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THE DYNAMIC ATTORNEY-CLIENT PRIVILEGE

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THE DYNAMIC ATTORNEY-CLIENT PRIVILEGE Powered By Docstoc
					         THE DYNAMIC ATTORNEY-CLIENT
                  PRIVILEGE

                                   Gregory C. Sisk*
                                Pamela J. Abbate**

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


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



    *
         Orestes A. Brownson Professor of Law, University of St. Thomas School of Law
(Minnesota) (gcsisk@stthomas.edu). For comments on an earlier draft, but reserving all
responsibility for the final version to themselves, the authors thank Tom Morgan, Ron Rotunda,
Paul Rice, Michele Beardslee, Neil Hamilton, Tom Mengler, Lyman Johnson, and Rob Vischer.
    **
         J.D. Candidate, 2009, University of St. Thomas School of Law (Minnesota).
2                               DYNAMIC PRIVILEGE                                [16-Feb-09

practices.”1 And those changes necessarily change the scope of the
attorney-client privilege as well.
    As the practice of law emerged in England as one of the original
professions,2 lawyers acted primarily as barristers in court, advocating on
behalf of their clients at trials before judges and juries.3 Early in the history
of the profession, attorneys and solicitors also became valued for their skills
in drafting elemental legal documents such as pleadings, deeds, wills, and
trusts.4 Beginning in the middle of the nineteenth century, lawyers in
America moved in greater numbers beyond the courtroom to prosper as
commercial lawyers in the post-Civil War economic boom. As corporate
businesses fourished, lawyers became business as well as legal advisors and
drafted specialized documents such as corporate charters, financial
agreements, and tax avoidance plans.5
    And so matters stood for about a century.
    In the latter part of the twentieth century, as the world of human activity
became more complex, so also did the law.6 By the turn of the century, for
a growing number of Americans, it had become “extremely difficult to
navigate through the legal web that surrounds their lives.”7 In turn, the
attorney’s practice has expanded from trying cases in a courtroom to
providing general advice to clients about the legal risks and advantages of
proposed projects, contemplated actions, and planned relationships. As the

    1
          James W. Jones, The Challenge of Change: The Practice of Law in the Year 2000, 41
VAND. L. REV. 683, 683 (1988) (“Some twenty years ago the legal profession was remarkably
stable, having changed little in the preceding 100 years.”).
     2
          On the law as a profession and vocation, see generally Neil W. Hamilton, The Future
of Callings—An Interdisciplinary Summit on the Public Obligations of Professionals into the
Next Millennium, 25 WM. MITCHELL L. REV. 45 (1999). For a general discussion of what it
means to to say that the law is a “profession,” including certification, peer review, control of
competition and advertising, public service, and fiduciary responsibilities, see RONALD D.
ROTUNDA & JOHN S. DZIENKOWSKI, PROFESSIONAL RESPONSIBILITY: A STUDENT’S GUIDE § 1-6,
at 29-40 (2008-09).
     3
          GEOFFREY C. HAZARD, JR. & DEBORAH L. RHODE, THE LEGAL PROFESSION:
RESPONSIBILITY AND REGULATION 21 (3d ed. 1994); Charles L. Brieant, Is It the End of the
Legal World as We Know It?, 20 PACE L. REV. 21, 23 (1999).
     4
          HAZARD & RHODE, supra note 3, at 21; Brieant, supra note 3, at 23.
     5
          LAWRENCE FRIEDMAN, A HISTORY OF AMERICAN LAW 633-35 (2d ed. 1985); Brieant,
supra note 3, at 23.
     6
          See Jones, supra note 1, at 684-85.
     7
          Soha F. Turfler, Note, A Model Definition of the Practice of Law: If Not Now, When?
An Alternative Approach to Defining The Practice of Law, 61 WASH. & LEE L. REV. 1903, 1904
(2004) (“[W]e are all subject in our social and working lives, to a body of legal rules and
principles that is so vast, diverse, and complicated that no one can understand their full
applicability and impact.” (citing RICHARD SUSSKIND, THE FUTURE OF LAW: FACING THE
CHALLENGES OF INFORMATION TECHNOLOGY 13 (1996))).
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 Beyond
the fast-changing economic situation, social and cultural revolutions have
required lawyers to play expanding roles and offer additional or even
interprofessional services in fields like family and elder law that directly
affect human thriving and intimate relationships.9
    As a result of the extraordinary changes in the economy and society and
complementary complexities in the law, the range of services offered by
today’s lawyers to their clients is far broader and more diverse than at any
previous time in the history of the legal profession.10 Although the place
and responsibility of the lawyer was once “fairly well defined,”11 the
lawyer’s professional role can no longer be delineated with precision, in
substantial part because the line between legal and non-legal matters can no
longer be easily drawn. One commentator observes that, in years past, “one
could distinguish with relative ease between ‘legal’ matters on which the
lawyer focused and ‘business’ matters that were the province of the
client.”12 The line between legal and non-legal subjects has become
blurred, and a lawyer is “almost as likely to be focusing on economic,
scientific, financial, or political questions as on strictly legal issues.”13
    At the same time that upheavals in the economy and society have
provoked an expansion of the law and changes in the scope of legal
practice, the legal profession has been engaged in a concerted effort, led by
both members of the practicing bar and legal academics, to rediscover the
traditional role of the lawyer as moral counselor.14 In offering what perhaps
was the original “law-related service,”15 lawyers always have been
encouraged to “refer not only to the law but to other considerations such as
moral, economic, social and political factors, that may be relevant to the
client’s 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.
     15
          MODEL RULES OF PROF’L CONDUCT R. 5.7 (2008) [hereinafter MODEL RULES]
(establishing the lawyer’s 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.
4                               DYNAMIC PRIVILEGE                                [16-Feb-09

should be understood to refer not only to the growing interconnection
between legal and economic matters but also to the longstanding and
commendable integration of legal sanctions with moral principles when
lawyers counsel clients.17
     The attorney-client privilege allows clients to communicate concerns
about their legal problems with their legal counselors, without fear that the
communication might subsequently be used as evidence against them.18 It
is the client’s pursuit of legal advice that triggers the privilege. By contrast,
when a person contacts a lawyer for mere extra-legal purposes or
communicates with a lawyer for reasons other than seeking legal advice to a
legitimate end, the privilege does not attach or may be lost.
    Yet, the categories of matters that come within the scope of legal
representation today may be very broad indeed.19 The growth of legal rules
and the proliferation of government regulation have left very few aspects of
human activity and relationships untouched by law. Even persons not
contemplating litigation, considering a transaction, or seeking preparation
of a legal document nonetheless may seek the advice of a lawyer about the
legal implications of diverse forms of human conduct and associations. To
provide effective representation, the lawyer may need to bring to bear
expertise, knowledge, skills, and services beyond what traditionally was
regarded as “legal” in nature.
    As the scope of the practice of law expands, so also should the defining
compass of the attorney-client privilege (and the attendant expectations of
attorney confidentiality).20 When a matter with a meaningful legal
dimension is brought to a lawyer, the courts increasingly recognize that the
animating purpose of the attorney-client privilege is best realized by
allowing the lawyer and client to fully explore both legal and non-legal
aspects in a holistic manner. In addition, if we wish to encourage lawyers
and clients to engage in moral deliberation, the confidential shield of the
privilege must cover introduction of such non-legal principles into the
discussion.21 Accordingly, the scope of the privilege should correspond to
the dynamic changes in the practice of law. As the parameters of what
constitutes the practice of law expand, together with the introduction of
law-related services, the contours of the attorney-client privilege should be
adjusted proportionally.

    17
          See infra Part IV.B.
    18
          On the attorney-client privilege and its general elements, see infra Part III.
     19
          On the expansion of the practice of law, see infra Part II.
     20
          On the attorney client privilege as applied to the expanding nature of the practice of
law, see infra Part IV.A.
     21
          On moral deliberation and the attorney-client privilege, see infra Part IV.B.
16-Feb-09]              Gregory C. Sisk & Pamela J. Abbate                                   5


    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 nation’s history.
          Enterprises were smaller, bookkeeping was not a big deal, and
          businessmen did not seek business advice either from lawyers
          or accountants. . . . Events of the last fifty years have had the
          effect of raising the comparative standing of lawyers, both
          financially and in the quality and extent of the services they
          offer. (Judge Charles L. Brieant, United States District Court
          for the Southern District of New York)22


    In the modern world, lawyers act in multiple capacities to protect the
legal interests of their clients and provide comprehensive counseling about
the nature and requirements of the law. As was the traditional role of the
attorney, a lawyer may be an advocate, in court or another forum, who
zealously asserts the interests and promotes the positions of his or her client.
With the increasingly omnipresent intrusion of the law into every nook and
cranny of human activity, a lawyer may serve as a general advisor, who
translates the generality of the law into specifically-applicable information
for the client so that the client may conform his or her behavior to the
expectations of the law, plan for the future, or invoke the protections of the
law.23 Because of expertise and experience in advocacy as well as an
educated understanding of the legal implications underlying business and
other transactions, the lawyer may serve as a negotiator, who seeks a result
legally advantageous to a client while dealing honestly with others in
reaching an agreement.24 When the client seeks to assess the state of its

    22
           Brieant, 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 Their
Clients, 67 S. CAL. L. REV. 507, 547-48 (1994) (explaining that in negotiations, “[l]awyers’
skills are required to recognize where legal advantages can be found and to determine what they
are worth”); E. Norman Veasey & Christine T. Di Guglielmo, The Tensions, Stresses, and
Professional Responsibilities of the Lawyer for the Corporation, 62 BUS. LAWYER (Nov. 2006),
at 1, 27 (describing negotiation as “a classic and traditional function of a lawyer”). But see
Georgia-Pacific Corp. v. GAF Roofing Mfg. Corp., No. 91 Civ. 5125 (RPP), 1996 WL 29392,
at *4 (S.D.N.Y. Jan. 25, 1996) (holding that, while negotiating the environmental terms of a
6                                DYNAMIC PRIVILEGE                                  [16-Feb-09

legal affairs or another person seeks a review of a client’s legal situation
before entering a transaction, the lawyer may serve as an evaluator who
investigates and reports on the client’s situation.25
    In undertaking any of these professional responsibilities, the lawyer is
held to a standard of competence, which today often requires more than
formal legal training and facility with the traditional sources and processes
of the law. While the lawyer’s 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 lawyer’s evaluation of other factors of
practical, economic, emotional, or moral importance to the client. As a
federal court of appeals remarked recently:
             The complete lawyer may well promote and reinforce the
         legal advice given, weigh it, and lay out its ramifications by
         explaining: how the advice is feasible and can be implemented;
         the legal downsides, risks and costs of taking the advice or
         doing otherwise; what alternatives exist to present measures or
         the measures advised; what other persons are doing or thinking
         about the matter; or the collateral benefits, risks or costs in
         terms of expense, politics, insurance, commerce, morals, and
         appearances.27
    To be such a “complete lawyer,” the attorney must be a jack-of-all-
trades—or at least sufficiently grounded in the real-world circumstances of
the field of law to which he or she devotes the law practice. Legal advice
offered in the abstract, formulated in the splendid isolation of a law library
and drawing only on the texts and sources of the legal discipline, may fail to
connect with the needs of the client for relevant guidance that leads to an
informed decision. “[I]n today’s litigious, regulated, complicated world,”




contract, the in-house lawyer was “not ‘exercising a lawyer’s 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] lawyer’s assistance is legal in
nature if the lawyer’s professional skill and training would have value in the matter”).
      27
           In re County of Erie, 473 F.3d 413, 420 (2d Cir. 2007).
16-Feb-09]              Gregory C. Sisk & Pamela J. Abbate                                    7

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




    28
         Michele DeStefano Beardslee, The Corporate Attorney-Client Privilege: Third Rate
Doctrine for Third Party Consultants, SMU L. REV. (forthcoming 2009).
     29
         Working Notes: Deliberations of the ABA Committee on Research About the Future of
the Legal Profession on the Current Status of the Legal Profession, 17 ME. BAR J. 48, 56 (2002).
     30
         See Jones, supra note 1, at 685 (“This complexity has led to more specialization within
the practice of law and has spawned an interdisciplinary approach to problem solving that
would have been rare twenty years ago”).
     31
         Is Ancillary Business the Future?, PROF. LAW., Summer 1989, at 1 (internal quotation
marks omitted).
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 role
of lawyers in the lives of many Americans. Traditionally, family disputes
were considered private matters to be addressed within the family or other
informal social groups, without public intervention.32 Today, however,
married and unmarried couples and families with children regularly turn to,
or are brought inside, the legal system to resolve disputes.33
    Although lawyers practicing family law still rely on the basic set of
lawyering skills, modern family law practice also “requires multiple
knowledge bases and competencies, particularly with respect to balancing
advocacy and counselor roles.”34 Increases in divorce filings, custody
battles, petitions to terminate parental rights, and paternity proceedings have
dramatically altered an attorney’s role in the practice of family law. To
competently and conscientiously serve clients today, the family law
practitioner must “know far more than the law.”35 The family law attorney
must possess—
         strong interpersonal skills like listening, negotiation, and
         working with clients in emotional crisis, as well as keen
         understanding of financial issues in family law, the impact of
         separation and divorce on children, and the ethical dimensions
         of family law practice.36
In addition, the successful family lawyer needs training in child
development and family processes. By both knowing the legal standards
and being able to draw upon “the wisdom mental health professions have
accumulated about children and human nature from years of study,
supervision, research, and analysis,” the family law practitioner will better

    32
          Ann Laquer Estin, Family Governance in the Age of Divorce, UTAH L. REV. 211
(1998) (citing Kilgrow v. Kilgrow, 107 So. 2d 885, 888 (Ala. 1958), in which the court refused
to intervene in a dispute between divorced parents over whether their child should attend public
or parochial school; and McGuire v. McGuire, 59 N.W.2d 336, 342 (Neb. 1953), in which the
court stated that “the living standards of a family are a matter of concern to the household, and
not for the courts to determine”).
     33
          See Marsha Kline Pruett, Mental Notes: Reform As Metaphor and Reality, 44 FAM. CT.
REV. 571, 571 (2006); see also Robert J. Sheran & Douglas K. Amdahl, Minnesota Judicial
System: Twenty-five Years of Radical Change, 26 HAMLINE L. REV. 219, 328-36 (2003)
(reporting comments of judges and practitioners on the changing role of Minnesota courts on
family law matters in recent decades).
     34
          Pruett, supra note 33, at 572.
     35
          Timothy Hedeen & Peter Salem, What Should Family Lawyers Know? Results of a
Survey of Practitioners and Students, 44 FAM. CT. REV. 601, 601 (2006).
     36
          Id.
16-Feb-09]              Gregory C. Sisk & Pamela J. Abbate                                  9

be able to avoid or respond to contention in sensitive situations, such as
disputes about child custody or access.37
    Moreover, the field of family law has evolved away from a highly
adversarial system.38 Family lawyers serve their clients today as mediators,
arbitrators, collaborative lawyers, cooperative lawyers, and parenting
coordinators, bringing to bear extensive knowledge and hard-won
experience in family dispute resolution.39 For example, Bruce Winick
describes Therapeutic Jurisprudence, which is particularly well-suited to the
family law area, as “suggesting the need for law makers and law appliers to
be sensitive to the law’s impact on [the] psychological health” of clients and
others involved in the legal system.40 By expecting lawyers (and other legal
actors) “to perform their roles with an awareness of basic principles of
psychology,”41 therapeutic jurisprudence is yet another way in which
meeting the real needs of clients demands a “broadened conception of the
professional role.”42
   Prominent among the skills necessary for the modern family law
practitioner, and lawyers in many other fields as well, is the ability to
provide effective counseling about non-legal considerations.         One
commentator notes:
             Lawyers must often be more than lawyers. As they have for
         centuries, lawyers face clients’ family problems, business
         problems, and life problems, which lead lawyers at times to go
         beyond the legal issues and counsel clients on the moral,
         economic, and other nonlegal factors affecting their situations.43
    Counseling by lawyers that extends to factors not traditionally
designated as “legal” is especially common in family law because it is
essential to the health of the attorney-client relationship, the success of the
representation, the achievement of the client’s personal objectives, and the
effectiveness of the family law dispute resolution system. For example, the

    37
        Pruett, supra note 33, at 573.
    38
        Hedeen & Salem, supra note 35, at 601.
    39
        See id. at 602.
    40
        Bruce J. Winick, Redefining the Role of the Criminal Defense Lawyer at Plea
Bargaining and Sentencing: A Therapeutic Jurisprudence/Preventive Law Model, 5 PSYCHOL.
PUB. POL’Y & L. 1034, 1039 (1999).
    41
        Id.
    42
        Bruce J. Winick, Using Therapeutic Jurisprudence in Teaching Lawyering Skills:
Meeting the Challenge of the New ABA Standards, 17 ST. THOMAS L. REV. 429, 439 (2005)
(“Lawyers embracing this broadened conception of the professional role must strive to avoid or
minimize imposing psychologically damaging effects on their clients.”).
    43
        Larry O. Natt Gantt, II, More Than Lawyers: The Legal and Ethical Implications of
Counseling Clients on Nonlegal Considerations, 18 GEO. J. LEGAL ETHICS 365, 365 (2005).
10                               DYNAMIC PRIVILEGE                                [16-Feb-09

American Academy of Matrimonial Lawyers (AAML) encourages lawyers
to counsel their clients on multiple non-legal aspects of the divorce
process.44 Standard 1.2 of the Competence and Advice section of the
AAML Bounds of Advocacy states: “An attorney should advise the client
of the emotional and economic impact of divorce and explore the feasibility
of reconciliation.”45 While a family law attorney may have no formal
obligation “to attempt to save a client’s marriage, family practitioners
routinely explore the client’s feelings about reconciliation early in the client
relationship.”46


          B.       Corporate Law
    Although extra-legal counseling on moral, social, and other matters
pertinent to legal advice may emerge more readily when intimate personal
matters are at stake, a more robust understanding of counseling by lawyers
is hardly unique to family law. Sweeping changes in the modern
competitive and global economy, forms and means of doing business, and
regulatory environment have made it essential for lawyers who advise
corporations and other business associations to evolve in their role and offer
a broader array of legal and law-related services. The augmentation and
amplification of law in our society has played a leading role in bringing
about that transformation in the scope of corporate law practice. Richard
Painter observes:
          Just as the creation of railroads and a banking system in the
          nineteenth century was a legal as well as a business enterprise,
          legal risks in many of today’s 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
16-Feb-09]               Gregory C. Sisk & Pamela J. Abbate                                  11

    The traditional role of corporate attorneys was legal counselor for
business leaders.48 That role has expanded significantly, as the business and
legal environment have changed. Business leaders today increasingly “look
to attorneys for not only legal but business advice as well.”49 To be trite,
because “the business of business is business,” the lawyer must be know the
client’s business and offer business-relevant advice if legal counsel is to
have any practical value.
    The integration of law and business advice has social value as well. As
Neil Hamilton reminds us, “[o]ur profession plays a critical role in fostering
and maintaining the foundation of moral capital on which trust in the
economic system or in any individual enterprise rests.”50 Without an
understanding of a particular business, an appreciation of its culture and
ethics, and an ability to shape advice to the business needs of the entity, a
lawyer’s command of corporate law will be to little avail and the lawyer’s
counsel will neither be useful in a practical sense nor serve to guide the
business as a responsible and honorable economic actor.51
    By necessity in today’s regulatory, legal, and business climate, lawyers
for business organizations also have become responsible for a variety of
what traditionally were regarded as “nonlegal tasks such as negotiating
contracts, analyzing potential corporate transactions, and investigating
potential claims.”52 Yet in performing such tasks, which may be seen as
non-legal if viewed in isolation or performed by someone other than a
legally-educated professional, the lawyer evaluates each matter from a
distinctly legal perspective, identifying the legal implications, verifying
compliance with regulatory regimes, looking for the advantages and
disadvantages offered or posed by legal standards, and assessing the legal
risks.53 Because corporate clients expect their counsel to be familiar with


instinctive matter.” (quoting Bryson P. Burnham, The Attorney-Client Privilege in the
Corporate Arena, 24 BUS. LAW. 901, 913 (1969))).
     48
          Greg Billhartz, Can’t 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 Lawyer’s
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
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 to
meet the demands of their clients.”54
    Non-legal counseling provided by lawyers to corporate clients attendant
to providing legal advice and assistance extends beyond business, financial,
and scientific factors to include moral and ethical issues. Especially in a
post-Enron world, “lawyers not only can but also should counsel clients on
nonlegal issues, particularly moral concerns” in corporate practice.55
    Nor may such considerations legitimately be characterized as falling
outside of the realm of corporate law. The American Law Institute’s
Principles of Corporate Governance state: “Even if corporate profit and
shareholder gain are not thereby enhanced, the corporation, in the conduct
of its business, . . . may take into account ethical considerations that are
reasonably regarded as appropriate to the reasonable conduct of business.”56
The accompanying comment to this section of the Principles explains that
“[c]orporate officials are not less morally obliged than any other citizens to
take ethical considerations into account, and it would be unwise social
policy to preclude them from doing so.”57 In sum, the nation’s leading law
reform organization has offered a “strong suggestion” that lawyers offer
their views on the non-legal issues surrounding the corporation’s 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 Ass’n, In-House
Counsel for the 21st Century (2001), http://www.acc.com/Surveys/CEO/ (survey of 149 senior
corporate executives of companies with 100 or more employees reporting that business
corporations desire their counsel to serve roles beyond those traditionally regarded as legal,
including, in the order of importance, being an educator on legal issues, ethics advisor, sounding
board and confidant, compliance officer, and business/contract negotiator); Ben Heineman, Jr.,
Law and Leadership, 56 J. LEGAL EDUC. 596, (2006) (saying, as the former general counsel of
General Electric, “[w]e are seeking lawyers who think about the ethical, reputational, and
enlightened self-interest of their client or the institution they are leading, not just about what is
strictly legal or advantageous in the short term.”).
16-Feb-09]             Gregory C. Sisk & Pamela J. Abbate                               13

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

    59
          42 U.S.C. § 6961.
    60
          42 U.S.C. § 9620(a).
     61
          33 U.S.C. §§ 1251-1387.
     62
          42 U.S.C. §§ 7401-7671q.
     63
          Jay G. Martin, Conducting a Successful Internal Environmental Investigation, in 3
ENVTL. LAWYER 734 (1999).
     64
          Daniel M. Steinway, Environmental Claims, 8 BUS. & COM. LITIG. FED. CTS. § 95:2
(2d ed., 2006).
14                              DYNAMIC PRIVILEGE                                [16-Feb-09

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



     65
         Rebecca Fiechtl, Know When to Hold ‘Em: Minimizing Disclosure of Corporate
Environmental Information, 31 ENVTL. LAW 951, 952 (2001).
     66
         See Olen Properties Corp. v. Sheldahl, Inc., No. No. CV 91-6446-WDK (Mcx), 1994
WL 212135, at *1 (C.D. Cal., Apr. 12, 1994) (holding that consultant’s environmental audit,
which was prepared “to gather information for [the company’s] attorneys to assist the attorneys
in evaluating compliance with relevant laws and regulations,” and thus had “been prepared for
the purpose of securing an opinion of law,” was privileged and need not be produced in
discovery). For further discussion of scientific reports and the privilege, including the non-
privileged nature of underlying factual evidence, such as raw data, see infra notes 165-166 and
accompanying text.
     67
         See MLC Auto. LLC v. Town of Southern Pines, No. 1:05cv1078, 2007 WL 128945,
at *1-4 (M.D.N.C. Jan. 11, 2007) (holding all communications between the lawyer and an
independent engineer hired for the development of automobile dealerships were privileged
because the engineering information facilitated the lawyer’s legal assistance with respect to
regulatory requirements and obtaining necessary government permits).
16-Feb-09]             Gregory C. Sisk & Pamela J. Abbate                              15

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


         D.      Elder Law
   As “Elder Law has come of age” as a legal specialty,69 the services
provided by lawyers who serve senior citizens have diversified to keep pace
with new developments in the law affecting senior citizens and with our
growing appreciation for and understanding of that segment of our
population.
    Traditionally, legal representation of the older client consisted of little
more than estate planning, which remains central to elder law today but has
more dimensions of complexity than in the past. Today, a lawyer practicing
in the elder law field must be knowledgeable about Medicare, Medicaid,
Social Security, public benefits, long-term care, and advance directives.70
Moreover, an elder law attorney may encounter a wide range of legal issues
sweeping across multiple fields of law, from age discrimination in
employment and housing to options for ensuring control of one’s financial
affairs and finding the resources to pay for medical care and culminating
with the direction of medical treatment in the final days of life. The
lawyer’s role may include “disability planning, asset management, asset
dispersal, and navigating the slippery slope between mental and physical
capacity and incapacity.”71
    To address one of the most pressing needs for many elderly clients,
lawyers offer a service that might not have been considered “legal” in
nature in a simpler era: helping clients qualify for public benefits to cover
medical care while protecting assets to the extent legally permitted. For
many of today’s 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 retirement—and 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
    68
          MODEL RULES R. 5.7 cmt. [9]. On law-related services, see infra Part IV.A.2.
    69
          Margaret Graham Tebo, Elder Law Grows Up: It Takes a Lot More Than a Little
Estate Planning to Address the Increasingly Complex Legal Issues Facing Seniors, A.B.A.J.,
March 2002, at 42.
     70
          See id.
     71
          Steven H. Hobbs & Fay Wilson Hobbs, The Ethical Management of Assets of Assets
for Elder Clients: A Context, Role and Law Approach, 62 FORDHAM L. REV. 1411, 1420 (1994).
     72
          Tebo, supra note 69, at 42.
     73
          Id.
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, one
infused not only with legal complexity but also with emotional delicacy.
Elder law lawyers help clients prepare living wills (by which individuals
attempt to control their medical care in the event that they become mentally
incapacitated) and health care powers-of-attorney (which name a surrogate
decision maker with authority to act in the event of the person’s
incapacity).74 When drafting these instruments, lawyers must ask clients
probing questions about medical conditions and potential treatment,
interjecting explanations about the situations that might arise, all while
taking into consideration the client’s moral and religious beliefs. The
ensuing discussion may be extremely wide-ranging in subject and
penetrating in nature. Although the lawyer’s deliberation with the client
revolves around the preparation of legal documents, the lawyer must also be
familiar with potential medical situations and be prepared to assist the client
in identifying and evaluating moral and religious considerations. Within
this dialogue, elder law attorneys often must counsel a client who is
unprepared for or uncomfortable in talking about death.
    Moreover, when the client is a person of diminished capacity, the lawyer
must display the respect and maintain the patience necessary to permit that
person to participate to the extent possible in making important decisions
about his or her life.75 The lawyer who undertakes representation of a
person with diminished capacity must be prepared to devote greater
personal attention, provide more detailed and repeated explanations, consult
with other important persons in the client’s life, accommodate the
disabilities of the client, and consult professionals in other disciplines as
appropriate. Indeed, “a lawyer who is oblivious to the special needs of
clients with diminished capacity could be disciplined” under the
professional responsibility rules.76



     74
           Id. at 44-45.
     75
           On the lawyer’s professional responsibilities with respect to clients with diminished
capacity, see MODEL RULES R. 1.14.
     76
           1 GEOFFREY C. HAZARD, JR. & W. WILLIAM HODES, THE LAW OF LAWYERING § 18.4,
at 18-9 (3d ed., 2005) (explaining that the “chief mission” of paragraph (a) of Rule 1.14 “is
simply to ensure that lawyers adequately think through the difficult problems associated with
representation of clients with some form of diminished capacity,” but that “a lawyer who is
oblivious to the special needs of clients with diminished capacity could be disciplined” under
the rule).
16-Feb-09]              Gregory C. Sisk & Pamela J. Abbate                                  17

   Because of “the nature of the issues an elder client brings to the office
and the values implicit in elder law,” this area of practice contemplates a
“unique role for the attorney.”77 As Steven and Fay Hobbs explain:
         The tasks confronting the lawyer are varied and complex and
         often require the use of non-legal skills such as counselling,
         reconciliation, and the sensitive chore of dealing with the
         emotions and fears of individuals facing the concluding chapters
         of their lives.78
    In addressing core legal issues, the elder law practitioner may benefit
from “interprofessional collaboration,”79 drawing upon such non-legal skills
as psychological and social work counseling, either through the lawyer’s
own supplemental professional training or by association with professionals
in other disciplines.80 Jennifer Wright describes an interprofessional elder
law clinic, in which counseling professionals (or counseling students) have
become “essential to identifying and addressing underlying problems which
may give rise to repeating legal issues” and, more generally, by
“provid[ing] a necessary support to clients who find the legal process
intimidating, confusing, and stressful.”81 In such an integrated practice, the
provision of non-legal professional services may become intertwined with
and vital to an effective and holistic legal representation. When such
interdisciplinary services are performed for the purpose of obtaining legal
advice or facilitating the legal representation, they become assimilated with
the legal services.


         III.    THE ATTORNEY-CLIENT PRIVILEGE AND THE
                COMMUNICATIONS TO WHICH IT APPLIES
         In a society as complicated in structure as ours and governed by
         laws as complex and detailed as those imposed upon us, expert
         legal advice is essential. To the furnishing of such advice the
         fullest freedom and honesty of communication of pertinent facts

    77
           Hobbs & Hobbs, supra note 71, at 1428.
    78
           Id. at 1420.
     79
           Jennifer L. Wright, Therapeutic Jurisprudence in an Interprofessional Practice at the
University of St. Thomas Interprofessional Center for Counseling and Legal Services, 17 ST.
THOMAS L. REV. 501, 501 (2005).
     80
           See Heather A. Wydra, Note, Keeping Secrets Within the Team: Maintaining Client
Confidentiality While Offering Interdisciplinary Services to the Elderly Client, 62 FORDHAM L.
REV. 1517, 1517 (1994) (“An attorney serving the elderly client may need to work as part of an
interdisciplinary team including physicians, psychologists, social workers, accountants, or
clergy.”).
     81
           Wright, supra note 79, at 507.
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 of
          lawyers acting for their clients is believed to outweigh the harm
          that may come from the suppression of the evidence in specific
          cases. (American Law Institute, Model Code of Evidence Rule
          210, Comment)82


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

     82
          American Law Institute, Model Code of Evidence Rule 210, Comment (1942) (quoted
in United States v. United Shoe Mach. Corp., 89 F. Supp. 357, 358 (D. Mass. 1950)).
     83
          See Geoffrey C. Hazard, Jr., An Historical Perspective on the Attorney-Client
Privilege, 66 CAL. L. REV. 1061, 1061 (1978) (“The attorney-client privilege may well be the
pivotal element of the modern American lawyer’s 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).
16-Feb-09]               Gregory C. Sisk & Pamela J. Abbate                                  19

a strong attorney-client relationship and ensuring that the lawyer obtains the
information necessary to serve the client well. In addition, by allowing
lawyers and clients to engage with difficult problems by considering the full
spectrum of legal and moral dimensions, the privilege also promotes the
public interest in obedience to the rule of law and advancement of the
common good.87
    “The attorney-client privilege is the oldest of the privileges for
confidential communications known to the common law.”88 While the
lawyer generally is obliged to protect all information relating to the
representation and not voluntarily disclose such information,89 the lawyer
nonetheless may be required to respond to a lawful subpoena or court order
that seeks information outside the parameters of a legally-recognized
privilege.90 But the lawyer should not be forced to divulge the substance of
communications falling within a privilege and indeed must take appropriate
steps to assert and competently advance a privilege in response to any
request. Thus, the contents of communications between an attorney and a
client constitute a specially-protected category of confidential information.
    The modern statement of the four basic elements of the attorney-client
privilege is stated succinctly in the Restatement of the Law Governing
Lawyers approved by the American Law Institute in 2000: “(1) a
communication (2) made between privileged persons (3) in confidence (4)
for the purpose of obtaining or providing legal assistance for the client.”91
    By this understanding, attorney-client communications are preserved
inviolate so clients can speak freely about their legal problems without fear

    87
          See infra notes 175-176 and accompanying text.
    88
          Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).
     89
          See supra note 85.
     90
          See ROTUNDA & DZIENKOWSKI, supra note 2, § 1.6-1, at 220-21 (describing the
distinction between the ethical rule of confidentiality and the evidentiary privilege).
     91
          RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 68 (2000). The
traditional formulation of the attorney-client privilege contained eight elements:
               (1) Where legal advice of any kind is sought (2) from a professional
          legal adviser in his capacity as such, (3) the communications relating to that
          purpose, (4) made in confidence (5) by the client, (6) are at his insistence
          permanently protected (7) from disclosure by himself or by the legal adviser,
          (8) except the protection be waived.
8 JOHN H. WIGMORE, EVIDENCE § 2290 (McNaughton rev. 1961). The law has evolved to
modify some of the traditional elements, for example, now including prospective as well as
actual clients within the protection, RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS
§§ 15, 70 68 (2000); applying to communications with both professionals admitted to the bar
and “someone whom the client or prospective client reasonably thinks is a lawyer,” ROTUNDA
& DZIENKOWSKI, supra note 2, § 5.5-5, at 988; and extending not only to communications by a
client to a lawyer but also to the lawyer’s side of the conversation, thus including “both up and
downstream communications,” 1 HAZARD & HODES, supra note 76, § 9.7, at 9-26.
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 with
the purpose of obtaining legal counsel, the communications that follow are
privileged. It is the client’s pursuit of legal advice or assistance that triggers
the privilege.92
    By contrast, when a person contacts a lawyer for extra-legal purposes or
communicates with a lawyer for reasons other than seeking legal advice or
assistance to a legitimate end, the privilege does not attach or may be lost.
Conversations with people who happen to be lawyers do not come under the
shield of confidentiality unless those conversations are a prelude to and
become part and parcel of a legal representation. Thus, the lawyer’s
chewing the fat with a friend or fishing buddy or chatting with a business
acquaintance or neighbor will not be afforded the privilege93—unless that
person also seeks the lawyer’s legal advice or assistance.
    Despite these exceptions and limitations, when a client or prospective
client talks with a lawyer, the substance of those communications is
presumptively privileged.94 Both because of transformations in modern
legal practice95 and to encourage moral deliberation between attorneys and
clients as part of the legal representation,96 the attorney-client privilege
should be understood to adjust dynamically with changes in the scope of the
practice of law and to affirm a renewed appreciation of the moral essence of
the attorney-client relationship.


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




     92
          See Fisher v. United States, 425 U.S. 391, 403 (1976) (“[The privilege] protects only
those disclosures—necessary to obtain informed legal advice—which might not have been
made absent the privilege.”).
     93
          See Payton v. New Jersey Turnpike Authority, 691 A.2d 321, 334 (1997) (“An
attorney who is not performing legal services or providing legal advice in some form does not
qualify as a ‘lawyer’ for purposes of the privilege.”); Radiant Burners, Inc. v. American Gas
Association, 320 F.2d 314 (7th Cir. 1963) (“[I]t seems well settled that the requisite professional
relationship is not established when the client seeks business or personal advice, as opposed to
legal assistance.”).
     94
          See infra note 196 and accompanying text.
     95
          See infra Part IV.A.
     96
          See infra Part IV.B.
16-Feb-09]              Gregory C. Sisk & Pamela J. Abbate                               21

         A.       The Attorney-Client Privilege and the Practical
                  Reality of the Changing Scope of Legal Practice
         In the traditional view of lawyering, lawyers provide legal
         services (and nothing else) to clients, while any professional
         services provided by non-lawyers are by definition not legal
         services. In reality, such a rigid separation has never been
         supportable, and there is no clear divide between a core of
         “legal” service and services that are “ancillary” or “law-
         related.” (Professors Geoffrey C. Hazard, Jr., and W. William
         Hodes)97


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




    97
          2 GEOFFREY C. HAZARD, JR. & W. WILLIAM HODES, THE LAW OF LAWYERING § 48.2,
at 48-4 (Aspen, 3d ed., 2005).
     98
          See Grace M. Giesel, The Legal Advice Requirement of the Attorney-Client Privilege:
A Special Problem for In-House Counsel and Outside Attorneys Representing Corporations, 48
MERCER L. REV. 1169, 1171 (1997) (speaking about in-house counsel).
     99
          See supra notes 27, 66-67 and accompanying text and infra notes 104, 108-112, 127-
128 and accompanying text.
22                                DYNAMIC PRIVILEGE                                   [16-Feb-09

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




     100
           By speaking of the practice of law as it evolves to serve clients in the modern world,
this essay focuses on those services provided directly by a lawyer or by non-lawyer consultants
to facilitate the work of a lawyer as part of a law practice addressing the legal needs of a client.
On the attorney-client privilege as applied to third party consultants, see generally Beardslee,
supra note 28, at 9, 63-84 (advocating a rule under which the privilege applies if there is “a
strong nexus between the consultant’s service and the legal advice ultimately provided to the
client”). Under Rule 5.4 of the Model Rules of Professional Conduct, a lawyer may not practice
law in any arrangement under which a layperson holds a position of authority or control so as to
intrude into the lawyer’s relationship with a client or to control or direct the lawyer’s exercise of
professional judgment. MODEL RULES R. 5.4(b), (d). This essay does not address the
implications of the privilege for what in most jurisdictions is a presently-unauthorized
multidisciplinary practice that would join lawyers and professionals or service-providers in
other disciplines as equal partners in a combined practice organization. A lawyer may employ
another professional, such as a certified public accountant or a medical practitioner, to serve as
part of the legal team, but only when that person remains a subordinate of the lawyer and is not
placed into either a superior or co-equal position of authority, such as a partner, shareholder, or
co-director of a law firm. On the managerial or supervisory lawyer’s responsibilities for
nonlawyer assistances, see MODEL RULES R. 5.3.
     101
           See supra Part II.
     102
           Painter, supra note 24, at 537-38.
     103
           Id. at 544.
16-Feb-09]               Gregory C. Sisk & Pamela J. Abbate                                   23

like commenting upon and editing television ads and other promotional
materials could, in fact, be legal advice.’”104
    Lest a non-legal element should become the tail that wags the dog, a
clear and significant nexus between attorney-client communications and
legal advice or assistance is rightly expected. In classifying the character of
the communication, the crucial inquiry is the intent of the client in deciding
to approach the lawyer, whether the goal is to obtain legal counsel, even if
other dimensions of a matter are addressed as well.105
    For purposes of the privilege, courts generally have described the
standard as whether a communication is “primarily” or “predominantly”
legal in nature, that is, designed to obtain or facilitate legal advice or
assistance.106 On occasion, a court may apply this primary legal purpose
test in a mechanical manner, by evaluating the content of the
communication through what looks to be a quantitative measure of whether
legal or non-legal topics take up more space in the subject
communications.107 However, leading courts instead apply a qualitative
approach, asking whether the purported purpose in seeking legal advice or
assistance was a sincere and meaningful element of the overall exchange.
Thus, in In re Ford Motor Co., one federal court of appeals upheld the
protection of the privilege over corporate committee meeting minutes by
emphasizing that the matter was “infused with legal concerns.”108 This
court concluded that the client had “secur[ed] legal advice,” even though the

    104
          In re Vioxx Prod. Liability Litigation, 501 F. Supp. 2d 789, 800 (E.D. La. 2007)
(quoting and adopting report of Special Master Paul Rice on application of the privilege to a
manufacturer in the highly regulated drug industry).
     105
          See RICE, supra note 24, § 7:1 (“The client’s 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 Nat’l Life Ins. Co., 563 N.Y.S.2d 491, 492
(N.Y. Sup. Ct., App. Div. 1990) (saying, without explanation, that documents “concern both the
business and legal aspects of the defendants’ ongoing negotiations with the plaintiff with respect
to the business transaction,” that the documents therefore “were not primarily of a legal
character, but expressed substantial non-legal concerns,” and thus the documents were not
covered by the privilege).
     108
          In re Ford Motor Co., 110 F.3d 954, 966 (3d Cir. 1997); see also Southeastern Pa.
Transp. Auth. v. CaremarkPCS Health, L.P., 254 F.R.D. 253, 262 (E.D. Pa. 2009) (explaining
that “the mere fact that business concerns may have motivated the communication at issue does
not render the documents unprivileged because. . . any business decisions made were ‘infused
with legal concerns and [were] reached only after securing legal advice;’” (citation omitted)).
24                                DYNAMIC PRIVILEGE                                   [16-Feb-09

ultimate decision may have been “driven . . . principally by profit and loss,
economics, marketing, public relations, or the like.”109 In In re Erie
County, another federal court of appeals explained that the gravamen of a
communication should not “be ascertained by quantification or
classification of one passage or another;” rather, “it should be assessed
dynamically and in light of the advice being sought or rendered.”110
    Designating the privilege inquiry as a “primary” or “predominant” legal
purpose test may be unfortunate and misleading. Although most courts
have looked beyond the label to focus on the qualitative character of the
communication, the presentation of the test as a “primary” or
“predominant” may mislead the lawyers or judges to conduct a subjective,
post hoc, and mechanical quantification of the legal versus non-legal
elements of a matter or communication.111 If the appropriately integrated
evaluation of legal and non-legal factors were denied protection from
disclosure because a latter observer decided that the non-legal factors
somehow outweighed the legal factors on a numerical scale, the purpose of
the privilege in encouraging laypeople to obtain legal advice and assistance
and learn how to comply with legal rules would be undermined. Even
assuming we were able to precisely calculate that the purpose or content of
a communication was 55 or 60 percent business and 45 or 40 percent legal,
the privilege should be preserved when such factors are fused together in
the lawyer’s provision of legal advice or assistance. The essential question
for the court reviewing a claim of privilege is one of animating motive and
qualitative significance, not of comparative volume.112

     109
          In re Ford Motor Co., 110 F.3d at 966.
     110
          In re County of Erie, 473 F.3d 413, 420-21 (2d Cir. 2007).
     111
          The proposal to change the attorney-client privilege test “from the predominate
purpose test to the significant amount test” would be an improvement because the new approach
would ensure protection when the matter or communications had a substantial legal nexus. See
Mark C. Van Deusen, Note, The Attorney-Client Privilege for In-House Counsel When
Negotiating Contracts, 39 WM. & MARY L. REV. 1397, 1439 (1998); see also Amber Stevens,
Comment, An Analysis of the Troubling Issues Surrounding In-House Counsel and the
Attorney-Client Privilege, 23 Hamline L. Rev. 290, 316-19 (1999) (proposing that courts should
“consistently apply an expanded version of the predominant purpose test, the significant
purpose test”). Nonetheless, the proposed “significant purpose” test shares the same defect as
the original by lending itself to artificial quantitative applications, such as by inviting judges to
“determine if twenty percent of a discussion is about legal issues as opposed to determining
whether forty-five percent or sixty percent of a discussion involves legal advice.” See Van
Deusen, supra, at 1437. The attorney-client privilege should protect the confidentiality of
sincere requests for legal advice or assistance when a matter has a meaningful and non-
incidental legal dimension, regardless of mathematical proportions.
     112
          See, e.g., Southeastern Pa. Transp. Auth. v. CaremarkPCS Health, L.P., 254 F.R.D.
253, 260 (E.D. Pa. 2009) (holding that “[e]ven if business concerns were at issue in the
communication, it is clear that any business decisions were only being made after securing legal
advice from [the corporate attorneys] concerning the contract language” and thus that the
16-Feb-09]               Gregory C. Sisk & Pamela J. Abbate                                     25

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


“primary purpose” of the communication “was to relay legal advice, not business advice”);
Allied Irish Banks, 252 F.R.D. 163, 170 (S.D.N.Y. 2008) (finding that a document was prepared
to provide legal advice or services to the client and “was not for purely business purposes”).
     113
          See supra notes 108-112 and accompanying text.
     114
          In re Vioxx Prod. Liability Litigation, 501 F. Supp. 2d 789, 798 (E.D. La. 2007)
(quoting and adopting report of Special Master Paul Rice).
     115
          Even when the legal factor is incidental, the privilege claimant may be able to make
the case for isolating that minute legal content and gaining the privilege for that limited piece of
the communication. See In re County of Erie, 473 F.3d 413, 421 n.8 (2d Cir. 2007)
(“Importantly, redaction is available for documents which contain legal advice that is incidental
to the nonlegal advice that is the predominant purpose of the communication.”); RICE, supra
note 24, § 7:8 (discussing the approach by which the court “focuses on the segregable portions
of each communication in which legal advice or assistance has been sought”). Thus, when the
essential purpose of a document is non-legal, redaction preserves the privilege as to those
incidental, but discrete, sections that involve legal matters.
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-document
basis117 (and oral conversations about which evidence is sought would need
to be addressed discretely as well). Once the party has provided a
description of the document or conversation and made the basic showing
that legal and non-legal elements are “inextricably intertwined,”118 the
lawyer and client should not ordinarily be required to meticulously parse
out the strands of an interwoven dialogue into privileged and unprivileged
categories.119
    In general, when a showing of primary or genuine and material legal
purpose for a communication has been made, unless a strand of that
conversation between a lawyer and a client is unrelated to the legal
representation and would not naturally unfold within a professional
dialogue between a lawyer and a client, the lawyer and client ought not be
required to segregate those particular elements of an interwoven set of
communications.120 The client cannot develop a trusting relationship with


     116
          Rossi v. Blue Cross & Blue Shield, 540 N.E.2d 703, 706 (N.Y. 1989); see also United
States v. United Shoe Machinery Corp., 89 F. Supp. 357 (D.Mass.1950) (Judge Wyzanski)
(“[T]he privilege of nondisclosure is not lost merely because relevant nonlegal considerations
are expressly stated in a communication which also includes legal advice.”); Palmer by Diacon
v. Farmers Ins. Exchange, 861 P.2d 895, 906 (Mont. 1993) (“The privilege of non-disclosure is
not lost merely because the communications contain relevant nonlegal considerations.”). For
further discussion of the combination of legal and non-legal elements in a communication, see
infra notes 157-163 and accompanying text.
     117
          See FED. R. CIV. P. 26(b)(5)(A) (providing that “when a party withholds information
from discovery “by claiming that the information is privileged,” the party must “describe the
nature of the documents, communications, or tangible things not produced or disclosed—and 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 log—is a compilation of information about documents
requested during pretrial discovery for which a privilege claim has been asserted.” (footnote
omitted)).
     118
          See In re Vioxx Prod. Liability Litigation, 501 F. Supp. 2d 789, 798 (E.D. La. 2007)
(“When these non-legal services are mixed with legal services it does not render the legal
services any less protected by the privilege. In fact, they both are protected when they are
inextricably intertwined.” (quoting and adopting report of Special Master Paul Rice).
     119
          See Sealy Mattress Co. v. Sealy Inc., 1987 WL 12500, at *3 (Del. Ch. 1987) (ruling
that, where “letter contains an admixture of business and legal advice that is not readily
divisible into separate categories,” “any effort to parse the advice which is ‘legal’ from that
which is ‘business’ would be hazardous at best”). But see Lugosch v. Congel, No. Civ. 1:00-
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
16-Feb-09]              Gregory C. Sisk & Pamela J. Abbate                                  27

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


                  2.        Law-Related Services and the Attorney-Client
                            Privilege
    The law of professional responsibility has responded to the changing
realities of the practice of law. As recommended by the American Bar

the overwhelming purpose of the communication was non-legal and thus the legal advice is an
incidental element of the communication. See supra note 115.
     121
          See Swidler & Berlin v. United States, 524 U.S. 399, 409 (1998) (“[A] client may not
know at the time he discloses information to his attorney whether it will later be relevant to a
civil or a criminal matter, let alone whether it will be of substantial importance.”); In re
Ampicillin Antitrust Litigation, 81 F. R. D. 377, 385 n.10 (D.D.C. 1978) (“By ‘relevance of the
communication to a particular legal problem,’ the Court does not intend to imply that a
communication will only be protected if it, in fact, contains information necessary to the
decision-making process for a particular legal problem, because such an Ex post facto approach
would discourage full disclosure by an employee who may not know what information is
necessary.”).
     122
          See Upjohn Co. v. United States, 449 U.S. 383, 390-91 (1981) (“The first step in the
resolution of any legal problem is ascertaining the factual background and sifting through the
facts with an eye to the legally relevant.”).
28                               DYNAMIC PRIVILEGE                       [16-Feb-09

Association, the ethical obligations of lawyers should extend to services that
have not traditionally been understood as the practice of law but which
today are recognized as being related to the practice of law. By focusing
upon the “law-related” nature of these additional services and their
integration within a law practice, the applicability of professional
responsibilities and the appropriate protection of the attorney-client
privilege are brought into sharper relief. Moreover, by bringing law-related
services within the coverage of the attorney-client privilege, when an
indisputably legal matter is at the core of the representation, difficult
questions about whether a particular activity is strictly legal or not fade into
the background. Drawing fine lines between legal and non-legal matters—
which often is an impossible and artificial task123—becomes less and less
necessary.
   Rule 5.7 of the Model Rules of Professional Conduct addresses the
lawyer’s 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 lawyer’s provision of legal services to clients;
                   or

                   (2) in other circumstances by an entity controlled by the
                   lawyer individually or with others if the lawyer fails to
                   take reasonable measures to assure that a person
                   obtaining the law-related services knows that the
                   services are not legal services and that the protections of
                   the client-lawyer relationship do not exist.

           (b) The term “law-related services” denotes services that might
           reasonably be performed in conjunction with and in substance
           are related to the provision of legal services, and that are not
           prohibited as unauthorized practice of law when provided by a
           nonlawyer.124
    Nearly every law office offers some ancillary services that fall within
the category of “law-related services,” such as secretarial services, copying
services, etc., which have long been taken for granted and as to which the
application of confidentiality and privilege are unquestioned. Because these
     123
           See supra note 97 and accompanying text.
     124
           MODEL RULES R. 5.7.
16-Feb-09]              Gregory C. Sisk & Pamela J. Abbate                                 29

services are practically connected to the law practice and are offered in
conjunction with legal services, the lawyer must take reasonable steps to
ensure that the employees who perform such services conduct themselves in
a manner compatible with professional obligations, such as maintaining
confidentiality with respect to documents being typed or duplicated.125
Although not strictly legal in nature, when such routine services are
performed within a law practice, the cover of the attorney-client privilege
has long been assumed, if not always clearly articulated.
    As the practice of law grows ever more complex and the needs of clients
change, the nature of law-related services has expanded well beyond those
that were traditionally and routinely offered in nearly every law office. As
explained in Comment 9 to Rule 5.7, “law-related services” offered as part
of the modern law practice include such things as “providing title insurance,
financial planning, accounting, trust services, real estate counseling,
legislative lobbying, economic analysis, social work, psychological
counseling, tax preparation, and patent, medical or environmental
consulting.”126
    As one federal court said more than 40 years ago, “[w]here a lawyer
possesses multifarious talents, his clients should not be deprived of the
attorney-client privilege;” “[t]he mere fact that non-lawyers could also have
performed the services in question does not in any way destroy the
privilege.”127 Thus, for example, when a law firm performs “an ancillary
function” as part of a legal representation, such as holding money in escrow
for a transaction, correspondence between the client and the lawyer “which
would ordinarily fall within the purview of the privilege should be none the
less privileged because of the performance of that additional function.”128
    Rule 5.7 should play a prominent role in interpreting the parameters of
the attorney-client client privilege as applied to the integrated legal practice
that has evolved and will continue to be essential in the future. Although
Rule 5.7 addresses the lawyer’s 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

    125
          On the lawyer’s responsibility to ensure that nonlawyer assistants comply with
professional expectations, see MODEL RULES R. 5.3.
     126
          MODEL RULES R. 5.7 cmt. [9].
     127
          Chore-Time Equip. v. Big Dutchman, Inc., 255 F. Supp. 1020, 1023 (W.D. Mich.
1966) (applying attorney-client privilege to a patent lawyer’s 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).
30                                DYNAMIC PRIVILEGE                                  [16-Feb-09

Rule 5.7 may appropriately be translated into the context of the privilege.
By adopting Rule 5.7 as part of the formal ethical rules governing lawyers
in a state, the state’s supreme court has affirmatively invited those who
retain lawyers to rely upon the availability of regular professional
protections when law-related services are provided by lawyers as part of a
law practice. The “primary consideration” in the attachment of the
attorney-client privilege “is the reasonable expectations of the person in the
position of a putative client.”129 Rule 5.7 bolsters the client’s “reasonable
expectations” that communications about law-related services, when they
are substantively related to and performed in conjunction with the provision
of legal services,130 will be guarded by the attorney-client privilege.
    When the law-related service that is offered by a lawyer has been
merged seamlessly together with a law practice, the client should be
affirmed in the reasonable expectation that the lawyer will perform those
additional services in a manner that fully comports with the lawyer’s
professional duties to protect confidential information. When the client’s
expectation in this regard is not only reasonable, but has been endorsed by
the state’s supreme court through adoption of Rule 5.7 in that jurisdiction,
the courts should be estopped from removing the protections of
confidentiality when parallel questions of protection from disclosure arise in
the evidentiary context of the attorney-client privilege.
    Importantly, to ensure the availability of the attorney-client privilege,
genuine legal services must remain at the core of the lawyer’s work, such
that any law-related services are provided as part of an integrated package
of legal services. The client who employs the lawyer exclusively for
services that are wholly non-legal by any reckoning and that have no nexus
to an underlying legal representation cannot thereby obtain the shield of the
privilege for communications about those non-legal tasks.131 However,
     129
          RESTATEMENT (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 the
protections of the client-lawyer relationship do not exist.” MODEL RULES R. 5.7(a)(2).
Comment 6 to the rule explains that the lawyer must explain to the client “the practical effect or
significance of the inapplicability of the Rules of Professional Conduct,” so that the person
understands this will “not be a client-lawyer relationship.” Absent such affirmatives measures
to operate the services distinct from the law practice, the client is entitled to the protections of
the attorney-client relationship, of which confidentiality is an essential element. MODEL RULES
R. 5.7 cmt. [6]. Thus, if the lawyer has not taken affirmative steps to separate the activity from
16-Feb-09]               Gregory C. Sisk & Pamela J. Abbate                                   31

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



his or her practice of law, the ethical duties of a lawyer attach to those law-related activities,
whether or not there is a nexus in a particular case to legal matters. Under those circumstances,
however, the attorney-client privilege simply cannot be extended, because it would allow both
lawyers and clients to manipulate the privilege and stretch it to cover unlinked non-legal
matters. Although the adoption of Rule 5.7 invites clients to expect confidentiality for law-
related activities that are not operated separate from the law practice, this essay suggests only
that the reasonableness of that expectation justifies extension of the attorney-client privilege
when the law-related activity is attendant to and integrated with an indisputably legal matter.
     132
          RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 72 cmt. c (2000).
     133
          See United States v. Willis, 565 F. Supp. 1186, 1189-90 (S.D. Iowa 1983); see also
RICE, supra note 24, § 7.24 (finding that courts are divided on whether tax return preparation, as
contrasted with tax planning, is legal assistance entitled to the protection of the privilege);
Maura I. Strassberg, Privilege Can Be Abused: Exploring the Ethical Obligation to Avoid
Frivolous Claims of Attorney-Client Privilege, 37 SETON HALL L. REV. 413, 473 n.268 (2007)
(noting disagreement among courts on whether communications involving a lawyer’s
preparation of a tax return are protected by the privilege).
     134
          182 F.3d 496, 500 (7th Cir. 1999) (denying privilege protection to the information
provided by the client to the lawyer to prepare the tax return and work-sheets prepared by the
attorney in preparing the return).
     135
          Id.
32                               DYNAMIC PRIVILEGE                                  [16-Feb-09

    Other courts, rightly in our view, have ruled that “[p]reparation of a
return by an attorney pursuant to a bona fide attorney-client relationship is
sufficiently within his professional legal competence to be subsumed by the
privilege.”136 Even the simple preparation of a tax return may readily
become the occasion for providing valuable legal advice about
characterization of items, the justifiability of exemptions and deductions
under the internal revenue code, and the possibility of legal proceedings.
Precisely because tax matters are such fertile ground for legal issues and
disputes, we believe that communications about tax return activity
presumptively fall within the attorney-client privilege.
    To be sure, affording the privilege to tax preparation by lawyers as a
legal service does mean, as the Frederick court apprehended, that a taxpayer
who retains a lawyer for tax return work receives the benefit of the
privilege, while a taxpayer who hires an accountant does not. By the same
token, the home buyer who retains a lawyer to assist with a real estate
transaction, rather than using a real estate agent, receives the benefit of the
privilege.137 Likewise, the manufacturer who retains a lawyer to conduct or
supervise an environmental audit for regulatory compliance, rather than an
engineer or other professional, thereby secures the advantage of the
privilege.138 As still another example, the employer who retains a lawyer to
prepare an employee handbook or a sexual harassment policy would receive
the benefit of the privilege, while the employer who uses a human resources
professional or relies on his or her own understanding does not.139 In sum,
when tax return work is being performed by a diligent lawyer (rather than
an accountant or other non-lawyer), the lawyer’s legal expertise and
experience may lead him or her to identify and address legal issues that

     136
          United States v. Schmidt, 360 F. Supp. 339, 347 (M.D. Pa. 1973) (applying the
privilege to the lawyers’ preparation of a tax return as well as to any communications with an
accountant who prepared preliminary business and financial information that would reveal
information related to the attorney-client relationship); see also Colton v. United States, 306
F.2d 633, 637 (2d Cir. 1962) (”There can, of course, be no question that the giving of tax advice
and the preparation of tax returns . . . are basically matters sufficiently within the professional
competence of an attorney to make them prima facie subject to the attorney-client privilege.”);
United States v. Merrell, 303 F. Supp. 490, 492 (N.D.N.Y. 1969) (“It appears that the 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. Ass’n, 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.
16-Feb-09]               Gregory C. Sisk & Pamela J. Abbate                                     33

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 the
client, characterizing this work as a legal service would be a pyrrhic victory
for purposes of the privilege.140 Under the longstanding doctrine that
underlying facts are not privileged,141 the financial data submitted by the
client would not be insulated from discovery. Moreover, information
conveyed to the lawyer for the very purpose of being included in the tax
return would not be privileged, of course, because the lawyer was intended
to be a conduit in transmitting that set of information to the government tax
agency.142
    However, as soon as the exchange between the lawyer and client moves
beyond financial data that is to be transmitted to the government on the tax
return, such as correspondence about how to characterize an item of income
or whether the requirements for taking a particular deduction are met, every
reason is present to protect these communications by the privilege. Even if
the actual preparation of the tax return were regarded as a law-related
accounting service, rather than the direct performance of legal services, the
privilege should cover all aspects of that tax return work other than the non-
privileged underlying financial data, simple work-sheets based solely on




    140
          The Reporter’s 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
rptr’s 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 Client’s purpose was not that of obtaining legal assistance.” Id. cmt. c, ill.2. However, as
described in that illustration, Lawyer prepares simple tax returns “without discussing any issues
with Client,” Client “has never discussed with Lawyer any legal question concerning taxes or
return preparation, nor has Lawyer offered such advice,” and “Client pays Lawyer on a per-form
basis and in an amount comparable to what nonlawyer tax preparers charge.” Id. Thus, in that
peculiar illustration, nearly every possible legal dimension has been drained from the activity—
a scenario not likely to be commonly encountered in real-world exchanges between lawyers and
clients.
     141
          See infra notes 164-166 and accompanying text.
     142
          RICE, supra note 24, § 7.25; United States v. Lawless, 709 F.2d 485, 487 (7th Cir.
1983) (“[I]f the client transmitted the information so that it might be used on the tax return, such
a transmission destroys any expectation of confidentiality.”).
34                                DYNAMIC PRIVILEGE                                   [16-Feb-09

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
           attorney’s advice with respect to tax issues, that advice will in
           some fashion ultimately be reflected on the taxpayer/client's tax
           returns filed with the government. In this sense, almost all tax
           law advice is, in some regard, associated with return preparation
           activities.144
Accordingly, the fact that the lawyer’s legal role and legal advice is
intertwined with the lawyer’s work as a tax preparer is no reason to deny
the coverage of the privilege to the representation as a whole. Instead, to
uphold the purpose of the privilege in allowing clients to seek counsel from
lawyers on compliance with the law, the interconnection between the
lawyer’s work in advising and in completing the tax return provides the
very reason to ensure the protection of the privilege.


                   3.        Preventing the “Ruse” Abuse: Denying the
                             Privilege to Ordinary Business Matters
                             Disguised as Relating to Legal Advice
    In two particular contexts presenting the blending of legal and non-legal
roles and matters, courts and commentators have been especially worried
that the attorney-client privilege may be abused. As discussed immediately
below, when in-house counsel to a business association wears two hats
(both that of a lawyer and a business executive) or where ordinary business
communications appear to be routinely channeled through a lawyer, courts
asked to extend the shield of the privilege fear that the addressing of the


     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] firm’s 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).
16-Feb-09]               Gregory C. Sisk & Pamela J. Abbate                                  35

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


    145
           See RICE, supra note 24, § 7:2.
    146
           Andritz Sprout-Bauer, Inc. v. Beazer East, Inc., 174 F.R.D. 609, 633 (M.D. Pa. 1997);
see also Rossi v. Blue Cross & Blue Shield, 540 N.E.2d 703, 705 (N.Y. 1989) (noting that the
“day-today involvement” of in-house attorneys for a company “may blur the line between legal
and non-legal communications”).
      147
           RICE, supra note 24, § 7:1 (footnotes omitted); but see Giesel, supra note 98, at 1175
(criticizing “the anticorporation and anti-in-house counsel bias which is obvious in many courts’
opinions” on attorney-client privilege); Stevens, supra note 111, at 309 (arguing that “courts
have shown a bias towards corporations and in-house counsel when they examine in-house
counsel’s communications” and critically noting “some courts appear to presume corporate
abuse of the privilege or that the communication contains primarily business advice”).
36                              DYNAMIC PRIVILEGE                                [16-Feb-09

communication.148 The fact that the in-house counsel may be regularly
involved with nearly every aspect of the business enterprise cannot be a
device for immunizing every such communication from outside
discovery.149
    Nonetheless, in making the fact-intensive determination of whether the
privilege should apply, courts should be mindful of the necessarily
expanded role of corporate counsel in the modern legal and regulatory
environment.150 Moreover, as the Restatement of the Law Governing
Lawyers emphasizes in a comment, the privilege “applies without
distinction to lawyers who are inside legal counsel or outside legal counsel
for an organization.”151 Accordingly, if non-legal components of a
communication are intertwined with genuine and material requests for or
legal advice provided by corporate counsel, whether in-house or outside, the
privilege should attach.152 But if corporate attorneys were “acting
principally as business advisors giving only incidental legal advice,” then
the protection of the attorney-client privilege may not come into play.153
Only when “any legal advice was overshadowed by non-legal information”
should the court be more inclined to find that the privilege has been
relinquished.154
    Second, as a similar concern that also arises in the business context, a
potential for abuse of the attorney-client privilege may be found in the
inappropriate practice of some businesses to funnel all documents and
correspondence through counsel (whether in-house or outside) in an attempt
to transform routine business communications into privileged attorney-
client communications. As Paul Rice writes in his treatise, “[m]any courts
fear that businesses will immunize internal communications from discovery
by placing legal counsel in strategic corporate positions and funnelling
documents through counsel (viz. addressing documents to the lawyers with

     148
         ABB 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 and
accompanying text.
     153
         In re Westinghouse Elec. Corp. Uranium Contracts Litigation, 76 F.R.D. 47, 57 (W.D.
Pa. 1977) (emphasis added); see also United States v. International Business Machines Corp.,
66 F.R.D. 206, 212 (S.D.N.Y. 1974) (saying that the attorney-client privilege does not apply “to
incidental legal advice given by an attorney acting outside the scope of his role as attorney”).
     154
         See In re Brand Name Prescriptions Drugs Antitrust Litigation, No. 94 C 897, 1995
WL 354268, at *3 (N.D. Ill. 1995).
16-Feb-09]               Gregory C. Sisk & Pamela J. Abbate                                  37

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


    155
          RICE, 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 communication’s primary purpose is to gain or provide legal
assistance.”). On the primary legal purpose test, and how it has been applied and should be
understood, see supra notes 105-115 and accompanying text.
     158
          See, e.g., Burton v. R.J. Reynolds Tobacco Co., 177 F.R.D. 491, 497 (D. Kan. 1997)
(denying privilege for correspondence among counsel for tobacco companies regarding special
projects for research, where the party did “not point to any specific evidence, however, that the
documents were created to give legal advice instead of for general business purposes, nor do the
documents themselves evidence the necessary link.”).
     159
          In re CFS-Related Securities Fraud Litigation, 223 F.R.D. 631, 635 (N.D. Okla. 2004).
     160
          For a suggestion that the privilege test is best understood as focusing on a genuine
motive by the client in seeking legal advice or assistance and a material legal dimension to the
matter, see supra notes 113-115 and accompanying text.
     161
          See supra Part II.B.
     162
          See infra Part IV.B.
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, without
narrowly defining the scope of the practice of law or permitting intrusion
into privileged communications that include non-legal as well as genuine
legal components:
           “The privilege only protects disclosure of communications; it does
           not protect disclosure of the underlying facts by those who
           communicated with the attorney[.]”164 Thus, witnesses to events,
           raw data, and pre-existing information typically are subject to
           unobstructed discovery. Especially when the underlying factual
           evidence has been “generated through studies and collected through
           observation” of data that was “obtained from sources other than the
           client,”165 a claim of privilege is misplaced, whether or not the data
           is transmitted to the lawyer or research is supervised by the lawyer.
           (By contrast, if a scientific report “‘put[s] in usable form
           information obtained from the client,’” and if the “report was
           connected intimately to the rendering of legal advice,” the contents
           should receive the protection of the privilege.166)
           Even though informed and perhaps influenced by a lawyer’s advice,
           the client’s ultimate decision based on that advice is not privileged.
           Because the client is not necessarily bound by the lawyer’s
           suggestions, the general rule is that “[r]evealing client actions or
           decisions would disclose neither the substance of the
           recommendation nor the content of the client’s privileged
           communications upon which the decision/actions were based.”167

     163
         See infra Part IV.B.
     164
         Upjohn Co. v. United States, 449 U.S. 383, 395 (1981).
    165
         United States Postal Serv. v. Phelps Dodge Refining Corp., 852 F. Supp. 156, 161
(E.D.N.Y. 1994) (finding documents recording factual data collected by consultants did not
“reveal[] any confidential communications by the defendants or their attorneys to the
consultants”).
    166
         Olson v. Accessory Controls & Equip. Co., 757 A.2d 14, 23, 28 (Conn. 2000) (quoting
Federal Trade Comm’n 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.
16-Feb-09]               Gregory C. Sisk & Pamela J. Abbate                                  39

          While written communications between a lawyer and client (and
          among those who are part of the legal team) may be privileged in
          nature, “preexisting documents or documents which were not
          created as communications to the attorney . . . do not become
          privileged merely by virtue of being forwarded to the lawyer.”168
          The “preexisting document rule” thus underscores that only
          documents created for the purpose of communicating with the
          lawyer about the legal representation fall within the privilege.
          For the privilege to attach, the communication must be treated by
          the participants in a manner consistent with its asserted
          confidentiality.169 If a communication is broadly disseminated
          beyond those agents of the client who are authorized to make
          decisions, speak for the client, or otherwise have a need to know,
          then the communication either is not privileged in the first instance
          because it was not held confidential or the privilege is lost due to
          waiver by disclosure.170
          Under the crime-fraud exception to the attorney-client privilege,171 if
          a client, rather than seeking legitimate legal advice, solicits
          information and services from a lawyer in order to facilitate criminal

    168
          7 JAMES A. ADAMS & JOSEPH P. WEEG, IOWA PRACTICE SERIES: EVIDENCE § 5.504:10
(Thomson-West 2005); see also Fisher v. United States, 425 U.S. 391, 403-04 (1976) (“This
Court and the lower courts have thus uniformly held that pre-existing documents which could
have been obtained by court process from the client when he was in possession may also be
obtained from the attorney by similar process following transfer by the client in order to obtain
more informed legal advice.”).
     169
          See Allied Irish Banks, 252 F.R.D. 163, 168 (S.D.N.Y. 2008) (“‘Generally,
communications made between a [client] and counsel in the known presence of a third party are
not privileged.’” (quoting People v. Osorio, 549 N.E.2d 1183, 1185 (N.Y. 1989)).
     170
          See Fed. Trade Comm’n 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 individual’s 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).
40                              DYNAMIC PRIVILEGE                                [16-Feb-09

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

           *      *        *         *

    When a matter with a meaningful legal dimension is brought to a lawyer
and subjected to the lawyer’s professional examination, the animating
purpose of the attorney-client privilege is realized by encouraging the
lawyer and the client to fully explore any legal implications in an integrated
fashion, even as the lawyer offers additional services that could be
performed by non-lawyers. If today’s lawyer is to be effective in a legal
representation, and thoroughly competent in the modern sense of having
expertise, training, and experience that may extend beyond knowledge of
legal texts, doctrines, and procedures, then the lawyer’s performance or
supervision of additional services directly related to the practice of law
should be recognized as within the lawyer’s professional capacity.
Communications between lawyers and clients about those allied matters, as

     172
         See, e.g., State ex rel. Humphrey v. Philip Morris Inc., 606 N.W.2d 676, 691 (Minn.
Ct. App. 2000) (referring to trial court ruling that the tobacco companies “had engaged in
criminal and fraudulent conduct by failing to conduct research into the safety of tobacco
products and failing to warn consumers about research that did support negative conclusions
and that [the tobacco companies’] attorneys acted in furtherance of this conduct”); In re A.H.
Robins Co., 107 F.R.D. 2, 14-15 (D. Kan. 1985) (applying the crime-fraud exception when the
manufacturer of a contraceptive device “failed to adequately test the Dalkon Shield before
marketing it; attempted to develop hard evidence which misrepresented the nature, quality,
safety and efficacy of the Dalkon Shield; ignored the mounting evidence against the Dalkon
Shield, with knowledge of the potential harm caused by the product; relied upon invalid studies
in an effort to refute or ignore the dangers potentially caused by the Dalkon Shield; and
attempted, with the assistance of counsel, to devise strategies to cover up Robins'
responsibilities and lessen its liability with respect to the Dalkon Shield”).
     173
         State v. Kirkpatrick, 263 N.W. 52, 54-55 (Iowa 1935) (involving communications by
an attorney and client regarding counterfeit city bonds). Importantly, however, “the exception
only applies where the communication is intended to or actually advances the client’s illicit
purpose; providing after-the-fact evidence of the crime or fraud is insufficient.” 1 HAZARD &
HODES, supra note 76, § 9.10, at 9-41.
16-Feb-09]          Gregory C. Sisk & Pamela J. Abbate                      41

well as strictly legal issues, deserve the sound and reliable protection of the
attorney-client privilege.
42                              DYNAMIC PRIVILEGE                                [16-Feb-09

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


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



     174
         United States v. United Shoe Mach. Corp., 89 F. Supp. 357, 359 (D. Mass. 1970).
     175
         Upjohn Co. v. United States, 449 U.S. 383, 389 (1981) (“[The privilege’s] purpose is
to encourage full and frank communication between attorneys and their clients and thereby
promote broader public interests in the observance of law and administration of justice.”).
     176
         See In re Regents of University of California, 101 F.3d 1386, 1390-91 (Fed. Cir. 1996)
(“Persons seek legal advice and assistance in order to meet legal requirements and to plan their
conduct; such steps serve the public interest in achieving compliance with law and facilitating
the administration of justice, and indeed may avert litigation.”).
16-Feb-09]              Gregory C. Sisk & Pamela J. Abbate                                 43

community in which each has responsibilities for the other.”177 The lawyer
and the client are engaged in mutual moral deliberation, in which they act
cooperatively toward accomplishing the good. The lawyer does not impose
the lawyer’s moral values upon the client but seeks to ensure that the client
draws upon the client’s own deepest moral principles in realizing a legal
outcome.178 In settings where the lawyer and the client participate together
in formulating and realizing the client’s goals, a “moral interdependence”
arises in which each influences the other and must therefore assume some
moral responsibility for decisions.179
    For the lawyer to neglect the moral dimension of the representation may
well constitute indifferent neglect of the client’s true interests, such as by
damaging family relationships,180 causing harm to stakeholders in or
employees of a business,181 damaging the natural environment,182 or failing
to account for an elderly client’s moral and religious beliefs in drafting a
medical directive.183 By failing to enter into a moral dialogue, the lawyer is
bereft of vital information about the client, the client’s true nature, and the
client’s genuine desires, resulting in an artificial separation of the client’s
legal interests from the client’s moral aspirations. How can the lawyer truly
know the client and thereby purport to advance that client’s wellbeing if the
lawyer never asks by what moral compass the client directs his, her, or its
path?
    Robert Vischer explains that a lawyer’s misguided adoption of a
morally-detached and legally-exclusive approach to the client’s
representation—
         foregoes any opportunity by the client to correct the lawyer’s
         misperception of the client’s operative moral claims and it tends
         to allow clients to avoid coming to terms with the moral content
         of any arguably legal course of conduct. Especially in cases
         where the governing legal directives are ambiguous or otherwise

    177
          JOSEPH G. ALLEGRETTI, THE LAWYER’S CALLING: CHRISTIAN FAITH AND LEGAL
PRACTICE 45 (1996).
    178
          Robert F. Cochran, Jr., Introduction: Three Approaches to Moral Issues in Law Office
Counseling, in Symposium: Client Counseling and Moral Responsibility, 30 PEPP. L. REV. 591,
599 (2003) (saying that, by asking the client to consider the effect of alternatives on other
people, the lawyer does not impose values on the client, but “calls on clients to draw on their
own sources of moral values”); see also Robert K. Vischer, Moral Engagement Without “The
Moral Law”: A Post-Canons View of Attorney’s Moral Accountability, THE PROF’L LAWYER
(2009).
    179
          See Painter, supra note 24, at 511, 578-83.
    180
          See supra Part II.A.
    181
          See supra Part II.B.
    182
          See supra Part II.C.
    183
          See supra Part II.D.
44                              DYNAMIC PRIVILEGE                               [16-Feb-09

           indeterminate, attorneys become tools for facilitating morally
           problematic conduct, even in contexts where the client may not
           have deliberately embraced the moral claims embodied therein or
           where the client would have benefited from being pressed on the
           wisdom of those claims.184
    To be blunt, then, a lawyer who fails to engage in a moral discussion
with the client, at least on matters of significance with obvious moral
implications, simply is not doing his or her job. Moral awareness is not at
war with the traditional expectation of the lawyer to be a zealous advocate
for the client. Gerald Postema argues that not only is a lawyer authorized to
raise moral issues with the client, he has a professional responsibility to do
so:
           [C]ut off from sound moral judgment, the lawyer’s ability to do
           his job well—to determine the applicable law and effectively
           advise his clients—is likely to be seriously affected. . . . [T]he
           lawyer who must detach professional judgment from his own
           moral judgment is deprived of the resources from which
           arguments regarding his client’s legal rights and duties can be
           fashioned. In effect, the ideal of neutrality and detachment wars
           against its companion ideal of zealous pursuit of client
           interests.185
    Rule 2.1 of the Model Rules of Professional Conduct expressly reminds
the lawyer: “In rendering advice, a lawyer may refer not only to law but to
other considerations such as moral, economic, social, and political factors,
that may be relevant to the client’s situation.”186 As Geoffrey Hazard and
William Hodes emphasize, this provision is “more than merely permissive;”
it “should be read as active encouragement for lawyers to provide more
broadly based and richer professional advice.”187          The comments
accompanying the rule reinforce the value of moral deliberation to the
client:
                Advice couched in narrow legal terms may be of little value
           to a client, especially where practical considerations, such as
           cost or effects on other people, are predominant. Purely
           technical legal advice, therefore, can sometimes be inadequate.
           It is proper for a lawyer to refer to relevant moral and ethical

     184
         Robert K. Vischer, Legal Advice as Moral Perspective, 19 GEO. J. LEGAL ETHICS 225,
229 (2006).
     185
         Gerald J. Postema, Moral Responsibility in Professional Ethics, 55 N.Y.U. L. REV. 63,
79 (1980).
     186
         MODEL RULES R. 2.1.
     187
         1 HAZARD & HODES, supra note 76, § 23.4, at 23-6.
16-Feb-09]                Gregory C. Sisk & Pamela J. Abbate                                      45

          considerations in giving advice. Although a lawyer is not a
          moral advisor as such, moral and ethical considerations impinge
          upon most legal questions and may decisively influence how the
          law will be applied.188
    By the nature of such advice, confidentially transmitted by a lawyer in a
fiduciary relationship with a client, moral counseling rarely comes to public
attention. Whether or not the client accepts moral advice—or even whether
such advice has been given—ordinarily is a protected confidence. On what
are likely to be thousands of occasions each day somewhere in this country,
lawyers and clients reach consensus that a questionable course of action
should be avoided, on moral grounds or by reason of legal limitations or
both. We seldom hear about such conclusions reached through mutual
dialogue between an attorney and a client in a confidential setting. Instead,
the episodes that come to public attention are those presumably less typical
cases where the client steamed ahead regardless of moral or legal concerns,
with inadequate counseling by the lawyer or even with the lawyer’s
encouragement, only to enter into troubled and scandalous waters.
    The corporate scandals that shook the country in recent years provide an
object lesson of what happens when the lawyer abdicates the role of
independent counselor and declines to offer guidance beyond the formal
boundaries of legal advice. The primary problem revealed by the corporate
scandals was not a failure by corporations to institute “elaborate rules and
policies designed to ensure legal compliance and ethical behavior,” but a
failure to appreciate “the importance of organizational culture in shaping the
behavior of individuals.”189 As Mark Sargent describes the behavior of too
many lawyers involved in these episodes, “moral priorities . . . often seemed
to disappear into a smog of expediency, rationalization, willful blindness
and slavish obedience to the wishes of self-interested managers who
purported to speak for the corporate client.”190 Attention to “moral
priorities,” of course, means exercising reasoning beyond legal doctrinal
analysis and drawing upon principles not found in legal texts.191
    Lawyers are uniquely well-positioned to play an integral role in
cultivating an ethically-sensitive organizational culture. Lyman Johnson
reports that “[t]he reason directors enter the boardroom, and abandon their
    188
          MODEL RULES R. 2.1 cmt. [2].
    189
          Milton C. Regan, Jr., Moral Intuitions and Organizational Culture, 51 ST. LOUIS U.
L.J. 941, 941-42 (2007).
     190
          Mark A. Sargent, Lawyers in the Moral Maze, 49 VILL. L. REV. 867, 872 (2004).
     191
          Cf. ABB Kent-Taylor, Inc. v. Stallings & Co., Inc., 172 F.R.D. 53, 56-57 (W.D.N.Y.
1996) (observing in upholding privilege as applied to lawyer’s “strategic assessment of
alternative courses of action available to the client,” that “[i]n giving advice to a client, the role
of an attorney is certainly not restricted to citing cases and espousing legal theories”).
46                            DYNAMIC PRIVILEGE                            [16-Feb-09

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




     192
        Lyman Johnson, Reclaiming an Ethic of Corporate Responsibility, 70 GEO. WASH. L.
REV. 957, 965-66 (2002).
    193
        See supra Parts II.A to D & IV.A.
    194
        On law-related services, see supra Part IV.A.2.
    195
        See Lawrence J. Fox, It’s All in the Atmosphere, 62 FORDHAM L. REV. 1447, 1448
(1994).
16-Feb-09]              Gregory C. Sisk & Pamela J. Abbate                                  47

                                 V.       CONCLUSION
    When a lawyer performs services for a client in the context of a legal
practice, the strong presumption should be that the client genuinely seeks
legal advice or assistance and that any communications with the attorney
are within the attorney-client privilege.196 When a lawyer undertakes to
advise or assist a client in a matter that may have legal implications, the
introduction of an attorney-client relationship changes the environment in a
manner that invites the protection of the privilege. When a client chooses to
bring a matter to a lawyer, the lawyer then is able to bring to bear his or her
legal training to provide legal advice or assistance as appropriate, or even to
confirm that the law does not exact any additional obligations. In the
modern world, with the expansion of the law, the occasions for seeking
such legal advice and assistance have increased. Moreover, as legal
directives overlap with non-legal considerations, the lawyer and client
should be free to address a problem in a creative and integrated manner,
with the privilege granting a unified protection to the deliberations. In each
such case, the client naturally and justifiably expects that a confidential and
fiduciary relationship has been created with a member of the legal
profession.
    Moreover, if we wish to encourage lawyers to engage in moral
deliberation with their clients, lawyers must be able to assure clients that
this moral exchange is confidential, a protection secured by the attorney-
client privilege. By contrast, a crabbed construction of the privilege that
excludes efforts by lawyers to elevate the discourse with clients beyond the
narrow question of what is legally permissible would reduce lawyers to
amoral legal technicians and leave clients unable to call upon lawyers to
assist in moral aspiration. If we want lawyers to be morally- and ethically-
grounded, then we must assure lawyers that their introduction of social,
political, business, and economic factors, as well as moral principles, into a
discussion with legal clients will not have the perverse effect of removing
the protection of the privilege.
   An attorney-client privilege that adjusts dynamically to the changing
scope of the practice of law and that facilitates a robust moral dialogue
between the attorney and the client best serves the public interest in
obedience to the law and social justice.

    196
         See Diversified Industries, Inc. v. Meredith, 572 F.2d 596, 610 (8th Cir. 1977) (“[A]
matter committed to a professional legal adviser is prima facie so committed for the sake of the
legal advice which may be more or less desirable for some aspect of the matter, and is therefore
within the privilege unless it clearly appears to be lacking in aspects requiring legal advice.”
(quoting 8 JOHN HENRY WIGMORE, EVIDENCE § 2296 (McNaughton rev. 1961))).

				
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