D.N.Y. 1996). But see Veasey & Di Guglielmo, supra note 24, at 27 (It is not clear, however, that in-house counsel offer business advice more frequently than do outside counsel, suggesting that courts should not be more skeptical of the legal nature of a communication simply because it involved in-house counsel.). 150 See supra Part II.B. 151 RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS 73 cmt. i (2000). 152 See supra notes 116-119 and accompanying text and infra notes 157-163 and accompanying text. 153 In re Westinghouse Elec. Corp. Uranium Contracts Litigation, 76 F.R.D. 47, 57 (W.D. Pa. 1977) (emphasis added); see also United States v. International Business Machines Corp., 66 F.R.D. 206, 212 (S.D.N.Y. 1974) (saying that the attorney-client privilege does not apply to incidental legal advice given by an attorney acting outside the scope of his role as attorney). 154 See In re Brand Name Prescriptions Drugs Antitrust Litigation, No. 94 C 897, 1995 WL 354268, at *3 (N.D. Ill. 1995).
149 148

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copies being sent to the employees with whom communications were primarily intended).155 Courts understandably and appropriately refuse to accept the expediency of copying the lawyer on routine business correspondence and memoranda as sufficient to raise the shield of privilege over the entire content of such ordinary business documents.156 Even in these two business contexts, the combination of business advice with legal counsel emphatically does not undermine the privilege, if the communications primary purpose is to gain or provide legal assistance.157 The central inquiry should be whether there is a logical relationship between the non-legal components of the communication and the legal nucleus of the subject on which advice or assistance is sought from the attorney.158 Business advice, unrelated to legal advice, is not protected by the privilege even though conveyed by an attorney to the client.159 But if a genuine and material link to the legal matter on which advice is sought is indeed present,160 discussions between the lawyer and client of other aspects of a matter, including business ramifications161 and moral considerations,162 should not remove the privilege from the communication. If the contours of the privilege are drawn too narrowly, the lawyer and the client will be unduly constrained, not only in the practical integration of business factors

RICE, supra note 24, 7:2. See, e.g., United States v. Segal, No. 02-CR-112, 2004 WL 830428, at * 3 (N.D. Ill. 2004) (A prudent corporation will seek legal advice with respect to most corporate decisions, but the inclusion of general counsel does not transform all business discussions into attorneyclient privileged communications.); Tri-State Equip. v. United States, No. CIVS-94-1033-EJGPAN, 1996 WL 376340, at *2 (E.D. Cal. 1996) (saying that, in evaluating whether the privilege attached, a business may not conduct its ordinary business through lawyers to hide its affairs from light of day); Jack Winter, Inc. v. Koratron Co., 54 F.R.D. 44, 47 (N.D. Cal. 1971) ([C]orporate dealings are not made confidential merely by funnelling them routinely through an attorney.). 157 Kramer v. Raymond Corp., Civ. No. 90-5026, 1992 WL 122856, at *1 (E.D. Pa. 1992) (Because in-house counsel may play a dual role of legal advisor and business advisor, the privilege will apply only if the communications primary purpose is to gain or provide legal assistance.). On the primary legal purpose test, and how it has been applied and should be understood, see supra notes 105-115 and accompanying text. 158 See, e.g., Burton v. R.J. Reynolds Tobacco Co., 177 F.R.D. 491, 497 (D. Kan. 1997) (denying privilege for correspondence among counsel for tobacco companies regarding special projects for research, where the party did not point to any specific evidence, however, that the documents were created to give legal advice instead of for general business purposes, nor do the documents themselves evidence the necessary link.). 159 In re CFS-Related Securities Fraud Litigation, 223 F.R.D. 631, 635 (N.D. Okla. 2004). 160 For a suggestion that the privilege test is best understood as focusing on a genuine motive by the client in seeking legal advice or assistance and a material legal dimension to the matter, see supra notes 113-115 and accompanying text. 161 See supra Part II.B. 162 See infra Part IV.B.
156

155

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with legal options, but also in engaging in moral deliberation about the right course to take.163 Importantly, the traditional prerequisites for and exceptions to the attorney-client privilege are well-suited to exclude abusive applications. Cases in which the privilege should be withheld can be adequately addressed by looking to the basic elements of the privilege itself, without narrowly defining the scope of the practice of law or permitting intrusion into privileged communications that include non-legal as well as genuine legal components: The privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney[.]164 Thus, witnesses to events, raw data, and pre-existing information typically are subject to unobstructed discovery. Especially when the underlying factual evidence has been generated through studies and collected through observation of data that was obtained from sources other than the client,165 a claim of privilege is misplaced, whether or not the data is transmitted to the lawyer or research is supervised by the lawyer. (By contrast, if a scientific report put[s] in usable form information obtained from the client, and if the report was connected intimately to the rendering of legal advice, the contents should receive the protection of the privilege.166) Even though informed and perhaps influenced by a lawyers advice, the clients ultimate decision based on that advice is not privileged. Because the client is not necessarily bound by the lawyers suggestions, the general rule is that [r]evealing client actions or decisions would disclose neither the substance of the recommendation nor the content of the clients privileged communications upon which the decision/actions were based.167
See infra Part IV.B. Upjohn Co. v. United States, 449 U.S. 383, 395 (1981). 165 United States Postal Serv. v. Phelps Dodge Refining Corp., 852 F. Supp. 156, 161 (E.D.N.Y. 1994) (finding documents recording factual data collected by consultants did not reveal[] any confidential communications by the defendants or their attorneys to the consultants). 166 Olson v. Accessory Controls & Equip. Co., 757 A.2d 14, 23, 28 (Conn. 2000) (quoting Federal Trade Commn v. TRW, Inc., 628 F.2d 207, 212 (D.C. Cir. 1980)); see also Andritz v. Sprout-Bauer, Inc. v. Beazer E., Inc., 174 F.R.D. 609, 635-36 (M.D. Pa. 1997) (holding that documents explaining or interpreting technical data so as to allow counsel to provide legal advice were protected by the privilege). For further analysis of the Olson case, and its contrast with Phelps Dodge, see generally Fiechtl, supra note 65, at 962-63. 167 RICE, supra note 24, 5:15.
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While written communications between a lawyer and client (and among those who are part of the legal team) may be privileged in nature, preexisting documents or documents which were not created as communications to the attorney . . . do not become privileged merely by virtue of being forwarded to the lawyer.168 The preexisting document rule thus underscores that only documents created for the purpose of communicating with the lawyer about the legal representation fall within the privilege. For the privilege to attach, the communication must be treated by the participants in a manner consistent with its asserted confidentiality.169 If a communication is broadly disseminated beyond those agents of the client who are authorized to make decisions, speak for the client, or otherwise have a need to know, then the communication either is not privileged in the first instance because it was not held confidential or the privilege is lost due to waiver by disclosure.170 Under the crime-fraud exception to the attorney-client privilege,171 if a client, rather than seeking legitimate legal advice, solicits information and services from a lawyer in order to facilitate criminal
7 JAMES A. ADAMS & JOSEPH P. WEEG, IOWA PRACTICE SERIES: EVIDENCE 5.504:10 (Thomson-West 2005); see also Fisher v. United States, 425 U.S. 391, 403-04 (1976) (This Court and the lower courts have thus uniformly held that pre-existing documents which could have been obtained by court process from the client when he was in possession may also be obtained from the attorney by similar process following transfer by the client in order to obtain more informed legal advice.). 169 See Allied Irish Banks, 252 F.R.D. 163, 168 (S.D.N.Y. 2008) (Generally, communications made between a [client] and counsel in the known presence of a third party are not privileged. (quoting People v. Osorio, 549 N.E.2d 1183, 1185 (N.Y. 1989)). 170 See Fed. Trade Commn v. GlaxoSmithKline, 294 F.2d 141, 147 (D.C. Cir. 2002) (holding that a company was obliged to limit[] its dissemination of the documents in keeping with their asserted confidentiality); United States v. Jones, 696 F.2d 1069, 1072 (4th Cir.1982) (Any disclosure inconsistent with maintaining the confidential nature of the attorney-client relationship waives the attorney-client privilege.); Southeastern Pa. Transp. Auth. v. CaremarkPCS Health, L.P., 254 F.R.D. 253, 258 (E.D. Pa. 2009) (explaining that the scope of an individuals employment is highly relevant, that the privilege is retained when information is relayed to other employees o[r] officers of the corporation on a need to know basis, and that the privilege is waived when communications are disclosed to employees who did not need access to them; (internal quotations and citations omitted)). 171 See United States v. Zolin, 491 U.S. 554, 563 (1989) (It is the purpose of the crimefraud exception to the attorney-client privilege to assure that the seal of secrecy between lawyer and client does not extend to communications made for the purpose of getting advice for the commission of a fraud or crime; citations omitted). The crime-fraud exception is a limited one. Olson v. Accessory Controls & Equip. Co., 757 A.2d 14, 23, 31 (Conn. 2000) The exception applies only when there is probable cause to believe that the communications with counsel were intended in some way to facilitate or to conceal the criminal [or fraudulent] activity. In re Grand Jury Subpoenas Duces Tecum, 798 F.2d 32, 34 (2d Cir. 1986).
168

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or fraudulent conduct, the attorney-client privilege is forfeited.172 As a state court said seventy-years ago, [i]t is a mistaken notion to think that an attorney has the right to assist in the perpetration of a fraud, and a mistaken notion to think that one having in mind the perpetration of a fraud or a crime can safely intrust this knowledge to an attorney any more than to anybody else.173 Accordingly, for courts to allow legitimate access to business information undeserving of privileged protection, it is not necessary to constrict the scope of the attorney-client privilege in a myopic manner that fails to appreciate the expanded nature of the modern practice of law or that would discourage business clients from seeking the integrated legal and ethical assistance of lawyers. * * * *

When a matter with a meaningful legal dimension is brought to a lawyer and subjected to the lawyers professional examination, the animating purpose of the attorney-client privilege is realized by encouraging the lawyer and the client to fully explore any legal implications in an integrated fashion, even as the lawyer offers additional services that could be performed by non-lawyers. If todays lawyer is to be effective in a legal representation, and thoroughly competent in the modern sense of having expertise, training, and experience that may extend beyond knowledge of legal texts, doctrines, and procedures, then the lawyers performance or supervision of additional services directly related to the practice of law should be recognized as within the lawyers professional capacity. Communications between lawyers and clients about those allied matters, as
See, e.g., State ex rel. Humphrey v. Philip Morris Inc., 606 N.W.2d 676, 691 (Minn. Ct. App. 2000) (referring to trial court ruling that the tobacco companies had engaged in criminal and fraudulent conduct by failing to conduct research into the safety of tobacco products and failing to warn consumers about research that did support negative conclusions and that [the tobacco companies] attorneys acted in furtherance of this conduct); In re A.H. Robins Co., 107 F.R.D. 2, 14-15 (D. Kan. 1985) (applying the crime-fraud exception when the manufacturer of a contraceptive device failed to adequately test the Dalkon Shield before marketing it; attempted to develop hard evidence which misrepresented the nature, quality, safety and efficacy of the Dalkon Shield; ignored the mounting evidence against the Dalkon Shield, with knowledge of the potential harm caused by the product; relied upon invalid studies in an effort to refute or ignore the dangers potentially caused by the Dalkon Shield; and attempted, with the assistance of counsel, to devise strategies to cover up Robins' responsibilities and lessen its liability with respect to the Dalkon Shield). 173 State v. Kirkpatrick, 263 N.W. 52, 54-55 (Iowa 1935) (involving communications by an attorney and client regarding counterfeit city bonds). Importantly, however, the exception only applies where the communication is intended to or actually advances the clients illicit purpose; providing after-the-fact evidence of the crime or fraud is insufficient. 1 HAZARD & HODES, supra note 76, 9.10, at 9-41.
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well as strictly legal issues, deserve the sound and reliable protection of the attorney-client privilege.

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B.

A Dynamic Attorney-Client Privilege as Essential to Moral Deliberation in the Attorney-Client Relationship

The modern lawyer almost invariably advises his client upon not only what is permissible but also what is desirable. And it is in the public interest that the lawyer should regard himself as more than predicter of legal consequences. His duty to society as well as to his client involves many relevant social, economic, political and philosophical considerations. And the privilege of nondisclosure is not lost merely because relevant nonlegal considerations are expressly stated in a communication which also includes legal advice. (Judge Charles E. Wyzanski, Jr., United States District Court for the District of Massachusetts) 174

One of the primary justifications for the attorney-client privilege is to allow the client to confide fully in his or her lawyer so that the lawyer has the information necessary to advise the client about what the law requires.175 Lawyers regularly counsel and successfully persuade their clients not to embark upon or persist in legally wrongful conduct. Thus, an abundant public benefit is achieved by enhancing this confidential private relationship.176 Ideally, the lawyer will also be in a well-informed position to encourage the client to consider the morally appropriate course of action as well. If the privilege were narrowly defined to protect only communications about legal matters understood in a strict or formal sense, the lawyers vital role as an advisor would be depreciated into the morally-bankrupt status of legal technician. What lawyers do on behalf of clients may have consequences, sometimes profound, for others, which necessarily has moral resonance. The attorney-client relationship should be recognized as a common moral

United States v. United Shoe Mach. Corp., 89 F. Supp. 357, 359 (D. Mass. 1970). Upjohn Co. v. United States, 449 U.S. 383, 389 (1981) ([The privileges] purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.). 176 See In re Regents of University of California, 101 F.3d 1386, 1390-91 (Fed. Cir. 1996) (Persons seek legal advice and assistance in order to meet legal requirements and to plan their conduct; such steps serve the public interest in achieving compliance with law and facilitating the administration of justice, and indeed may avert litigation.).
175

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community in which each has responsibilities for the other.177 The lawyer and the client are engaged in mutual moral deliberation, in which they act cooperatively toward accomplishing the good. The lawyer does not impose the lawyers moral values upon the client but seeks to ensure that the client draws upon the clients own deepest moral principles in realizing a legal outcome.178 In settings where the lawyer and the client participate together in formulating and realizing the clients goals, a moral interdependence arises in which each influences the other and must therefore assume some moral responsibility for decisions.179 For the lawyer to neglect the moral dimension of the representation may well constitute indifferent neglect of the clients true interests, such as by damaging family relationships,180 causing harm to stakeholders in or employees of a business,181 damaging the natural environment,182 or failing to account for an elderly clients moral and religious beliefs in drafting a medical directive.183 By failing to enter into a moral dialogue, the lawyer is bereft of vital information about the client, the clients true nature, and the clients genuine desires, resulting in an artificial separation of the clients legal interests from the clients moral aspirations. How can the lawyer truly know the client and thereby purport to advance that clients wellbeing if the lawyer never asks by what moral compass the client directs his, her, or its path? Robert Vischer explains that a lawyers misguided adoption of a morally-detached and legally-exclusive approach to the clients representation
foregoes any opportunity by the client to correct the lawyers misperception of the clients operative moral claims and it tends to allow clients to avoid coming to terms with the moral content of any arguably legal course of conduct. Especially in cases where the governing legal directives are ambiguous or otherwise
177 JOSEPH G. ALLEGRETTI, THE LAWYERS CALLING: CHRISTIAN FAITH AND LEGAL PRACTICE 45 (1996). 178 Robert F. Cochran, Jr., Introduction: Three Approaches to Moral Issues in Law Office Counseling, in Symposium: Client Counseling and Moral Responsibility, 30 PEPP. L. REV. 591, 599 (2003) (saying that, by asking the client to consider the effect of alternatives on other people, the lawyer does not impose values on the client, but calls on clients to draw on their own sources of moral values); see also Robert K. Vischer, Moral Engagement Without The Moral Law: A Post-Canons View of Attorneys Moral Accountability, THE PROFL LAWYER (2009). 179 See Painter, supra note 24, at 511, 578-83. 180 See supra Part II.A. 181 See supra Part II.B. 182 See supra Part II.C. 183 See supra Part II.D.

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indeterminate, attorneys become tools for facilitating morally problematic conduct, even in contexts where the client may not have deliberately embraced the moral claims embodied therein or where the client would have benefited from being pressed on the wisdom of those claims.184

To be blunt, then, a lawyer who fails to engage in a moral discussion with the client, at least on matters of significance with obvious moral implications, simply is not doing his or her job. Moral awareness is not at war with the traditional expectation of the lawyer to be a zealous advocate for the client. Gerald Postema argues that not only is a lawyer authorized to raise moral issues with the client, he has a professional responsibility to do so:
[C]ut off from sound moral judgment, the lawyers ability to do his job wellto determine the applicable law and effectively advise his clientsis likely to be seriously affected. . . . [T]he lawyer who must detach professional judgment from his own moral judgment is deprived of the resources from which arguments regarding his clients legal rights and duties can be fashioned. In effect, the ideal of neutrality and detachment wars against its companion ideal of zealous pursuit of client interests.185

Rule 2.1 of the Model Rules of Professional Conduct expressly reminds the lawyer: In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social, and political factors, that may be relevant to the clients situation.186 As Geoffrey Hazard and William Hodes emphasize, this provision is more than merely permissive; it should be read as active encouragement for lawyers to provide more The comments broadly based and richer professional advice.187 accompanying the rule reinforce the value of moral deliberation to the client:
Advice couched in narrow legal terms may be of little value to a client, especially where practical considerations, such as cost or effects on other people, are predominant. Purely technical legal advice, therefore, can sometimes be inadequate. It is proper for a lawyer to refer to relevant moral and ethical
Robert K. Vischer, Legal Advice as Moral Perspective, 19 GEO. J. LEGAL ETHICS 225, 229 (2006). 185 Gerald J. Postema, Moral Responsibility in Professional Ethics, 55 N.Y.U. L. REV. 63, 79 (1980). 186 MODEL RULES R. 2.1. 187 1 HAZARD & HODES, supra note 76, 23.4, at 23-6.
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considerations in giving advice. Although a lawyer is not a moral advisor as such, moral and ethical considerations impinge upon most legal questions and may decisively influence how the law will be applied.188

By the nature of such advice, confidentially transmitted by a lawyer in a fiduciary relationship with a client, moral counseling rarely comes to public attention. Whether or not the client accepts moral adviceor even whether such advice has been givenordinarily is a protected confidence. On what are likely to be thousands of occasions each day somewhere in this country, lawyers and clients reach consensus that a questionable course of action should be avoided, on moral grounds or by reason of legal limitations or both. We seldom hear about such conclusions reached through mutual dialogue between an attorney and a client in a confidential setting. Instead, the episodes that come to public attention are those presumably less typical cases where the client steamed ahead regardless of moral or legal concerns, with inadequate counseling by the lawyer or even with the lawyers encouragement, only to enter into troubled and scandalous waters. The corporate scandals that shook the country in recent years provide an object lesson of what happens when the lawyer abdicates the role of independent counselor and declines to offer guidance beyond the formal boundaries of legal advice. The primary problem revealed by the corporate scandals was not a failure by corporations to institute elaborate rules and policies designed to ensure legal compliance and ethical behavior, but a failure to appreciate the importance of organizational culture in shaping the behavior of individuals.189 As Mark Sargent describes the behavior of too many lawyers involved in these episodes, moral priorities . . . often seemed to disappear into a smog of expediency, rationalization, willful blindness and slavish obedience to the wishes of self-interested managers who purported to speak for the corporate client.190 Attention to moral priorities, of course, means exercising reasoning beyond legal doctrinal analysis and drawing upon principles not found in legal texts.191 Lawyers are uniquely well-positioned to play an integral role in cultivating an ethically-sensitive organizational culture. Lyman Johnson reports that [t]he reason directors enter the boardroom, and abandon their
MODEL RULES R. 2.1 cmt. [2]. Milton C. Regan, Jr., Moral Intuitions and Organizational Culture, 51 ST. LOUIS U. L.J. 941, 941-42 (2007). 190 Mark A. Sargent, Lawyers in the Moral Maze, 49 VILL. L. REV. 867, 872 (2004). 191 Cf. ABB Kent-Taylor, Inc. v. Stallings & Co., Inc., 172 F.R.D. 53, 56-57 (W.D.N.Y. 1996) (observing in upholding privilege as applied to lawyers strategic assessment of alternative courses of action available to the client, that [i]n giving advice to a client, the role of an attorney is certainly not restricted to citing cases and espousing legal theories).
189 188

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pre-existing moral vision, is that no one in the room encounters or engages them morally!192 While the mere presence of a lawyer in a board meeting may not cloak the entire session with the attorney-client privilege, a lawyer called upon to provide genuine legal advice to the officers and directors should be permitted to extend his or her remarks to the moral challenges involved, while still being able to invoke the protection of privilege to that extent. Not surprisingly, no court or commentator to our knowledge has suggested that moral counsel by a lawyer in conjunction with legal advice or assistance would fall outside of the attorney-client privilege. Yet discussing the moral implications of a legal matter is not strikingly different in nature from providing legal advice or assistance that is made with special attention to the psychological or social needs of a client in a family law or elder law matter or that is intertwined with practical business concerns or that is informed by environmental counseling services.193 If the lawyers integrated consideration of other factors and provision of other law-related services were to be denied the protection of the privilege, then the basis for preserving the privilege for moral deliberation might also be unsettled. In this regard, the lawyers traditional role in offering moral counsel might be seen as the original example of what today is characterized as a law-related service.194 In sum, the lawyer cannot be a genuine and faithful advocate if he or she fails to become aware of and fully consider all of the multifarious dimensions of the clients interestslegal, social, political, business, economic, and moral. As Lawrence Fox reminds us, if the client learns that any discussion will not be held confidential, the flow of information is cut off and the lawyer loses the opportunity to remonstrate with the client, one of the more valuable benefits confidentiality confers on the profession.195 Lawyers must be encouraged to think beyond legal technicalities and must be able to elicit conversations with clients about other aspects that are strongly connected to the legal core and to do so with the secure knowledge that the exchange is protected by that powerful species of confidentiality grounded in the attorney-client privilege.

Lyman Johnson, Reclaiming an Ethic of Corporate Responsibility, 70 GEO. WASH. L. REV. 957, 965-66 (2002). 193 See supra Parts II.A to D & IV.A. 194 On law-related services, see supra Part IV.A.2. 195 See Lawrence J. Fox, Its All in the Atmosphere, 62 FORDHAM L. REV. 1447, 1448 (1994).

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V.

CONCLUSION

When a lawyer performs services for a client in the context of a legal practice, the strong presumption should be that the client genuinely seeks legal advice or assistance and that any communications with the attorney are within the attorney-client privilege.196 When a lawyer undertakes to advise or assist a client in a matter that may have legal implications, the introduction of an attorney-client relationship changes the environment in a manner that invites the protection of the privilege. When a client chooses to bring a matter to a lawyer, the lawyer then is able to bring to bear his or her legal training to provide legal advice or assistance as appropriate, or even to confirm that the law does not exact any additional obligations. In the modern world, with the expansion of the law, the occasions for seeking such legal advice and assistance have increased. Moreover, as legal directives overlap with non-legal considerations, the lawyer and client should be free to address a problem in a creative and integrated manner, with the privilege granting a unified protection to the deliberations. In each such case, the client naturally and justifiably expects that a confidential and fiduciary relationship has been created with a member of the legal profession. Moreover, if we wish to encourage lawyers to engage in moral deliberation with their clients, lawyers must be able to assure clients that this moral exchange is confidential, a protection secured by the attorneyclient privilege. By contrast, a crabbed construction of the privilege that excludes efforts by lawyers to elevate the discourse with clients beyond the narrow question of what is legally permissible would reduce lawyers to amoral legal technicians and leave clients unable to call upon lawyers to assist in moral aspiration. If we want lawyers to be morally- and ethicallygrounded, then we must assure lawyers that their introduction of social, political, business, and economic factors, as well as moral principles, into a discussion with legal clients will not have the perverse effect of removing the protection of the privilege. An attorney-client privilege that adjusts dynamically to the changing scope of the practice of law and that facilitates a robust moral dialogue between the attorney and the client best serves the public interest in obedience to the law and social justice.
See Diversified Industries, Inc. v. Meredith, 572 F.2d 596, 610 (8th Cir. 1977) ([A] matter committed to a professional legal adviser is prima facie so committed for the sake of the legal advice which may be more or less desirable for some aspect of the matter, and is therefore within the privilege unless it clearly appears to be lacking in aspects requiring legal advice. (quoting 8 JOHN HENRY WIGMORE, EVIDENCE 2296 (McNaughton rev. 1961))).
196

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