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16-Feb-09] Gregory C. Sisk & Pamela J. Abbate 3

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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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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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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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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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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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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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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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

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