While courts have universally found the attorney-client privilege crucial to the effective practice of law, many attorneys have little more than a cursory understanding of it. This, in part, is attributable to the fact that no privilege rules were codified in the Federal Rules of Evidence--Rule 501 leaves the interpretation of all privileges, including the attorney-client privilege, to "principles of the common law as they may be interpreted . . . in light of reason and experience."
 

A substantial percentage of the attorneys with whom I have consulted have expressed the erroneous belief that the privilege was designed principally to protect the advice of counsel and thus protects all communications from the attorney to the client.⁽¹⁾

These and other common misperceptions are echoed in an increasing number of appellate decisions, which abandon the principles that have historically controlled the application of the privilege. This is illustrated in a few recent decisions.
 

FOUR RECENT APPELLATE MISAPPLICATIONS
 

1. Communications From an Attorney--Whose

Communications are Protected by the Privilege?--

When Is Legal Advice or Assistance Protected?
 

The attorney-client privilege affords a direct protection to confidential communications from the client to the attorney when the client is seeking legal advice or assistance. The logic of the privilege is that insulating these communications from the discovery process assures the client that his communications cannot be used against him, and thus encourages him to be more candid with his legal counsel. This candor will lead to more informed, and therefore, more accurate advice from the attorney, which will ultimately result in greater compliance with the requirements of the law by the client.⁽²⁾
 

Because the responsive communications from the lawyer often reveal the substance of what the client confidentially communicated, the privilege has afforded a derivative protection to the attorney's responses that directly or indirectly disclose the client's communications. To obtain this derivative protection, the client or lawyer must prove two privileges--that the privilege applies to the client's original communication and that the lawyer's response discloses that original communication.⁽³⁾
 

Because the responsive communications from the attorney, as often as not, reveal the content of the client's previous communications, twentieth century attorneys progressively began to refer to the privilege as protecting communications "between" the attorney and client.⁽⁴⁾ This characterization drew attention away from the derivative nature of the protection for the responsive communication, prompting many courts to believe that the privilege afforded a direct protection for all communication "between" the attorney and client . . . or at least all communications of legal advice from the attorney. This recharacterization of the scope of the privilege protection quickly gained support among courts, not only because it was roughly accurate, but also because it simplified the resolution process for derivative claims--all that had to be demonstrated was that the lawyer had confidentially communicated legal advice or assistance to the client. The hidden danger in this practice, however, recently surfaced in the Ninth Circuit's decision in United States v. Bauer.⁽⁵⁾
 

Bauer involved the prosecution of a bankruptcy petitioner for fraudulently concealing assets in his bankruptcy petition. In his defense Bauer claimed that he had innocently withheld information about certain assets because he had believed that they did not have to be reported. Consequently, the principal focus of the trial was on Bauer's intent. To establish a knowing misrepresentation, the government called the defendant's former bankruptcy attorney who, over Bauer's objections, was required to testify. The attorney asserted that he had informed Bauer that as a bankruptcy petitioner he had a legal obligation to report all of his property in the petition and that any false statement would constitute perjury. On the appeal of his conviction, Bauer claimed that the trial judge's order had violated his attorney-client privilege, and the Ninth Circuit agreed.
 

The trial judge had required the disclosure by the bankruptcy attorney on the grounds that when an attorney informs the client of the rules of the court, he is not acting as an attorney, but as an officer of the court conveying public information. This decision was influenced, in part, by a well-established body of law holding that when an attorney notifies a client of dates on which the client has been ordered by the court to appear for a hearing (sentencing, for example), there can be no reasonable expectation on the part of the client that such communications are confidential.⁽⁶⁾ Some courts have referred to the lawyer as serving as nothing more than a "conduit" of such information from the court to the client. Consequently, the attorney can be required to reveal that the client was advised of the appearance date if he is later tried for failing to appear, or that the client was advised of a deficiency notice received from the IRS if the IRS attempts to establish the time from which a petition for review should have been filed. Without explaining why informing a client of where and when the law requires him to personally appear or to take actions to protect his rights is not legal assistance protected by the privilege, the court held that informing the client of where and when the client's assets must appear is legal advice that is privileged. This decision was a direct product of the recharacterization of the scope of the attorney-client privilege as protecting communications "between" the attorney and client--affording a direct protection to responsive attorney communications, regardless of what they disclose.
 

Under the derivative theory for responsive communications, this attorney's communication should not have been privileged because it did not reveal prior privileged communications of the client. And this would be true regardless of whether the attorney's communications were characterized as "legal advice" or the "transmission of public information." While the transmission of information about the law could reasonably be interpreted as "legal assistance," unless that "assistance" involved the application of the legal principles to the unique facts communicated by the client, there was no basis for extending the privilege protection.
 

The recharacterization of the scope of the privilege protection has lost sight of the privilege's purpose--to encourage open communication from the client. Courts have consistently asserted that the privilege should be construed narrowly--applied only in those instances where it is necessary to achieve its defined goal. Courts must constantly be conscious of the need to minimize the suppression of relevant evidence. Because there is little reason to believe that lawyers who wish to assist their clients in complying with the law will withhold notifications of the type involved in Bauer even if those communications are not protected by the privilege, the narrow scope and purpose of the privilege protection dictates that the privilege not extend to such communications.
 

This recharacterization and misapplication of the privilege may be the direct result of the Supreme Court's casual reference in Upjohn v. United States⁽⁷⁾ to the attorney-client privilege as protecting "not only what the attorney says to the client, but also what the client says to the attorney." This statement has misled a generation of lawyers about the primary focus of the privilege. It has led many to believe that protecting the communications from the attorney is privilege's primary goal, but that it "also protects what the client says." This stands the privilege on its head and leads directly to the absurd result of Bauer. The law has seldom experienced difficulty is getting attorneys to communicate with their clients; instead, it was the clients' fear of negative repercussions from their open communications with their attorney that drove the privilege.
 

Under the classical definition of the privilege, communications from the attorney to the client of only factual information obtained from third parties (e.g., from interviews with witnesses who are not agents of the client), or legal principles found or otherwise known by the attorney (e.g., the requirements for qualifying for bankruptcy and the implications of reporting false or incomplete information on a bankruptcy petition) are not, and should not be, within the scope of the of the attorney-client privilege protection.⁽⁸⁾ The information acquired by the attorney may, however, be protected by the work product immunity if prepared in anticipation of litigation.⁽⁹⁾
 

2. Properly Distinguishing Communications

from Information Should Make Legal Opinions

for the Office of Chief Counsel Privileged
 

While judicial opinions frequently assert that the attorney-client privilege protects communications rather than information,⁽¹⁰⁾ the application of that distinction has proven much more difficult than its recitation. For example, the Circuit Court for the District of Columbia recently held that internal legal memoranda from the Office of Chief Counsel for the Internal Revenue Service (itself part of the Chief Counsel's Office of the Treasury Department), that had been requested by IRS field agents were not protected by the attorney-client privilege.⁽¹¹⁾ In Tax Analyst the court appeared to base its decision on two lines of reasoning.
 

First, the court found that the communications from the attorneys in what is called the Field Service Advice Memoranda (hereafter FSAs), were not based on "confidential information obtained from the client," but rather on communications from outsiders , i.e., individual taxpayers, that did not contain "'any confidential information concerning the Agency.'" Second, the court held that since the opinions of counsel were being used as a basis for agency policy, those opinions were, in substance, law created by the IRS that should be applied with consistency to all taxpayers, and therefore, should be subject to discovery by taxpayers.
 

Confidential "Information" from the Client
 

The first line of reasoning, requiring "confidential information" from the client, reflects a fundamental, albeit widely held, misunderstanding of privilege. The nature of the "information" contained in the communications from the client to the attorney is irrelevant to the communications' privileged status. Regardless of where the client acquired the <