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Both preserving a client's confidences and representing a client zealously are viewed as fundamental duties of an attorney. What is the source of these duties? What is there about the role an attorney plays which requires these obligations?
While no one seriously disputes that confidentiality and zeal are desirable attributes of an attorney in representing a client, at some point, preserving a client's confidences or secrets may inhibit the truthfinding function of the adversary system or may prevent the just solution of a dispute between parties. And at some point, zeal on the part of a client may infringe upon the rights of others and may lead the attorney to violations of law. How much impairment of the truth-finding function or infringement on the rights of others do the concepts of confidentiality and zeal allow? At what point must these concepts give way? Commentators have been debating these questions for some time, but have produced less than satisfying answers. This section will identify the competing interests at stake and examine attempts to resolve these issues taken by the Model Rules, the courts and the bar.
The attorney-client privilege prevents attorneys from being compelled to disclose the confidences of their clients. It is an evidentiary privilege and has no application outside of the courtroom. In addition, its scope is normally quite narrow. Although, as the case below demonstrates, Missouri takes a broad view of the privilege, it is still available only in limited circumstances as defined by statute and common law.
State ex rel. Great American Insurance Co. v. Smith, 574 S.W.2d 379 (Mo. banc 1978):
[Respondent Judge ordered relators (fire insurers being sued for failure to pay) to turn over letters from their attorney written during the course of investigation of a fire and providing advice regarding whether to pay the claim. Relators brought a proceeding in prohibition to avoid turning over the letters on the grounds they were protected from disclosure by the attorney-client privilege embodied in RSMo. § 491.060. The Court rejected a narrow interpretation of the privilege it had taken in an earlier version of these proceedings (563 S.W.2d 62 [Mo. banc 1978]) and made permanent its ruling in prohibition, thereby prohibiting disclosure of the letters by the attorney.]
The attorney-client privilege dates from the reign of Elizabeth I of England. See 8 J. Wigmore, supra, § 2290. In recognition of that common law privilege, the legislature has enacted a statute, § 491.060, which provides, in part:
The following persons shall be incompetent to testify:
(3) An attorney, concerning any communication made to him by his client in that relation, or his advice thereon, without the consent of such client;
The foregoing section has been held in a court of appeals opinion to be declaratory of the common law rule. . . .We agree that it should be so construed. The statute does not limit or diminish the common law rule.
There are two prevailing views as to the scope of the attorney-client privilege, following an emphasis on two different fundamental policies. Dean Wigmore emphasized the fundamental societal need to have all evidence having rational probative value placed before the trier of facts in a lawsuit. While he argued against Jeremy Bentham's suggestion that the attorney-client privilege be abolished, he regarded it as an exception to what he considered to be the more fundamental rule, and one which "ought to be strictly confined within the narrowest possible limits consistent with the logic of its principle." 8 J. Wigmore, supra, § 2291 at 554.
A different fundamental policy is emphasized by Sedler & Simeone in "Privileges in the Law of Evidence: The Realities of Attorney-Client Confidences," 24 Ohio St.L.J. 1 (1963). While the authors acknowledge Wigmore's view of attorney-client privilege as an exception to the policy of disclosure of all evidence, they view confidentiality of communications between attorney and client as the more fundamental policy, to which disclosure is the exception. This view is based in part on the duty of a lawyer to preserve a client's confidences, subject to a very limited privilege of disclosure, which is imposed by the Canons of Professional Ethics. The greater societal need for confidentiality is attributed to the relationship of lawyer to client in giving advice a relationship in which secrecy has always been considered important. In support of a broad attorney-client privilege, the article states at p. 3:
As long as our society recognizes that advice as to matters relating to the law should be given by persons trained in the law, that is, by lawyers, anything that materially interferes with that relationship must be restricted or eliminated, and anything that fosters the success of that relationship must be retained and strengthened. The relationship and the continued existence of the giving of legal advice by persons accurately and effectively trained in the law is of greater societal value, it is submitted, than the admissibility of a given piece of evidence in a particular lawsuit. Contrary to the implied assertions of the evidence authorities, the heavens will not fall if all relevant and competent evidence cannot be admitted.
We find this analysis of the fundamental policy underlying attorney- client privilege to be preferable to that of Wigmore. There clearly is a societal need for persons to be able to employ and consult with persons trained in the law for advice and guidance as to legal matters. As recognized by Sedler & Simeone, confidentiality of the communications between client and attorney is essential for such relationships to be fostered and to be effective. It was so considered at common law as shown by the following from the case of Annesley v. Earl of Anglesea, 17 How.St.Tr. 1139 (Ex. 1743), in which the Honourable Mr. Baron Mounteney said at 1241:
(A)n increase of legal business, and the inability of parties to transact that business themselves, made it necessary for them to employ . . . other persons who might transact that business for them. That this necessity introduced with it the necessity of what the law hath very justly established, an inviolable secrecy to be observed by attorneys, in order to render it safe for clients to communicate to their attorneys, all proper instruction for the carrying on those causes which they found themselves under a necessity of intrusting to their care.
The nature and complexity of our present system of justice and the relationships among people and between the people and their government make the preservation and protection of the attorney-client privilege even more essential. If this is to be accomplished, when one undertakes to confer in confidence with an attorney whom he employs in connection with the particular matter at hand, it is vital that all of what the client says to the lawyer and what the lawyer says to the client to be treated as confidential and protected by the attorney-client privilege. This is what a client expects. A rule of attorney-client privilege broad enough in scope to achieve this goal was adopted by the influential American Law Institute. ALI Model Code of Evidence, Rule 209(d) (1942) provides:
As used in Rules 210 to 213:
(d) 'confidential communication between client and lawyer' means information transmitted by a voluntary act of disclosure between a client and his lawyer in confidence and by a means which, so far as the client is aware, discloses the information to no third persons other than those reasonably necessary for the transmission of the information or the accomplishment of the purpose for which it was transmitted.
· · · ·
Comment on Clause (d): A communication means information transmitted voluntarily by any means; to be confidential it must be transmitted in confidence and in such a way that it will not, to the knowledge of the client, be disclosed to third persons to whom disclosure is not reasonably necessary to make the communication effective or to accomplish its purpose. Communication between client and lawyer includes not only a communication from client to lawyer but also a communication from lawyer to client.
The Wigmore approach, adopted in our decision reported at 563 S.W.2d 62, is narrower than that of the ALI Model Code of Evidence. It would protect the confidentiality of all of what the client says to the lawyer but would not protect all of what the lawyer says to the client. Of the lawyer's statements to his client, it would protect only (1) advice by the attorney concerning a communication to him by his client, (2) anything the lawyer said which could be an admission of his client, or (3) anything said by the lawyer that would lead to inferences concerning the tenor of what the client had said to him.
We are of the opinion that the Wigmore approach does not provide enough protection for the confidentiality of attorney-client communications to accomplish the objective for which the privilege was created and now exists. Under the Wigmore approach, not all of a lawyer's advice is confidential, and statements by the lawyer which are not in the nature of advice are totally unprotected, except to the extent that they disclose what the client has said. . . . In other words, anything said by the attorney to his clients about the matter he was handling for them would not be treated as confidential unless it was advice on information actually conveyed by the clients to the attorney or what was said would disclose what the clients had told the attorney. All other consultation, opinion and advice is not protected under the Wigmore view.
When a client goes to an attorney and asks him to represent him on a claim which he believes he has against someone or which is being asserted against him, even if he as yet has no knowledge or information about the claim, subsequent communications by the attorney to the client should be privileged. Some of the advice given by the attorney may be based on information obtained from sources other than the client. Some of what the attorney says will not actually be advice as to a course of conduct to be followed. Part may be analysis of what is known to date of the situation. Part may be a discussion of additional avenues to be pursued. Part may be keeping the client advised of things done or opinions formed to date. All of these communications, not just the advice, are essential elements of attorney-client consultation. All should be protected.*
This does not mean that discoverable factual information can be made privileged by being recited by the attorney or the client in their confidential communications. Only the actual attorney-client communications are privileged.
The scope of discovery under existing rules and decisions is sufficiently comprehensive to afford parties to litigation ample means of securing factual and other data needed for preparation and trial of a case.**
In this case, it is clear that Risjord was employed to represent relators in the handling and defense of the claims of Cannova and Mid-Continent arising out of the December 24, 1973 fire. There is no question but that the three letters Risjord wrote to relators pertained to these matters in which he had been employed. Risjord so stated and the court's findings as set out in the letter of April 21, 1977, so show. If this were not so, we would direct the court to conduct a hearing and examine representatives of relators or Risjord or both to determine whether at the time the letters were written, the relation of attorney and client regarding the insurance claims existed, and whether the letters pertained to the matters for which Risjord had been employed. If either answer were in the negative, the privilege would not apply.
This procedure would be in harmony with Bussen v. Del Commune, 239 Mo.App. 859, 199 S.W.2d 13 (1947), in which the court discussed the propriety of the trial court's action in admitting into evidence a lawyer's testimony concerning a note which had been addressed to him by the late husband of defendant. In upholding the admission of that note into evidence, the court said:
Our statute, which is declaratory of the common-law rule, provides that an attorney shall be incompetent to testify concerning any communication made to him by his client in that relation, or his advice thereon, without the consent of such client. "It is thus to be observed that for the rule of privilege to apply, the relation of attorney and client must have actually existed between the parties at the time the communication was made or the advice given. Moreover, such relation must have existed as to the subject matter of the communication or advice; and the communication, if it is to be privileged, must have been made to the attorney in his professional capacity, and on account of the relation of attorney and client. If such relation existed, the privilege is not confined to communications or advice in connection with pending or anticipated litigation, but it extends to all matters where the attorney was consulted by his client for professional advice or service in the course of the employment. "The question of whether the note was a privileged communication was one of law for the court; and to enable it to rule upon the question, the court proceeded to examine Mr. Boverie in regard to his relations with Del Commune, and the circumstances under which the note had come into his possession.
It should be noted that the inquiry was not directed to whether part or all of the note might be admissible in spite of the attorney-client privilege by reason of the nature of its content. Instead, the determinative issue was whether the relationship of attorney and client existed between the parties at the time of the communication with reference to the subject matter of the communication. The court concluded from the evidence, based on the finding of the trial court, that the note had not been communicated as a part of an attorney-client relationship. Consequently, it was not a privileged communication.
We recognize that in some of the federal cases cited by Cannova the court has approved the utilization of an in camera examination by the court of attorney-client communications to determine how much, if any, thereof shall be made discoverable under the Wigmore approach. Bird v. Penn Central Company, 61 F.R.D. 43 (E.D.Pa.1973), is such a case. However, no state court decision approving or adopting that procedure has been cited, and we have found none. We have concluded that we should not adopt such a rule in this case. The harm to the traditional attorney-client relationship which could result from permitting a trial judge to interrogate a lawyer or his client to learn what the attorney said in their conferences, or to examine the lawyer's letters to ascertain what he said to the client therein, in order to determine what portions thereof could be made available to the other parties under the Wigmore test could, and we believe would, be considerable. It should not be permitted.
DONNELLY, Judge, dissenting.
In my view, the primary concern of the judicial process is that we seek the truth and then do justice. Deviations from this goal should not constitute "the more fundamental policy." The principal opinion makes paramount the protection from disclosure of what an attorney says to his client. I cannot agree.
SEILER, Judge, dissenting.
In almost every instance, in my view, were a lawyer asked to disclose what advice he gave his client, a Missouri trial judge would sustain the objection to the question, based on privilege. I believe law practice has been conducted on this basis in Missouri for years, and I see nothing in State ex rel. Great American Insurance Company v. Smith, 563 S.W.2d 62 (Mo. banc 1978) which will, as a practical matter, change the situation.
But there are a few situations where a lawyer's advice is not privileged unless it fits the limitations of the statute, § 491.060, exactly. One such situation is where the insured is suing on the policy, as here, and is claiming damages for vexatious refusal to pay. Suppose, for example, that Mr. Risjord's three letters advised relator not to pay the claim because he mistakenly believed the proof of loss was filed a day late and the insurer acted accordingly. Why shouldn't the insured be able to discover this fact and use it against the insurer? What is there about permitting discovery of this fact which would in any way hinder prospective clients from consulting lawyers and making a complete disclosure of the facts to counsel?
The proposed opinion, however, makes everything that takes place from lawyer to client privileged. All communications, not just advice, are to be protected and privileged.
The proposed opinion cites Bussen v. Del Commune as supporting the proposition that the determinative issue with respect to whether or not a communication is privileged is whether the relationship of attorney and client existed between the parties at the time of the communication with reference to its subject matter. Since the relationship did not exist in the Bussen case, it was not a privileged communication; ergo, since it does exist in the present case (Risjord concededly was attorney for relators), the communication is privileged.
This view ignores the important fact that the communication under examination in the Bussen case and the context, therefore, in which the court's language must be considered, was a communication from the alleged client to the lawyer, which is why, under the statute (then § 1895, RSMo 1939) it would have been privileged had the attorney-client relationship been found to exist. The Bussen decision is not authority for the proposition that if the attorney-client relationship exists, any communication by the attorney to the client is privileged . . . . The Bussen case is authority only for the proposition that if the relationship does exist, then a communication by the client to the lawyer is privileged, but that is not what we have before us at the moment.
The proposed opinion also relies heavily on the law review article in 24 Ohio St.L.J. 1, written in 1963, by Professors Sedler and Simeone (now a judge of this court) which frankly states the view that anything that materially interferes with the attorney-client relationship is to be restricted or eliminated and anything that fosters its success is to be retained and strengthened and expresses concern that the "preserve" of lawyers is constantly being entered by other professions. In my opinion, our view as Judges must be broader than the protection of a "preserve". Not long ago this court saw fit to create an "insured-insurer" privilege. . . . Now we are about to expand greatly the attorney- client privilege. We keep making it harder for the facts to be ascertained. We have gotten along all right in Missouri for well over one hundred years with the attorney-client privilege as it was until the present decision. There is no need to broaden it at this late date. It may be, as the above article states, that "the heavens will not fall if all relevant and competent evidence cannot be admitted", Id. at 3, but by the same token, people will not stop consulting lawyers if the attorney-client privilege is not broadened, either.
The broadened scope of attorney-client privilege established by the proposed opinion will dismantle a good part of the scope of Missouri discovery. Under rule 56.01(b)(1) discovery is limited to matters "not privileged." . . . Lawyers are being presented with a legitimate way to avoid disclosing what has up till now been discoverable facts.
I am in complete accord with Canon 4 of rule 4 that a lawyer should preserve the confidence and secrets of a client. A client expects a lawyer to keep his affairs in confidence and not to talk or gossip about them. A lawyer with a loose tongue is an abomination. But that is not the problem before us and the fact that the ethical lawyer does not talk about his client's confidences does not answer the present problem. We have here a question of discovery, where the courts are being asked to order production of what may be highly relevant evidence, not heretofore privileged, and which cannot otherwise be brought to light.
It is conceivable that communications or advice from the lawyer to the client might be pieced together to discern communications made by the client to the lawyer. In such a case, the lawyer to client communications would be privileged under the present statute, s 491.060, which forbids disclosure by the attorney of any communications made to him by the client. The statute adequately protects against indirect as well as direct disclosure of the client's communications and there is no need for us, ex gratia, to expand the rule so as to cover, carte blanche, everything the lawyer passes to the client.
I respectfully dissent.
To what extent has the Missouri Supreme Court reached an accommodation between the interests at stake? Is it the appropriate one? Can this accommodation be utilized to resolve broader issues of attorney confidentiality or is it limited to application of the privilege itself?
What are the elements of the attorney-client privilege? See Restatement § 118. When can it be asserted? Confidentiality is key to the privilege, both as a matter of policy and application. See generally Restatement § 121 and Commentary. Thus, disclosures made in a setting that is not confidential, or in the presence of unnecessary third parties, are not covered by the privilege. See Shire v. Shire, 850 S.W.2d 923, 931 (Mo. App. 1993).
The privilege belongs to the client, and can be waived. See Restatement § 127-30. In Missouri, the privilege is waived by voluntary disclosure. Smith v. Smith, 839 S.W.2d 382 (Mo. App. 1992). Where a party places the subject matter of the communication in issue, such that "proof of the party’s claim will necessarily entail proof of the contents of an attorney-client communication," waiver will be found. State ex rel. Chase Resorts, Inc. v. Campbell, 913 S.W.2d 832 (Mo. App. 1996). Where a party relies on an advice-of-counsel defense, the privilege is generally waived. Williams v. Preman, 911 S.W.2d 288, 301 (Mo. App. 1995).
There are exceptions to the attorney-client privilege, most notably the crime-fraud exception, found in Restatement § 132. That exception renders the privilege inapplicable to a communication occurring when a client: "(a) consults a lawyer for the purpose, later accomplished, of obtaining assistance to engage in a crime or fraud or aiding a third person to do so, or (b) regardless of the client’s purpose at the time of consultation, uses the lawyer’s advice or other services to engage or assist a crime or fraud." The client’s purpose to misuse the attorney-client relationship or the advice obtained therefrom is key to the crime-fraud exception. It is also irrelevant whether or not the lawyer was aware of the crime or fraud. The exception is not applicable, however, where the client consults the attorney for purposes of achieving compliance with the law. See § 132, Comment c.
In Missouri, although the crime-fraud exception has been recognized since 1920 in a criminal context, Gebhardt v. United Railways Co. of St. Louis, 220 S.W.2d 677, 679 (Mo. 1920), it is an open question whether it applies in a civil context (where the underlying activity is fraudulent but not criminal). See State ex. rel. Peabody Coal Co. v. Clark, 863 S.W.2d 604, 607-608 (Mo. ban 1993) (expressly reserving the question). Where the exception is claimed, the party seeking to raise it has a high burden. The party seeking to avoid the privilege must meet a two part test. First, the party must make a "prima facie showing that the privileged party has committed a crime or fraud. Second, the seeking party must demonstrate that the privileged information bears a direct and contemporaneous relationship to the crime or fraud alleged." Id. at 608. "Timing is critical, for the prima facie showing requires that the ‘client was engaged in or planning a criminal of fraudulent scheme when he sought the advice of counsel to further the scheme.’" Id.
Many jurisdictions also recognize an exception for lawyer self-protection. See Restatement § 133. The privilege does not apply "to a communication that is relevant and reasonably necessary for a lawyer to employ in a proceeding (1) to resolve a dispute with a client concerning compensation or reimbursement that the lawyer reasonably claims the client owes the lawyer; or (2) to defend the lawyer against an allegation by any person that the lawyer, an agent of the lawyer, or another person for whose conduct the lawyer is responsible acted wrongfully during the course of representing a client." This exception is derived from the "breach of duty" exception in evidence codes. See § 133, Reporter’s Notes. Few reported decisions address this exception.
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