In a recent article in the Wisconsin Law Review⁽²⁾ Professor Melanie B. Leslie,⁽³⁾ claimed that both the reasoning and conclusions of my 1998 Duke Law Journal article⁽⁴⁾ were "flawed." I advocated the abolition of the element of confidentiality in the definition of the attorney-client privilege.
 

Professor Leslie argues that the element of confidentiality in the attorney-client privilege serves as a useful "bright line" limitation on the application of the privilege and that there is no reason to discard it. She asserts that if the element of confidentiality were eliminated as a requirement of the privilege protection, it would result in abuses of the privilege and a corresponding increase in costs, rather than, as I conclude, a decrease.
 

I believe that Professor Leslie's conclusion is premised on a fundamental misunderstanding of how the privilege works, and more importantly, of the relevance of and need for confidentiality. Her discussion also demonstrates a misunderstanding of the role of the presiding judge in the privilege resolution process, and the need for in camera inspection of documents before an attorney-client privilege claim is ruled upon. Properly understood, the element of confidentiality is a costly and unnecessary diversion from the policies furthered by the attorney-client privilege.
 

My analysis began with the history of the element of confidentiality vis-a-vis the attorney-client privilege. Under English common law the term confidentiality was used to describe the nature of the attorney-client relationship, not the private or secret context in which attorney-client communications took place.⁽⁵⁾ It was believed that the attorney could not be asked to repeat what his client had said to him because it would disturb the confidential nature of his relationship with his client. There was no concern for whether the communications between the attorney and client took place in secret -- that is, outside the hearing of third parties. Professor Leslie has not disputed this.⁽⁶⁾
 

The change in the concept of confidentiality was brought about by Professor Wigmore in his influential treatise.⁽⁷⁾ Through ipse dixit -- without case authority, or logical justification -- Professor Wigmore unilaterally decided that no privilege for communications was justified unless the communications were confidential, in the sense that they took place in secret and that that secrecy had subsequently been maintained. Professor Leslie also does not appear to disagree with this recitation of the history of the concept of confidentiality.⁽⁸⁾ She asserts, however, that confidentiality, unlike the other elements of the privilege, is not designed to further open and candid communications between the attorney, but instead serves only "an important limiting function"⁽⁹⁾ -- limiting the suppression of relevant evidence.
 

Professor Leslie contends that if a client is willing to communicate information to a third party, the client would probably be willing to communicate the same information to the attorney even if there were no privilege protection. Therefore, she argues, those clients "do not need the encouragement of the privilege because they have already opened up the possibility that the information will be used against them (since those third parties can be subpoenaed and compelled to testify).⁽¹⁰⁾ I believe her argument is wrong because it fails to appreciate that many clients (particularly in criminal prosecutions) often acknowledge confidential matters to a close acquaintances whose identity the opposing parties probably do not know, because the communications are perceived as being safe.⁽¹¹⁾ Those same clients probably would not be as candid with their attorneys if the attorney-client privilege did not protect their communications because the attorney would be the most likely person to whom the opposing side would assume the defendant had made damaging admissions. Therefore, the attorney would be the most likely person from whom those admissions would be sought in the absence of a privilege protection.
 

If Professor Leslie is wrong, the only reason left for continuing to impose a confidentiality requirement is the fact that is an arbitrary cut-off that does not interfere with privilege. That, of course, is not a justification for continuing such a difficult requirement. If, as Professor Leslie argues, a cut-off does not have to further the goal of the privilege it limits⁽¹²⁾ -- just not interfere with it -- why not require that the client stand on one leg, or wear a blue suit, when she speaks with her attorney? There must be something special about confidentiality to justify imposing the costs that it entails -- the costs of (1) initially ensuring its presence, (2) maintaining it thereafter, (3) proving all of this when a privilege claim is raised, (4) responding to this evidence, and (5) resolving questions about its alleged loss. Professor Leslie offers no such justification, because there is none.
 

My article acknowledged that confidentiality has, as Professor Leslie agrees, served as a "bright line" limitation on the privilege. The point of my analysis, however, was that that "bright line" has been dulled and dispersed over the past century with its constant expansion and the exceptions that have been recognized to the requirement. Therefore, the confidentiality/secrecy "requirement" has become unpredictable and no longer serves as a clear cut-off -- its sole acknowledged function.
 

In fact, as I discussed in detail, confidentiality has been expanded from a tight circle of confidentiality around the attorney and client, to include agents of both,⁽¹³⁾ and even third parties with whom the client sought legal advice from a common attorney (joint clients),⁽¹⁴⁾ or with whom the client shares a common interest or community of interests but are represented by different attorneys.⁽¹⁵⁾ It also was expanded to permit different clients with different attorneys to share confidential communications in a joint defense effort.⁽¹⁶⁾ Through the concept of limited waiver,⁽¹⁷⁾ some courts have permitted the client to share his privileged communications with some third parties but not with others; in addition, courts have approved limited waivers indirectly through the use of protective orders.⁽¹⁸⁾ Moreover, even when confidentiality has been involuntarily destroyed by third party theft⁽¹⁹⁾ and wiretapping,⁽²⁰⁾ or judicially mandated disclosures,⁽²¹⁾ courts have continued to recognize the privilege despite the fact that confidentiality/secrecy has, as a consequence, disappeared. Finally, even when there has been a voluntary, albeit inadvertent, relinquishment of confidentiality by the client, courts have overwhelmingly recognized the continued existence of the privilege despite the fact that the allegedly foundational element is missing.⁽²²⁾
 

Professor Leslie's response acknowledges, throughout, the accuracy of all of these examples. It is curious, therefore, that her article focuses on rationalizing and defending what the courts have done even though I did not question the fairness of the result reached with each alteration and distortion of the confidentiality concept -- only the logic in claiming that "secrecy" is still a requirement. Her comments on my discussions of compelled disclosures in prior proceedings,⁽²³⁾ betray a basic misunderstanding of my point about the concept of secrecy. In all instances of involuntary disclosures (whether they be by stolen communications, illegally taped conversations, or judicially compelled production), confidentiality/secrecy has been destroyed, and therefore, any privilege that was dependent upon the continued existence of that secrecy should also have been destroyed. The reason for the destruction is irrelevant. After disclosure, nothing remains secret. Nevertheless, courts have refused to reject subsequent privilege claims when the same communications are sought in discovery.⁽²⁴⁾ Their logic has been that the client cannot fairly be held to have "waived" the claim. This makes no sense. If the concept of confidentiality were fundamental to the privilege's existence, the idea of "waiver" should be irrelevant because there is nothing left to waive.
 

Professor Leslie's misunderstanding of this premise about confidentiality/secrecy only reinforces my point that confidentiality no longer means "secrecy." It means whatever each court wants to make it mean in light of the good served by the previous disclosure. Professor Leslie's insistence on discussing "confidentiality/secrecy" from a "functional perspective" appears to be nothing more than a euphemistic plea for undefined judicial discretion. In substance, she and the judicial decisions that she lauds are treating the element of "confidentiality" as something akin to a right of privacy that can be shared with third parties under certain circumstances that courts defined on a case-by-case basis. Having accepted this construction of the element of confidentiality, I find her "vagueness"⁽²⁵⁾ criticism of my proposed "fairness" standard curious at best.
 

Professor Leslie further attempts to discredit the proposal to abandon the "confidentiality" requirement for a "fairness" standard by suggesting that it could result in "limits that are consistent with the current confidentiality requirement."⁽²⁶⁾ She does not explain, however, how this possibility diminishes the merits of the proposal. Though costs may increase in the short term, as the parameters of the "fairness" standard are being defined, and some of the results reached through a fairness analysis will be consistent with current practices, there will be significant long-term benefits. These will come from proponents of the privilege not having to establish confidentiality in order to prevail, and the court not having to devote time to the resolution of "confidentiality" disputes.
 

If, as Professor Leslie admits, the only purpose served by the confidentiality requirement is limiting the application of the privilege -- a bright line cut-off -- when that "bright line" value has been dimmed, there is insufficient justification of continuing to use it when another, more cost-efficient, standard like "fairness" can equally fill the bill. This brings us to Professor Leslie's contention that eliminating the confidentiality requirement will result in greater, rather than less, costs.
 

She argues that both the number of unjustified claims and the costs of resolving them would increase if the element of confidentiality were abolished.⁽²⁷⁾ From the increase in inappropriate claims, she extrapolates that courts will be obligated to conduct more in camera inspections to resolve disputed claims. Therefore, greater costs will be incurred by both the parties and the courts, and it will be harder to resolve each claim because the simple confidentiality standard will be gone and the courts, so to speak, would no longer be able to paint by the numbers.
 

Because some judges are currently attempting to fulfill their judicial responsibilities without conducting in camera inspections of allegedly privileged documents, this argument has some validity. Some judges shun in camera inspections of allegedly privileged documents unless a particular demonstration is made by the requesting party that it will likely produce information important to the resolution of the claim. This standard has been taken from Supreme Court's decision United States v. Zolin,⁽²⁸⁾ where the Court was attempting to place limitations on such inspections when a party asserting the crime/fraud exception to the privilege requests examination by the court. For a number of reasons, which are explained in my treatise,⁽²⁹⁾ this resistance of in camera inspections in Zolin, and generally in practice, is unwise and inconsistent with the independent fact finding role of the presiding judge.
 

It has been held that in camera inspection may not be employed by a court unless requested by one of the parties, but there is little justification for this position. Courts, however, have balked at the use of in camera inspection for a variety of reasons. First, judges have resented the enormous time-consuming effort they must exert to review each document in a series of hundreds or perhaps thousands of documents for which the privilege claim is asserted. This is particularly true when such a review has to be made immediately prior to trial. Second, some judges believe in camera judicial review represents an "unwarranted 'prying' " into the privacy of the attorney-client relationship when the parties do not agree to it. Third, without a legitimate question raised about a particular document, some judges believe that judicial examination is inappropriate because it shifts the responsibility of discovery from counsel to the court. Fourth, without a specific question about a given document, some judges believe that judicial examination is unnecessary in light of counsel's ethical duty, as well as counsel's duty under Rules 26(g) and 11 of the Federal Rules of Civil Procedure "to make a truthful, good-faith determination of what documents are privileged and to present a proper listing." Fifth, at least one judge has held that without some basis being shown for questioning the veracity of affiants, whose affidavits set forth facts sufficient to justify a claim of privilege, there is "no reason to question the representations" and therefore, "no right to an in camera inspection of documents." Finally, in the context of other privilege claims, it has been concluded that courts should disfavor the in camera procedure because factual disputes are best served by the adversarial process. None of these arguments justify either the elimination or restriction of in camera inspections.

To reject in camera inspection is to reject the only approach to the review of allegedly privileged documents that ensures that a judicial officer will make an independent assessment of the communications in question (thereby providing some verification of the accuracy of the adversarial descriptions of the documents' contents and circulation as well as a means by which other problem areas can be detected and subsequently explored). It is the accuracy of adversarial perceptions and descriptions that is at issue here, and personal observation by the factfinder -- the judge -- is the only objective way in which that can be accomplished. Questions about the general veracity of a particular affiant logically cannot be the triggering mechanism for the judge acquiring the personal knowledge necessary for an objective assessment of the claim. If judicial time is the concern behind a judge's rejection of in camera review, the judge should first consider referring the time-consuming privilege questions to a special master and establishing substantive guidelines by which litigants could more accurately screen privilege claims and objections, and procedural guidelines that will ensure that the documents and issues are submitted to the court in a more ordered and efficient manner.

The argument that in camera inspection is an unwarranted prying or intrusion into a party's affairs is singularly unpersuasive since the judge has the sole responsibility for assessing the validity of the privilege claims, and in camera inspection is the only means by which that role can realistically be fulfilled. Because this review is so critical to the proper performance of the judge's fact-finding role, privilege proponents must be held to have waived, to this limited degree, their privacy or confidentiality in the documents they seek to suppress through the privilege.

To claim that the court should individually examine a document only if the opponent raises a legitimate question about the status of the document is disingenuous. The opponent will be unable to raise specific questions concerning the documents that the court should address if he is denied access to the documents. In camera review of each document is the only realistic substitute. Such in camera review of allegedly privileged documents does not interfere with the adversarial process because the alternative to such review is no examination of the document by either the court or the opponent. In camera review interferes with the adversarial process only to the extent that the court permits supporting materials (e.g., affidavits and briefs) to be filed ex parte -- without being served on the opponent. When, as is customarily the case, the opponent is allowed to examine the supporting materials and challenge the adequacy of the factual basis it provides for the privilege claim, the adversarial focusing of judicial inquiry is possible.

Arguments that counsel's ethical or other obligations under the procedural rules to raise only good faith claims dispenses with the need for meaningful judicial oversight of privilege assertions is nothing more than a denial of the judiciary's independent fact finding role. Adversaries simply cannot be relied upon to render the same objective assessments of rights and responsibilities as independent judicial officers whose interests are not tied to the success or failure of any adjudicated claims.

. . . .

[I]n camera inspection by the presiding judge of allegedly privileged documents is a logical imperative for an independent factfinder. Therefore, it should always be conducted by the judge in making the initial privilege determination. But more importantly, in our adversarial system, it is both inappropriate and unfair for the judge to accept a single adversary's representations about the appearance, character and content of an allegedly privileged document, without the opposing party, who has no access to the communication, demonstrating how its content might reveal that the privilege should not apply.⁽³⁰⁾
 

If , when the standard of "fairness" is employed, some judges suddenly realize that they must change the manner in which they have been fulfilling their judicial responsibilities, those increased cost should not be seen as a cost of the new standard. If the logic for rejecting in camera inspection were legitimate, many non-jury trials could generally be streamlined by basing judgments on oral or written proffers by legal counsel. The absurdity of that is no less, in the context of factual issues relating to privilege determinations.
 

Privilege logs and supporting affidavits can be misleading and incomplete. From personal experience as a judicial officer in reviewing literally thousands of personal and corporate documents, I have encountered many situations where lawyers have omitted (intentionally and unintentionally) references to important details that became apparent only when the documents were personally examined. These usually include unidentified initials and interlineations. While these details would become unimportant under my proposal to abolish the element of confidentiality, the actual content of the document would remain of paramount importance. Descriptions of a document's content and purpose are often colored by the "glasses" worn by each attorney and the affiants chosen to support the privilege claim. Too many times, paragraphs in documents that detract from their alleged purpose are "overlooked." With the existing confidentiality requirement, this examination of the content is even more important because it can reveal unaccounted-for distributions (through unidentified initials and interlineations) as well as the presence of third parties at meetings from which privilege claims are made for notes and minutes.⁽³¹⁾
 

Professor Leslie also claims, and offers a detailed example, of how she believes the elimination of confidentiality will result in the expansion of illegitimate corporate claims. She postulates that corporations will attempt to conceal business communications by making them appear to be primarily for the purpose of obtaining legal assistance rather than business.⁽³²⁾ From this she concludes that the abuse will suppress discoverable evidence, be difficult to detect and increase litigation costs. The flaw in her claim is the assumption that this problem is not currently being experienced. Her tobacco company hypothetical offers an excellent example. In an actual tobacco industry case, State of Minnesota v. Philip Morris, Inc,⁽³³⁾ the tobacco company conducted scientific research on the adverse health consequences of using tobacco products through in-house counsel, and unsuccessfully sought to protect the results of those tests with the attorney-client privilege.
 

This practice is called funnelling -- sending business communications to legal counsel on the pretext of obtaining legal assistance while sending copies of those communications to the corporate officials to whom the communications normally would have been addressed. This problem has long been a concern in the corporate context.⁽³⁴⁾ The nefarious practice is very difficult to detect, but the difficulty has nothing to do with the presence or absence of the element of confidentiality. From my experience it can be detected only through (1) in camera inspection of the documents in question, and (2) a required demonstration by the privilege claimant that comparable business communications on the same subject have been identified and disclosed to the opposing party. If comparable business documents cannot be identified, one can reasonably conclude that requests for legal advice had been used to shield discoverable business correspondence.
 

Professor Leslie's speculation that such fraudulent claims will increase is tied to her failure to appreciate the critical nature of in camera inspection, the degree to which judges currently employ it, and how its implementation exposes such practices, and thereby, discourages them. In camera inspection coupled with appropriate sanctions when such practices are discovered should minimize the flood of illegitimate claims that Professor Leslie anticipates.
 

Part of her claim that the costs will increase is related to her belief that the resolution of "fairness" claims will be more difficult.⁽³⁵⁾ While that may initially be true, as the scope of the "fairness" concept is being settled, the number of such "fairness" challenges will be significantly less than what we are currently experiencing with the confidentiality/secrecy requirement. This will be true for three reasons. First, the proponent will not be making factual showings relating to the "fairness" standard that the opponent can easily contest. Second, there will be significantly fewer instances in which such claims will be justified. They often will be justified only when disclosures have occurred that are inconsistent with society's interest in protecting those communications. Third, such issues will only be possible if the opposing party is aware of the inappropriate disclosures.
 

My conclusion that the many delineated instances of distorting and ignoring the confidentiality/secrecy requirement demonstrate the "illogic and unfairness" of the requirement in the first instance is attacked by Professor Leslie as "formalistic."⁽³⁶⁾ Yet by equating confidentiality with secrecy, the law has used a formal standard that has a common, understood meaning. Like pregnancy, a communication is either secret or it is not. As a woman cannot be "a little" pregnant, a communication cannot be "a little" secret. Rather than continuing to distort the meaning of this concept, we should acknowledge that it is no longer an acceptable standard and replace it. While the standard of "fairness" may be no less "vague" than the distorted confidentiality requirement that we are currently experiencing, it provides a far more accurate description of what the courts are doing, and in the long run, will be less costly.
 

If this evolution in the secrecy requirement were openly acknowledged, and issues of waiver were dealt with directly as questions of fairness (which is what the courts are currently doing by incrementally distorting the old secrecy requirement), the resolution of privilege claims would be a lot less complex and costly. Confidentiality qua secrecy has become nothing more than a condition precedent to the creation of the privilege but not a necessary condition to the privilege's continuation.
 

An element of the privilege that changes throughout its existence is unwise because the uncertainty that it creates results in more litigation. When, in addition, that element is not a logical imperative, but is costly to administer, and can easily be replaced, it is also unnecessary. Nothing that Professor Leslie has said justifies retaining the concept.

1. Paul Rice is a professor of law at the American University Washington College of Law, Director of the Evidence Project (www.wcl.american.edu/pub/journals/evidence) and author of Best Kept Secrets of Evidence Law: 101 Principles, Practices & Pitfalls (Anderson 2001); Attorney-Client Priivlege in the Untied States (WestGroup 2^nd ed. 1999) and Attorney-Client Privilege: State Law (Rice Publishing 2000) (acprivilege.com).

2. The Costs of Confidentiality and the Purpose of Privilege, 2000 Wis. L. Rev. 31 (2000).

3. Professor Leslie teaches evidence at the Yeshiva University, Benjamin N. Cardozo School of Law.

4. Attorney-Client Privilege: The Eroding Concept of Confidentiality Should Be Abolished, 47 Duke L. J. 853 (1998) (hereafter Duke).

5. Duke at 868.

6. Leslie at 47-48.

7. 8 John Henry Wigmore, Evidence § 2311, at 599 (John T. McNaughton rev. ed. 1961). He asserts that confidentiality is one of four "fundamental conditions . . . necessary to the establishment of a privilege against the disclosure of communications." He proceeds to state that confidentiality "must be essential to the full and satisfactory maintenance of the relationship between the parties" before any privilege should be recognized. Id. at § 2311, at 599.

8. Leslie at 48. Rather than noting, as I had, that the concept was invented by Wigmore, Professor Leslie states that "he [Rice] presents a picture of a doctrine spontaneously and mindlessly generated by legions of courts and cemented into law by Wigmore, for no particular reason." While I had questioned the logic of this invention, the reason for its creation always seemed to be apparent: to establish an arbitrary limitation on the application of the privilege protection that was not tied to the underlying purpose of the privilege protection.

9. Leslie at 36.

10. Leslie at 37.

11. Perhaps Professor Leslie's problem here is that she mistakenly believes that when the client breaches the confidentiality it will be to a wide range of people. Several times throughout this discussion she mentions "the world at large" and "the public at large." Leslie at 37-38. Reality is actually something quite different. This is why her discussion of confidentiality in the corporate context is also inapposite. Confidentiality is not lost simply when it is disseminated to the public at large. Broader dissemination within the corporate structure than is necessary under the subject matter test enunciated in Upjohn will also result in the loss of the privilege.

12. Leslie at 33. "Rice is correct that the confidentiality requirement does not further the goal of the attorney-client privilege. However, encouraging free and frank disclosure has never been the purpose of requiring confidentiality."

13. For the attorney, this expanded the circle to include not only the secretaries and paralegals, United States ex rel. Edney v. Smith, 425 F. Supp. 1038, 1041 (E.D. N.Y. 1976), but also the experts who were hired to assist in investigating or providing scientific or technical assistance in preparation for litigation. See United States v. Pipkins, 528 F.2d 559, 563 (5^th Cir. 1976) (handwriting analyst); NLRB v. Harvey, 349 F.2d 900, 907 (4^th Cir. 1965) ("[C]ircumstances may exist where a lawyer finds it necessary to employ a detective to enable him adequately to furnish legal services to his client. In such a situation the client's communications, including those relating to the hiring of the detective, would be privileged because the legal services are indistinguishable from the nonlegal."); Flood v. Waste Mgt., Inc., 1989 U.S. Dist. LEXIS 10822 (N.D. Ill. Sept. 13, 1989) (hypnotist); Unites States ex rel. Edney v. Smith, 425 F. Supp. 1038 (E.D. N.Y. 1976) (psychiatrist); Untied States v. Schmidt, 343 F. Supp. 444, 446 (M.D. Pa. 1972) (accountant); United States v. United Shoe Machinery Corp., 89 F. Supp. 357 (D. Mass. 1950) (patent agents); LaLance & Grosjean Mfg. Co. V. Haberman Mfg. Co., 87 F. 563, 564 (C.C. S.D. N.Y. 1898) (patent research assistants); Du Barre v. Livette, Peake 108, 170 Eng. Rep. 96 (N.P. 1791) ("it is equally necessary that an interpreter should be employed"). For the client, this included everyone who was under the control of the client and necessary for the advice being sought. Danisch v. Guardian Life Ins. Co., 18 F.R.D. 77, 79 (D.C. N.Y. 1955) ("The privilege of nondisclosure of communications between attorney and client is one which finds its genesis in the idea that the public interest will be best served if clients may be free to make full disclosure to their attorneys without fear that their interests may be prejudiced thereby. . . . [T]he privilege must not be so strictly limited as to make it no privilege at all and, as Wigmore points out . . .'the client's freedom of communication requires a liberty of employing other means than his own personal action.' . . . Where the agent communicates with the attorney on behalf of his principal and concerning the matter of professional employment the communication is privileged. . . . The attorney is a party to the communication and the agent stands in the shoes of the client perforce of the rule of qui facit per alium facit per se."); Macario v. Pratt & Whitney, 1991 U.S. Dist. LEXIS 2826, *1-2 (E.D. Pa. Mar. 8, 1991) (telecopy sheet sent by consultant employed by Pratt & Whitney to attorney retained by company was protected by the attorney-client privilege because legal advice was being sought on behalf of the company.).

14. In re Regents of the University of Cal., 101 F.3d 1386, 1996 U.S. App. LEXIS 30617, *9-10 (Fed. Cir. 1996) ("When the same attorney represents the interests of two or more entities on the same matter, those represented are viewed as joint clients for purposes of privilege. . . . '[T]he joint client doctrine typically has been applied to overcome what would otherwise have constituted a waiver of confidentiality because a communication had been shared between two clients.'"); Griffith v. Davis, 161 F.R.D. 687, 1995 U.S. Dist. LEXIS 13882, *14 (C.D. Cal. 1996) ("Thus, the joint client doctrine typically has been applied to overcome what would otherwise have constituted a waiver of confidentiality because a communication had been shared between two clients."); Sneider v. Kimberly-Clark Corp., 91 F.R.D. 1, 8 (N.D. Ill. 1980) ("In order that an attorney-client privilege prevail as to outsiders, the community of interest among joint clients must be an identical legal interest with regard to the subject-matter of the communications between an attorney and a client and must concern legal advice, it cannot be commercial in nature."); Zador Corp., N.V. v. Kwan, 31 Cal. App. 4th 1285, 1294, 37 Cal. Rptr. 2d 754 (1995) ("[T]he joint client relationship is an exception to the attorney client privilege. 'Where two or more clients have retained or consulted a lawyer upon a matter of common interest, none of them, nor the successor in interest of any of them, may claim a privilege under this article as to a communication made in the course of that relationship when such communication is offered in a civil proceeding between one of such clients ... and another of such clients ...."); State v. Cascone, 195 Conn. 183, 487 A.2d 186, 189 (1985) (finding this rule applicable "to protect communications between codefendants and their joint attorney when the conversation related to their participation in the charged offense."); Estate of Torian v. Smith, 263 Ark. 304, 564 S.W.2d 521, 526 (1978) (noting that an estate executor's attorney acted by implication not only for the executor, but also for the beneficiaries under the will. Hence, the executor and beneficiaries were joint clients.); Trupp v. Wolff, 24 Md. App. 588, 335 A.2d 171, 185 (1975) (There is no joint representation where "the two persons consulting with the attorney had independent, potentially adverse interests affected at the time of the conversations."); Shove v. Martine, 85 Minn. 29, 88 N.W. 254, 255 (1901) ("[A]n examination of the testimony will show that the [attorney] was acting for both parties, that they confided the custody of the note and the memorandum to him as their mutual agent, and, furthermore, that he was sent by Kyle to interview the Martines in respect to a settlement of their copartnership matters. The parties could agree that Kyle's attorney, McMahon, might represent both, and the former could not claim privilege as to matters relating to the mutual agency."); Root v. Wright, 39 Sickels (84 N.Y.) 72, 76 (1881) ("It is not necessary, in this case, to consider the question, whether an attorney, employed as the common attorney of two or more parties to give advice in a matter in which they are mutually interested, can, on a litigation subsequently arising between them, be examined at the instance of one of the parties, as to communications made when he was acting as the attorney for both.... However this may be, we are of opinion that he cannot disclose such communication in a controversy between such parties and a third person. Where parties, having diverse or hostile interests or claims which are the subject of controversy, unite in submitting the matter to a common attorney for his advice, they exhibit, in the strongest manner, their confidence in the attorney consulted. The law should encourage, and not discourage, such efforts for an amicable arrangement of differences, and public policy and the interests of justice are subserved by placing such communications under the seal of professional confidence to the extent at least of protecting them against disclosure by the attorney at the instance of third parties.").

15. Hodges, Grant & Kaufmann v. United States Government, Dep't of Treasury, IRS, 768 F.2d 719, 721 (5th Cir. 1985) ("The privilege is not . . . waived if a privileged communication is shared with a third person who has a common legal interest with respect to the subject matter of the communication.") (emphasis added); SCM Corp. v. Xerox Corp., 70 F.R.D. 508, 514, 2 Fed. R. Evid. Serv. 535 (D. Conn. 1976) ("Chester Carlson, Battelle, and Xerox shared a business interest in the successful exploitation of certain patents. Whether the legal advice was focused on pending litigation or on developing a patent program that would afford maximum protection, the privilege should not be denied when the common interest is clear."); Heidelberg Harris, Inc. v. Mitsubishi Heavy Indus., 1996 WL 732522, *2 (N.D. Ill. Dec. 18, 1996) ("A community of interest may arise between two companies jointly developing a patent because they have a common legal interest in obtaining the greatest protection and ability to profit from the patent. . . . The community of interest, however, covers only communications relating to the prosecution and litigation of the patents, and not communications relating to the parties rights between themselves."); Heidelberg Harris, Inc. v. Mitsubishi Heavy Indus., 1996 WL 514993, *2 (N.D. Ill. Sept. 6, 1996) ("The documents involved are not subject to the attorney-client privilege . . . unless . . . there is an identical legal interest . . . . This Court finds that Mitsubishi and Sumitomo share a common legal interest to deal with Harris' threats of infringement. Both parties faced the same threat of liability if Harris would prevail on its infringement theory. Although Sumitomo has not been actually sued, the community of interest rule still applies."); Johnson Elec. N. Am. v. Mabuchi N. Am. Corp., 1996 WL 191590, *3-4 (S.D. N.Y. April 19, 1996) ("Johnson was facing a claim for infringement of Mabuchi's patents. At the same time its customer was being drawn into the litigation both as a presumptively unwilling witness and as a potential target of Mabuchi on the theory that it had purchased and then distributed infringing machines from Johnson. . . .. Inevitably, as a matter of both litigation strategy and business necessity, Johnson and Dickson were de facto allies. Both faced a threat of liability if Mabuchi prevailed on its infringement theories. Moreover, Johnson, as a supplier anxious to please its customer, had a strong economic incentive to avoid unnecessarily embroiling that customer in litigation that arose from Johnson's activities in marketing the assertedly infringing equipment. From this confluence of interests, it is not surprising to discover that Hong Kong counsel represented both Johnson and Dickson at the deposition and the Johnson entered into an indemnification agreement with Dickson. . . . . This congeries of circumstances amply demonstrates that the two companies had strong common interests in the course of discovery taken by Mabuchi from Dickson. Of necessity, then, communications between their respective counsel addressing the manner in which the deposition and other discovery was conducted, as well as means of limiting such discovery and protecting Dickson's legal rights under the law of Hong Kong, come will within the common-interest extension of the attorney-client privilege."); SCM Corp. v. Xerox Corp., 70 F.R.D. 508, 514, 2 Fed. R. Evid. Serv. 535 (D. Conn. 1976) ("Chester Carlson, Battelle, and Xerox shared a business interest in the successful exploitation of certain patents. Whether the legal advice was focused on pending litigation or on developing a patent program that would afford maximum protection, the privilege should not be denied when the common interest is clear."); Duplan Corp. v. Deering Milliken, Inc., 397 F. Supp. 1146, 1172 (D. S.C. 1974) (Different persons of corporations have a community of interest "where they have an identical legal interest with respect to the subject matter of a communication between an attorney and a client concerning legal advice . . . . The key consideration is that the nature of the interest be identical, not similar, and be legal, not solely commercial."); Burlington Industries v. Exxon Corp., 65 F.R.D. 26, 43, 19 Fed. R. Serv. 2d 533 (D. Md. 1974) (joint licensors of patents share a sufficiently common interest).

16. United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir. 1989) ("[T]he joint defense privilege serves to protect the confidentiality of communications passing from one party to the attorney for another party where a joint effort or strategy has been decided upon and undertaken by the parties and their respective counsel."); In re Bevill, Bresler & Schulman Asset Management Corp., 805 F.2d 120, 126 (3d Cir. 1986) ("The joint defense privilege protects communications between an individual and an attorney for another when the communications are 'part of an ongoing and joint effort to set up a common defense strategy.'"); Griffith v. Davis, 161 F.R.D. 687, 1995 U.S. Dist. LEXIS 13882, *13 (C.D. Cal. 1995) "Thus, the joint client doctrine typically has been applied to overcome what would otherwise have constituted a waiver of confidentiality because a communication had ben shared between two clients."); Magnaleasing, Inc. v. Staten Island Mall, 76 F.R.D. 559, 564 (S.D. N.Y. 1977) ("Communications among the attorneys for codefendants are privileged only if the communications are designed to further a joint or common defense."); In re Grand Jury Subpoena Duces Tecum Dated Nov. 16, 1974, 406 F. Supp. 381, 394 (S.D. N.Y. 1975) ("[the] attorney-client privilege . . . is no less vital to the functioning of a joint defense than it is to the proper course of wholly independent representation."); Parisi v. Plainview Orthopedics & Sports Assoc., P.C., 1997 N.Y. Misc. LEXIS 228, *10 (May 2, 1997) ("This Court concludes that the privilege serves its purpose when parties who are concerned with potential litigation, as well as those who are already involved in a law suit, may attend a strategy session with their respective attorneys without fear that the full contents of the meting will later be available to a potential adversary. . . . A proper assertion of the privilege in a given instance therefore will rest on whether the exchange was for the purpose of giving and receiving shared legal counsel in or in anticipation of litigation, as opposed to transmitting information that was business-oriented or personal in nature."); Visual Scene, Inc. v. Pilkington Bros., 508 So.2d 437, 440, n.3 (Fla. Dist. Ct. App. 1987) ("Where one party in such a relationship makes a statement to the attorney for another party to the relationship, for the limited purpose of the 'pooled information' situation, the attorney for one becomes the attorney for the other. Thus the confidentiality enjoyed by a client with his own attorney is extended to communications with any attorney representing another in the group. Since persons with common litigation interests are likely to have an equally strong interest in keeping confidential this exchanged information, the common interests exception to waiver is entirely consistent with the policy underlying the privilege, that is, to allow clients to communicate freely and in confidence when seeking legal advice."); Strong v. State, 739 S.W. 2d 506, 508 (Tex. App. 1987), aff'd, 773 S.W.2d 543 (Tex. Crim. App. 1989) (The court denied the privilege protection to a letter written by the defendant to the attorney for an accomplice, in an effort "to urge [the accomplice's] lawyer to urge [the accomplice] to participate in a joint defense as opposed to taking the action which she did, which was to plead guilty and testify against him." The court concluded that "[s]ince the communication was not made as part of the preparation of a joint defense, since [the accomplice] was making no defense at all ... the admission of Strong's letter was not precluded by the attorney-client privilege."); State v. Maxwell, 10 Kan. App. 2d 62, 691 P.2d 1316, 1321 (1984) ("The disclosure of privileged information by an attorney to counsel of actual or potential codefendants does not constitute a waiver of the attorney-client privilege."); State v. Emmanuel, 42 Wash. 2d 799, 259 P.2d 845, 854-55 (1953) ("Where two persons having a common interest in certain pending litigation had a conference with the attorney representing one of them, it was held the communications between the attorney and the client were privileged and could not be shown to a third party."); Chahoon v. Commonwealth, 62 Va. (21 Gratt.) 822, 841-42 (1871) ("When the communication sought to be introduced as evidence was made, Chahoon, Sands, and Sanxay were all under a joint indictment for conspiracy.... Under such circumstances, it was natural and reasonable, if not necessary, that these parties, thus charged with the same crimes, should meet together in consultation with their counsel, communicate to the latter all that might be deemed proper for them to know, and to make all necessary arrangements for the defence.... Now nothing can be more certain than that, according to all the authorities on the subject, whatever either of the counsel present heard, or saw, on the said occasion, concerning the matter of the said charge, was a privileged communication, within the meaning of the rule.").

17. See, e.g., Diversified Industries, Inc. v. Meredith, 572 F.2d 596 (8^th Cir. 1977) (en banc). See also State v. Cinel, 660 So. 2d 887, 1995 La.App. LEXIS 2302, *7, 15 (La. Ct. App. 4th Cir. 1995) (To prove that he was being prosecuted in contravention of an agreement with the District Attorney's office, Cinel called his former counsel as a witness. "[T]he trial court held that the defendant waived the attorney-client privilege for the purposes of the motion hearing only. In other words, the trial court was of the opinion that Cinel's waiver at the motion hearing had been a limited waiver." "[T]he record supports the trial court's conclusion that the defendant's waiver of the attorney-client privilege was intended to be limited to the hearing on the motion to quash."); Adelman v. Adelman, 561 So.2d 671, 676 (Fla. Dist. Ct. App. 1990) (Florida courts limit waiver based on a balance between necessity and fairness. Here the court allowed the waiver of the attorney-client privilege so that the attorney may defend himself against charges of malpractice but limited the waiver to issues related solely to the malpractice cause of action. The court found the waiver only for the tribunal and not to the "entire world."); Rollins Properties, Inc. v. CRS Sirrine, Inc., 1989 Del. Super. LEXIS 504, *14 (Delaware seems to recognize limited waiver, although no extensive discussions have been provided by the courts. "[T]he defendant has consistently asserted protection as to the documents sought or the redacted potions supplied, therefore, there has been no waiver of those documents. Furthermore if there has been a waiver via the affidavit and the documents produced pursuant thereto, it has been a specifically limited waiver."); O'Brien v. New England Mut. Life Ins. Co., 109 Kan. 138, 197 P. 1100, 1102 (1921) (The court implicitly recognized the concept of limited waiver. The client had communicated with her attorney in the presence of an opposing party (her husband). While the court acknowledged that this could be seen as a waiver of the attorney-client privilege protection in litigation between the former husband and wife, there was no waiver vis-a-vis third parties. Consequently, when in litigation with the former husband's insurance company, it was appropriate to exclude the testimony of the wife's attorney. "There is no room for presuming that statements made to his attorney by one party to a divorce action in the presence of the other in the course of a conference looking to an adjustment of the controversy are not intended to be confidential. That situation is peculiarly one in which public policy favors encouraging the fullest freedom of utterance.").

18. Westinghouse Electric Corp. v. Republic of the Philippines, 1991 U.S. App. LEXIS 29515, *9-10 (3d Cir. Jan. 25, 1991); In re Rospatch Sec. Litig., 1991 U.S. Dist. LEXIS 3270, *46 (W.D. Mich. Mar. 14, 1991); Permian Corp. v. United States, 665 F.2d 1214, 1216 (D.C. Cir. 1981); Baxter Travenol Labs. v. Abbott Labs, 117 F.R.D. 119, 120 (N.D. Ill. 1987); Dowd v. Calabrese, 101 F.R.D. 427, 439-40 (D. D.C. 1984). But see, Glenmede Trust Co. v. Thompson, 56 F.3d 4767, 1995 U.S. App. LEXIS 12930, (3d Cir. 1995) (trial court refused to honor confidentiality agreement and writ of mandamus was denied)
 

Occasionally, courts have concluded that a waiver has occurred because the parties had not entered to a confidentiality agreement. Prebilt Corp. v. Preway, Inc., 1988 U.S. Dist. LEXIS 10764 (E.D. Pa. Sept. 23, 1988); Chubb Integrated Systems Ltd. v. national Bank of Washington, 103 F.R.D. 52, 66-67 (D. D.C. 1984); Nye v. Sage Products, Inc. 98 F.R.D. 452, 453 (N.D. Ill. 1982). See generally, R. Joslin, Confidentiality Orders in Complex Litigation, 4 Rev. Lit. 109 (1984).

19. United States v. Cable News Network, 1994 U.S. Dist. LEXIS 15686, *37 (S.D. Fla. 1994) (The prison tape recorded all telephone conversations between the criminal defendant, Noriega, and his defense team. CNN obtained those tapes and broadcast them over the airwaves in violation of a court order. In defense of the contempt citation, CNN claimed that the conversations were never privileged because Noriega and his attorneys knew that they were being recorded. The court rejected this argument.); State v. Today's Bookstores, Inc., 86 Ohio App. 3d 810, 621 N.E.2d 1283, 1993 Ohio App. LEXIS 1672 *10-14 (1993) ("We also disagree with Nichols's argument that the attorney-client privilege was waived and that the document lost its privilege when it was somehow disclosed to the news media.... If disclosure was by some person who was not entitled to have memorandum or who did not authority to waive the privilege, the document is still privileged.... The trial court referred to a 'leak' of the July 9 memorandum, indicating that the trial court had concluded that the disclosure was not voluntary. The trial court erred when it held that the attorney-client privilege had been waived where there is no evidence that the City of Dayton had voluntarily relinquished the memorandum."); Blackmon v. State, 653 P.2d 669, 671 (Alaska Ct. App. 1982) ("Conversation between defendant and his counsel during a trial recess was confidential for purposes of applying lawyer-client privilege where the measures taken by attorney and client evidenced reasonable care on their part to maintain confidentiality; thus, witness who overheard part of the conversation should not have been allowed to disclose to jury what he had heard and his testimony in that regard constituted prejudicial error. Early decisions reveal a reluctance to extend the lawyer-client privilege's full protection to situations involving passersby or eavesdroppers who overheard lawyer-client conversations.... However, there has been support in modern cases for extending the privilege where the client and his lawyer intended their communications to be confidential and where precautions to preserve confidentiality were reasonable under the circumstances."); Concrete Block & Prods. Co. v. Kurtz, 34 Mich. App. 38, 39 190 N.W.2d 725, 726 (1971) (Communications were secretly tape recorded. "The attorney's claim of the attorney-client privilege was also properly upheld by the trial court as the record does not support defendant's claim that the privilege was ever waived."); Lanza v. New York State Joint Legislative Committee, 3 N.Y. 2d 92, 164 N.Y.S.2d 9, 12, 13 (1957) (the court found that the attorney-client privilege was not destroyed where an attorney-client communication was surreptitiously recorded during the client's incarceration).
 

Professor Wigmore explained: "All involuntary disclosures, in particular, through the loss or theft of documents from the attorney's possession, are not protected by the privilege, on the principle that, since the law has granted secrecy so far as its own process goes, it leaves to the client and attorney to take measures of caution sufficient to prevent being overheard by third persons. The risk of insufficient precautions is upon the client. This principle applies equally to documents. 8 Wigmore § 2325, p.633.

20. See Lanza v. New York State Joint Legislative Comm. On Gov't Ops., 5 Misc.2d 324, 164 N.Y.S.2d 531, 533 (1^st Dept. 1957) ("This is not the case of a private third person overhearing a conversation because of the fault or carelessness of one or both parties. Obviously under such a condition there is no privilege for the parties have impliedly waived the privilege by failure to exercise that degree of care consonant with the importance of the situation. The argument that the electronic device is comparable to a third person, though neither party was aware of or consented to its use, is without merit.").

21. Rattner v. Netburn, 1989 U.S. Dist. LEXIS 6876, *26 (S.D. N.Y. June 20, 1989) ("If a party withholds a document from disclosure on the basis of privilege and, on motion of its adversary, the Court holds that the document is not privileged , the resulting disclosure of the document will not be deemed a waiver of the privilege for purposes of other lawsuits.").

22. See, e.g., Allread v. Grenada, 988 F.2d 1425, 1334 (5^th Cir. 1993) ("In our view, an analysis which permits the court to consider the circumstances surrounding a disclosure on a case-by-case basis is preferable to a per se rule of waiver. This analysis serves the purpose of the attorney-client privilege, the protection of communications which the client fully intended would remain confidential, yet at the same time will not relieve those claiming the privilege of the consequences of their carelessness if the if the circumstances surrounding the disclosure do not clearly demonstrate that continued protection is warranted."); United States v. Plache, 913 F.2d 1375 (9^th Cir. 1990); KL Group v. Case, Kay & Lynch, 829 F.2d 909 (8^th Cir. 1987); Velsicol Chemical Corp. v. Parsons, 561 F.2d 671 (7^th Cir. 1977); Stratagem Dev. corp. v. Heron Int'l N.V., 1993 U.S. Dist. LEXIS 89, *5 (S.D. N.Y. Jan. 6, 1993) ("The inadvertent disclosure doctrine balances two competing considerations. On one hand, errors must not be so freely forgiven that counsel will neglect to conduct careful document reviews. On the other hand, if the privilege evaporates as soon as any erroneous disclosure is made dispute reasonable precautions, counsel will be compelled to conduct document reviews that consume inordinate amounts of their time and their clients' money in an effort to attain perfection."); Monarch Cement co. v. Lone Star Industries, Inc. 132 F.R.D. 558, 559 (D. Kan. 1990) ("Waiver imports an intentional relinquishment or abandonment of a known right, and to hold that a waiver could occur through inadvertence would be the antithesis of that concept."). See also, Herbert v. Anderson, 681 So.2d 29, 1996 La. App. LEXIS 1988, *7 (La. Ct. App. 4th 1996) ("The inadvertent disclosure of this communication by defendants' counsel does not constitute a waiver of that privilege."); First Wyoming Bank, N.A. v. Continental Ins. Co., 860 P.2d 1064 (Wyo. 1993) (When the client has used reasonable efforts to maintain the confidentiality of privileged communications, the inadvertent disclosure of them will not result in the destruction of the privilege protection.); State v. J.G., 261 N.J. Super. 409, 619 A.2d 232, 237-38 (App. Div. 1993), cert. denied 133 N.J. 436, 627 A.2d 1142 ("We recognize that some courts have held the attorney-client privilege is waived by a mistaken disclosure. This approach is based on the premise that the privilege interferes with the search for truth and therefore must be narrowly applied, and that the risk of insufficient precautions should rest with the party at fault. Others have questioned this thesis, characterizing the traditional rule as 'atavistic, generating ... harsh results out of all proportion to the mistake of inadvertent disclosure.' ... We question, however, whether our courts would adopt the strict approach and [doubt that they would] conclude that the privilege is automatically waived by reason of an inadvertent disclosure.") (see also N.J.R.E. 504(1)); Goldsborough v. Eagle Crest Partners, Ltd., 314 Or. 336, 342, 838 P.2d 1069 (1992) aff'd, 314 Or. 336, 838 P.2d 1069 (1992) ("A court need not necessarily conclude that the lawyer-client privilege has been waived when a document has been produced during discovery. Factors to be considered by the court may be whether the disclosure was inadvertent, whether any attempt was made to remedy any error promptly, and whether preservation of the privilege will occasion unfairness to the opponent."); Monsanto Co. v. Aetna Cas. & Surety Co. (Monsanto II), 1991 WL 53822, at *1 (Del. Super. Ct. Apr. 8, 1991) ("a party does not waive any attorney-client privilege ... by the unintended production of documents during discovery."); Barnes/Science Associates Ltd. Partnership v. Barnes Engineering Co., 1990 Conn. Super LEXIS 464 (Conn. Super. Ct. June 7, 1990) (court directed the return of inadvertently disclosed documents); Farm Credit Bank v. Huether, 454 N.W.2d 710 (N.D. 1990)(The Supreme Court of North Dakota, after presenting a detailed analysis of the law surrounding inadvertent disclosures, held that a privileged document inadvertently given to opposing council did not result in a waiver of the attorney-client privilege.); Hartman v. El Paso Natural Gas Co., 107 N.M. 679, 763 P.2d 1144, 1152 (1988) ("Our study of this issue persuades us that the court in Hartford Fire Insurance Co. v. Garvey was right in its assessment: 'The modern trend seems to be towards a case by case determination of waiver based on a consideration of all circumstances. The majority of cases do hold, or take for granted, that inadvertent disclosure of privileged documents may waive the privilege....' The 'inadvertence' of the production is considered as one factor in determining whether there has been a waiver."); Manufacturers & Traders Trust Co. v. Servotronics, Inc., 132 A.D.2d 392, 522 N.Y.S.2d 999, 1003-04 (4th Dept 1987) (Recognizing that "[t]he problem of inadvertent disclosure in large document productions challenges traditional assumptions about the waiver of the attorney-client privilege", the court established an exception to the waiver of the attorney-client privilege where the disclosure is made inadvertently. The court stated: "While reasonable precautions might be required to promote appropriate standards of care in document production, there is no reason to apply the harsh traditional approach to a litigant who inadvertently discloses a document, at least prior to the time that remedying an accidental production would cause the adversary any prejudice."); Fuller v. Preston State Bank, 667 S.W.2d 214, 220 (Tex. App. 1983) ("The bank asserts that the letter was a privileged communication and that it was included by mistake in the papers produced in response to the request. However, the record before us contains no evidence of mistake or inadvertence. In the absence of such evidence, the privilege was waived."). In the absence of case law, New Hampshire has adopted an inadvertent disclosure exception by rule, Rule 511, NHRE.

23. Leslie at 74.

24. Rattner v. Netburn, 1989 U.S. Dist. LEXIS 6876, *26 (S.D. N.Y. June 20, 1989) ("If a party withholds a document from disclosure on the basis of privilege and, on motion of its adversary, the Court holds that the document is not privileged, the resulting disclosure of the document will not be deemed a waiver of the privilege for purposes of other lawsuits.").

25. Leslie at 83.

26. Leslie at 83.

27. Leslie at 77.

28. 491 U.S. 554, 571 (1989). For fear of groundless "fishing expeditions," with the district court being used as "unwitting agents" of the opponents of the privilege, the Court held that before engaging in an in camera review to determine the applicability of the crime/fraud exception "'the judge should require a showing of a factual basis adequate to support a good-faith belief by a reasonable person,' . . . that in camera review of the materials may reveal evidence to establish the claim that the crime/fraud exception applies."

29. P.R. Rice, Attorney-Client Privilege in the United States (West Group 2^nd ed. 1999).

30. Id. at § 11:15, pp. 127-36 (footnotes omitted).

31. For example, one document was the president's minutes of a meeting among company executives to discuss the legal implications of a proposed merger. In the minutes it was revealed that the investment bankers indicated that they would have no problem financing the proposed arrangement. This statement revealed that third-parties were present during discussions with legal counsel. As a consequence, the confidentiality of the corporation's communications was breached and the privilege was lost.

32. Leslie at 43-45.

33. Case No. C1-94-8565 (Minn. Dist. Ct.)

34. Many 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 copies being sent to the employees with whom communications were primarily intended). See, e.g., Avianca, Inc. v. Corriea, 705 F. Supp. 666, 676 (D. D.C. 1989) ("Where the communication is with in-house counsel for a corporation, particularly where that counsel also serves a business function, the corporation must clearly demonstrate that the advice to be protected was given 'in a professional legal capacity.' . . . This limitation is necessary to prevent corporations from shielding their business transactions from discovery simply by funnelling their communications through a licensed attorney."); In re LTV Securities Litig., 89 F.R.D. 595, 602 (N.D. Tex. 1981) ("One of the concerns expressed by persons who advocate limiting the corporate client to the 'control group' is that to do otherwise increases the risk that an attorney can be used to shield information by routing data through him."); Simon, The Attorney-Client Privilege as Applied to Corporations, 65 Yale L.J. 1953 (1956) (warning of the creation of "zones of silence"). As a result the courts require a clear showing that the attorney was acting in his professional legal capacity before cloaking documents in the privilege's protection. See, e.g., Stramara v. Stramara, 1998 WL 726664, *1 (E.D. Pa. Oct. 16, 1998) ("Based upon Mr. Morrow's deposition transcript, it appears he did not receive the memorandum as part of a request for legal advice. First, fellow vice-presidents at Dorsey Trailers did not know Mr. Morrow as an attorney, and so the possibility that other members of Dorsey management sought Mr. Morrow out for legal advice is, at best, remote. Second, it also appears from the transcript that the memorandum came across Mr. Morrow's desk as part of the memorandum's distribution to other members of management."); Burton v. R.J. Reynolds Tobacco Co., 1997 U.S. Dist. LEXIS 21232, *15 (D. Kan. Dec. 23, 1997) (The district court upheld the magistrate's rejection of RJR's privilege claim for minutes of a meeting of the Industry Technical Committee with CTR representatives. "The minutes were prepared by an RJR employee and sent to in-house counsel. The magistrate found that the document did not indicate that it was for the purpose of legal advice, but rather was only for the purpose of keeping counsel informed. RJR relies on Hercules Inc. v. Exxon Corp. 434 F. Supp. 136 (D. Del. 1977), in arguing that a communication made for the purpose of keeping counsel informed may be privileged. The Hercules court stated that a communication intended to keep the attorney apprised of continuing business developments with an implied request for legal advice based thereon may be protected. Id. at 149. The court also noted that a communication is not privileged if made in the routine course of business without a request for legal advice. Id. at 145. Here, there is no indication that the routine report made in Tab 21 sought legal advice. Accordingly the magistrate did not clearly err in finding that the document is not privileged." Had the magistrate in Burton ruled that the purpose of the communication was for legal advice, it is likely that the district judge would have upheld that decision too. Therefore, when addressing privilege claims for communications to and from in-house counsel, it is essential that complete factual demonstrations be made at the initial decision level of all elements of the privilege.); Governale v. Airborne Express, Inc., 1997 U.S. Dist. LEXIS 7562, * 21-22 (E.D. N.Y. May 12, 1997) ("It is well established that the 'mere fact that a communication is made directly to an attorney, or an attorney is copied on a memorandum, does not mean that the communication is necessarily privileged.' . . . Where the attorney to whom the memoranda were sent is serving a function other than that of a legal advisor, no privilege exists. . . . At the time that Mr. Zech was sent the two memoranda his position, although entitled Employee Relations Legal representative, required legal and non-legal work and was comparable to those held by the two other representatives of the Department, who were not attorneys. . . . When employee matters were referred to the Department, they were assigned randomly to one of the three representatives. . . . Based on this framework, I find it is unlikely that the memoranda were sent to Zech for legal advice even though he was not the representative assigned to plaintiff's complaint. . . . Although Mr. Zech has stated that the authors of the memoranda in question sought advice from him or consulted with him 'in his capacity as an attorney,' . . . I find that defendant has failed to establish that the memoranda were 'intended to be confidential,' . . . or that 'a dominant purpose of the communication[s] was to obtain legal advice.' . . . Instead, the fact that the memoranda were circulated to several Airborne employees suggests that the opposite is true."); ABB Kent-Taylor, Inc. v. Stallings & Co., Inc., 172 F.R.D. 53, 55 (W.D. N.Y. Nov. 21, 1996) ("Privilege issues with respect to communications between in-house corporate counsel and the corporate client have proven to generate thorny discovery and disclosure problems for the courts. In-house counsel often serve their corporate employer in mixed business-legal roles. Indeed, '[t]heir day-to-day involvement in their employer's affairs may blur the line between legal and non-legal communications' and thus require Judges to 'cautiously and narrowly' apply the privilege in cases involving corporate staff counsel' lest the mere participation of an attorney be used to seal off disclosure.' . . . The present discovery dispute pays tribute to the nettlesome issues which occur when corporate counsel negotiate business transactions with third parties on behalf of their employer and then offer confidential legal advice to the corporate client withh respect to the substance of those negotiations and the legal issues implicated."); Borase v. M/A COM, Inc., 171 F.R.D. 10, 14, 37 Fed. R. Serv. 3d (LCP) 428 (D. Mass. 1997) ("Accordingly, if an in-house counsel has other nonlegal responsibilities, the party invoking the privilege has the burden of producing evidence in support of its contention that in-house counsel was engaged in giving legal advice and not in some other capacity at the time of the disputed conversations. . . . Thus, in the instant case, in order to prevail, M/A COM must prove that Mr. Birchfield was acting as an attorney during the course of these disputed conversations. Merely saying that he was so acting in a memorandum of law is patently insufficient to meet the burden. Neither can it be assumed. . . . As the Court of Appeals for the District of Columbia noted in a case in which the Government, during in investigation of a 'Company' for suspected criminal activity, sought grand jury testimony from an individual noted 'C': 'We are mindful . . . that C was a Company vice president, and had certain responsibilities outside the lawyer's sphere. The Company can shelter C's advice only upon a clear showing that C gave it in a professional legal capacity.'" . . . M/A COM would have the Court presume [that legal advice was being sought] from the circumstances, arguing that obviously Mr. Birchfield was acting in the same capacity as the attorneys from [the outside law firm of] Edwards & Angell. While such an assumption might be able to be made if M/A COM had retained outside counsel for the particular purpose of representing it in its dealing with Mr. Borase and his attorneys, the assumption cannot be made in the case of an in-house counsel who has other additional responsibilities over and above the rendering of legal advice. On the record before me, it is not possible to find that Mr. Birchfield was giving legal as opposed to business advice."). For a complete survey of the cases addressing this issue, see P.R. Rice, Attorney-Client Privilege in the United States, § 7:2, at 25 n23 (West Group 2d ed. 1999).

35. "Elimination of the requirement would crate costs where they do not currently exist, necessitate more complex and time-consuming adjudication processes, and increase the numbers of privilege claims that are made." Leslie at 78.

36. Leslie at 50.