After a contentious and still ongoing debate, a commission of the American Bar Association recommended last week that lawyers be permitted to share fees with other professionals, which would make it possible for lawyers to go into partnership with accountants, business consultants, and private investigators.
 

One question that the commission did not fully answer--but which is crucial to the future of "multidisciplinary" practice--is how such a change would affect the traditional protections of the attorney-client privilege. If nonlawyers in the newly created law-plus firms are given access to privileged communications, will the privilege, long jealously guarded by the profession, be destroyed?
 

The short answer is: Probably not. But creating the possibility that nonlawyers could have regular access to such communications, and expanding the scope of what "law" firms may be retained to do, could undermine important presumptions and significantly affect the way in which these firms should treat attorney-client communications in order to preserve the privilege. Fortunately, there is a solution that would indeed eliminate most privilege disputes.
 

To successfully assert the attorney-client privilege today, the proponent must establish five factual elements: that (1) a client (2) communicated (3) with an attorney (4) in confidence (5) for the purpose of obtaining legal advice or assistance. Courts are now willing to presume that legal advice is being sought whenever a client communicates with outside legal counsel because of the limited type of work generally performed by law firms. Therefore, the first impact of the merger of legal and other disciplines may be the unwillingness of courts to employ this presumption. Generally, however, this increased burden should not be difficult to satisfy. A simple description of legal services provided should suffice.
 

Since all attorneys are bound by the Code of Professional Responsibility, which requires them to maintain the confidentiality of client communications, courts now assume that lawyers in a firm have preserved their clients' confidences among themselves, unless evidence to the contrary is presented. After these proposed mergers, this presumption may no longer be justified. Third parties with no professional relationship to the clients' legal business and no comparable code of professional conduct may have regular access to attorneys' files and thus to confidential communications.
 

STRETCHING THE PRIVILEGE

Historically, lawyers have been allowed to share client communications with certain third parties--such as paralegals, secretaries, investigators, accountants, and other experts--without waiving the privilege. So long as the services of these individuals were needed to render the requested legal assistance, the third parties came within the permissible circle of confidentiality. In addition, since outside experts were not part of the law firm, and therefore did not have broad access to attorneys' files, there was little fear that the client's confidences in the main would not be properly preserved. No specific evidence had to be produced of the firm's efforts to preserve confidences.
 

However, after the proposed mergers of law and nonlaw practices, the presumptions of confidentiality and legal assistance may no longer be justified. Courts may find it appropriate to treat these law-plus firms more like in-house corporate counsel than like traditional private lawyers. Since in-house counsel often provide business as well as legal services, the corporation, in asserting the privilege, must demonstrate, relative to each allegedly privileged communication, both the legal nature of the work requested and the existence and preservation of confidentiality. Nothing can be presumed because nothing is sufficiently probable.
 

In fact, in arguing for the application of the privilege to client communications made to and by this new breed of firms, the most significant hurdle will be the demonstration of confidentiality: that the lawyers in these firms made all reasonable efforts to protect and preserve the secrecy of each communication. This may not be as easy as it sounds. The confidentiality element of the attorney-client privilege spawns more than 75 percent of all litigated privilege issues, in part because of common misconceptions about the relationship between secrecy and the privilege itself.
 

As many lawyers know, the element of confidentiality is often ignored in practice. The best examples of this have been the willingness of courts to gloss over the loss of confidentiality when documents have been stolen and to excuse the absence of secrecy when documents have been inadvertently disclosed. In short, secrecy has become little more than a condition precedent to the creation of the privilege, but not a necessary condition to its continued survival.
 

This practical development is not bad in theory either. By ensuring that the client cannot later be hurt by his own words, the privilege encourages open communications from the client to the attorney. But the requirement of strict secrecy sets an additional restriction on the privilege that is totally unrelated to the privilege's purpose. If the client desires secrecy (in addition to the protection of the privilege) for particular communications, he can control the context in which he talks with his lawyer. If absolute secrecy is not important to him, it does not follow that the client does not still want or need the protection of the privilege for those communications.
 

Under existing case law, the ABA commission's multidisciplinary proposal would increase the costs of asserting the privilege. In order to minimize the extensive proof of confidentiality that will be required for each and every document, the new law-plus firms will have to use the same burdensome confidentiality policies--that is, much stricter control of the creation, labeling, and distribution of such communications--that they now promulgate for their corporate clients.
 

On the other hand, if confidentiality were abolished as a requirement of the attorney-client privilege (see my "Attorney-Client Privilege: The Eroding Concept of Confidentiality Should Be Abolished," 47 Duke Law Review 101 (1998)), most privilege problems--not only for these new law-plus firms, but for all corporate and other legal entities--could be eliminated. And the protections of the privilege would survive.