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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
Beyondthe fast-changing economic situation, social and cultural revolutions haverequired 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 andcomplementary 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 placeand 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 nolonger 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 becomeblurred, 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 legalpractice, 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 perhapswas the original law-related service,15 lawyers always have been
encouraged to refer not only to the law but to other considerations such asmoral, economic, social and political factors, that may be relevant to the
clients situation.16 The blurred line between legal and non-legal subjects
8 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.
15MODEL 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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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 aboutthe 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 informationfor 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 andother 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
22Brieant, supra note 3, at 21-22.
23 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 TheirClients, 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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6 DYNAMIC PRIVILEGE [16-Feb-09
legal affairs or another person seeks a review of a clients legal situation
before entering a transaction, the lawyer may serve as an evaluator whoinvestigates and reports on the clients situation.25
In undertaking any of these professional responsibilities, the lawyer isheld to a standard of competence, which today often requires more than
formal legal training and facility with the traditional sources and processesof 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 ofpractical, 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-all-
tradesor at least sufficiently grounded in the real-world circumstances ofthe 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 toconnect 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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8 DYNAMIC PRIVILEGE [16-Feb-09
A. Family Law
Over the past half century, changes in social norms and responsive
developments in family law have greatly contributed to the expanding roleof 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 multipleknowledge 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. Tocompetently and conscientiously serve clients today, the family lawpractitioner 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 standardsand being able to draw upon the wisdom mental health professions haveaccumulated about children and human nature from years of study,
supervision, research, and analysis, the family law practitioner will better
32Ann 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,44FAM.CT.
REV
.571,
571 (2006); see also Robert J. Sheran & Douglas K. Amdahl, Minnesota JudicialSystem: 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, at572.35
Timothy Hedeen & Peter Salem, What Should Family Lawyers Know? Results of a
Survey of Practitioners and Students, 44FAM.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-wonexperience 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 tobe 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 ofpsychology,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 lawpractitioner, 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 traditionallydesignated as legal is especially common in family law because it is
essential to the health of the attorney-client relationship, the success of therepresentation, the achievement of the clients personal objectives, and the
effectiveness of the family law dispute resolution system. For example, the
37Pruett, supra note 33, at 573.
38Hedeen & Salem, supra note 35, at601.
39 See id.at 602.
40Bruce J. Winick, Redefining the Role of the Criminal Defense Lawyer at Plea
Bargaining and Sentencing: A Therapeutic Jurisprudence/Preventive Law Model, 5 PSYCHOL.
PUB
.P
OLY
& 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, 18GEO.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 divorceprocess.44 Standard 1.2 of the Competence and Advice section of the
AAML Bounds of Advocacy states: An attorney should advise the clientof the emotional and economic impact of divorce and explore the feasibilityof 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 clientrelationship.46
B. Corporate Law
Although extra-legal counseling on moral, social, and other matters
pertinent to legal advice may emerge more readily when intimate personalmatters 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, andregulatory 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 andamplification 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
44 Id. at 381.
45
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 andlegal 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 theclients 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 fosteringand 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 andethics, 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 thebusiness 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 negotiatingcontracts, 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 adistinctly 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 legalrisks.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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12 DYNAMIC PRIVILEGE [16-Feb-09
economic, scientific, financial, or political issues, together with legal
demands and limits, corporate attorneys have been forced to diversify tomeet the demands of their clients.54
Non-legal counseling provided by lawyers to corporate clients attendantto providing legal advice and assistance extends beyond business, financial,
and scientific factors to include moral and ethical issues. Especially in apost-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 InstitutesPrinciples 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 totake 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 offertheir 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 businesscorporations 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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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 ourpopulation.
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 practicingin 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 financialaffairs 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, assetdispersal, 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 innature 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 long-term 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
68MODEL RULES R.5.7 cmt. [9]. On law-related services, see infra Part IV.A.2.
69Margaret 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, 62FORDHAM L.REV.1411,1420 (1994).72
Tebo, supra note 69, at 42.73
Id.
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16 DYNAMIC PRIVILEGE [16-Feb-09
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, oneinfused not only with legal complexity but also with emotional delicacy.
Elder law lawyers help clients prepare living wills (by which individualsattempt 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 personsincapacity).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 whiletaking 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 clientrevolves 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 isunprepared 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 decisionsabout 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, consultwith other important persons in the clients life, accommodate the
disabilities of the client, and consult professionals in other disciplines asappropriate. Indeed, a lawyer who is oblivious to the special needs of
clients with diminished capacity could be disciplined under the
professional responsibility rules.76
74 Id. at 44-45.
75
On the lawyers professional responsibilities with respect to clients with diminishedcapacity, see MODEL RULES R. 1.14.
761 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).
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18 DYNAMIC PRIVILEGE [16-Feb-09
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 oflawyers 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 theknowledge that what has been shared will be safeguarded.84 If the lawyer is
to effectively and fairly represent the clientrich or poor, confident orvulnerable, 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 topersuasively 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 theassurance 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-clientprivilege.86 By protecting this dialogue from outside intrusion or
examination, the privilege serves the vital professional purposes of building
82American 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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20 DYNAMIC PRIVILEGE [16-Feb-09
that what is exchanged between the lawyer and client might subsequently be
used as evidence against the client. When a person contacts a lawyer withthe purpose of obtaining legal counsel, the communications that follow are
privileged. It is the clients pursuit of legal advice or assistance that triggersthe privilege.
92
By contrast, when a person contacts a lawyer for extra-legal purposes orcommunicates 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 theshield 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 businessacquaintance 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 ispresumptively 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 privilegeshould 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 notqualify 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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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 andlegal advice or assistance is rightly expected. In classifying the character of
the communication, the crucial inquiry is the intent of the client in decidingto 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 predominantlylegal 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 whetherlegal or non-legal topics take up more space in the subject
communications.107
However, leading courts instead apply a qualitativeapproach, 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 theprotection 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
104In 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 amanufacturer 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 legalcharacter, 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)).
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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 acommunication for which the protection of the attorney-client privilege is
sought might better be described as a genuine and material legal purposetest. By this test, the court explores whether the request for legal advice orassistance 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 fromdiscovery.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 documentdoes 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 anincidental 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 non-legal 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 thecommunication 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 asthe communication is primarily or predominantly of a legal character, theprivilege 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 ofthe 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.); R ICE, 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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26 DYNAMIC PRIVILEGE [16-Feb-09
nonlegal matters.116 A party asserting the protection of the privilege for a
written communication must justify the claim on a document-by-documentbasis117 (and oral conversations about which evidence is sought would need
to be addressed discretely as well). Once the party has provided adescription of the document or conversation and made the basic showingthat 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 unprivilegedcategories.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 legalrepresentation 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 ofcommunications.120 The client cannot develop a trusting relationship with
116Rossi 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 informationfrom 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 thatwhich is business would be hazardous at best). But see Lugosch v. Congel, No. Civ. 1:00-
CV-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
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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 cannoteffectively obtain the information necessary to the representation if the
lawyer must constantly interrupt to warn that the conversation is movingoutside the strict boundaries of the legal representation and thus could falloutside 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 seemtangential 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 sentencesuttered 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 ofmultiple 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-ClientPrivilege
The law of professional responsibility has responded to the changingrealities 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 acommunication 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 whichtoday are recognized as being related to the practice of law. By focusing
upon the law-related nature of these additional services and theirintegration within a law practice, the applicability of professionalresponsibilities 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 anindisputably 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 matterswhich 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 totake 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 withinthe category of law-related services, such as secretarial services, copying
services, etc., which have long been taken for granted and as to which theapplication of confidentiality and privilege are unquestioned. Because these
123 See supra note 97 and accompanying text.
124MODEL 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 toensure that the employees who perform such services conduct themselves in
a manner compatible with professional obligations, such as maintainingconfidentiality 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 clientschange, 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 partof 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, psychologicalcounseling, 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 theattorney-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 escrowfor 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. AlthoughRule 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
125On 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].127Chore-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).
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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 lawyersin a state, the states supreme court has affirmatively invited those who
retain lawyers to rely upon the availability of regular professionalprotections when law-related services are provided by lawyers as part of alaw 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 reasonableexpectations 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 beenmerged 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 lawyersprofessional 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 ofconfidentiality 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, suchthat 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 nexusto an underlying legal representation cannot thereby obtain the shield of the
privilege for communications about those non-legal tasks.131
However,
129RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS 72 cmt. c (2000).
130 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 theprotections 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.5.7cmt. [6]. Thus, if the lawyer has not taken affirmative steps to separate the activity from
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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 issufficiently within his professional legal competence to be subsumed by the
privilege.136
Even the simple preparation of a tax return may readilybecome the occasion for providing valuable legal advice aboutcharacterization 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 anddisputes, 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 Frederickcourt apprehended, that a taxpayerwho 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 estatetransaction, 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 theprivilege.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 resourcesprofessional 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
136United 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 attorney-
client 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 non-lawyers. 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 theclient, 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 theclient 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 intendedto 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 taxreturn, 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 ifthe 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 non-
privileged underlying financial data, simple work-sheets based solely on
140The 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 thatpeculiar 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.).
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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 insome 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, touphold 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-legalroles 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
143 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 presenceof non-legal elements within a law-related communication. Even in these
two particular business contexts, the potential for abuse is better addressedby 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 thelawyer and client in addressing a legal matter. Thus, courts should hesitate
to enunciate general rules restricting the application of the privilege to in-
house counsel or presuming that communications with lawyers that containbusiness information or considerations fall outside the privilege.
First, difficulties in identifying what role the attorney was fulfillingarise most frequently in cases involving in-house counsel who may perform
a number of functions for the corporation, only some of which place themin 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 nonlegalresponsibilities 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 pragmaticapproach in determining whether the privilege covers all or some of the
145 See RICE, supra note 24, 7:2.
146Andritz 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 legaland non-legal communications).
147RICE, 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).
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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 adevice 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 necessarilyexpanded 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 withoutdistinction 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 orlegal 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, thenthe 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 attemptto transform routine business communications into privileged attorney-
client communications. As Paul Rice writes in his treatise, [m]any courts
fear that businesses will immunize internal communications from discoveryby placing legal counsel in strategic corporate positions and funnelling
documents through counsel (viz. addressing documents to the lawyers with
148ABB Kent-Taylor, Inc. v. Stallings & Co., Inc., 172 F.R.D. 53, 55 (W.D.N.Y. 1996).
149 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 andaccompanying 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).
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copies being sent to the employees with whom communications were
primarily intended).155
Courts understandably and appropriately refuse toaccept the expediency of copying the lawyer on routine business
correspondence and memoranda as sufficient to raise the shield of privilegeover the entire content of such ordinary business documents.
156
Even in these two business contexts, the combination of business advicewith 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 relationshipbetween 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 bythe 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 aspectsof 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
155RICE, supra note 24, 7:2.
156 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 attorney-
client privileged communications.); Tri-State Equip. v. United States, No. CIVS-94-1033-EJG-
PAN, 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 thedocuments 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.
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38 DYNAMIC PRIVILEGE [16-Feb-09
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, withoutnarrowly 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 doesnot 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 factualevidence has been generated through studies and collected through
observation of data that was obtained from sources other than theclient,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 forminformation 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 lawyerssuggestions, the general rule is that [r]evealing client actions ordecisions would disclose neither the substance of the
recommendation nor the content of the clients privileged
communications upon which the decision/actions were based.167
163 See infra Part IV.B.
164Upjohn Co. v. United States, 449 U.S. 383, 395 (1981).
165United 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).166Olson 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 (andamong those who are part of the legal team) may be privileged innature, preexisting documents or documents which were not
created as communications to the attorney . . . do not becomeprivileged 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 bythe 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 makedecisions, 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 towaiver by disclosure.170
Under the crime-fraud exception to the attorney-client privilege,171 ifa client, rather than seeking legitimate legal advice, solicits
information and services from a lawyer in order to facilitate criminal
1687 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 crime-fraud 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).
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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 tothink 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 theperpetration of a fraud or a crime can safely intrust this knowledgeto 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 thatfails 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 animatingpurpose o