California Law Review, Inc.

An Historical Perspective on the Attorney-Client Privilege

Author(s): Geoffrey C. Hazard, Jr.
Source: California Law Review, Vol. 66, No. 5 (Sep., 1978), pp. 1061-1091
Published by: California Law Review, Inc.
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 An Historical Perspective on the
Attorney-Client Privilege
Geoffrey C. Hazard,Jr.t

I am to breakwiththeesomeaffairs
Thattouchme near,whereinthoumustbe secret.
The Two Gentlemenof Verona,
Act iii, sc. 1.*

In his professionallife David was mostly concernedwith the pro-

cedure of litigation,particularlyin the adversarysystem. He believed
deeply in the adversarysystem as an expressionof humane concerns,
for he saw it as recognizingboth the fallibilityand the dignityof man.
He also believed deeply in the idea of evidentiaryprivilege-that there
are some things,indeed many things,in life that shouldnot be open to
public inspection,even for "goodcause." It is thereforeespeciallysat-
isfying to say somethingin his memoryaboutthe attorney-clientprivi-
lege, for that privilege involves an intersectionof the mechanismof
adjudicationwith the law of privacy.

The attorney-clientprivilege may well be the pivotal element of

the modernAmericanlawyer'sprofessionalfunctions. It is considered
indispensableto the lawyer'sfunction as advocate on the theory that
the advocatecan adequatelypreparea case only if the client is free to
disclose everything,bad as well as good. The privilegeis also consid-
ered necessaryto the lawyer'sfunctionas confidentialcounselorin law
on the similar theory that the legal counselorcan properlyadvise the
client what to do only if the client is free to make full disclosure.
Therehas alwaysbeen some anxietyaboutthe privilege,as thereis
about all privileges. As a matterof common sense it is unlikelythat a
client would wish to withhold from his lawyer informationthat puts
him or his cause in a favorablelight. Of course, it is possible that a
particularclient on a particularoccasion may be concernedwith the
privilegeas a matterof principle-wishing to avoid even the most flat-
t John A. Garver Professor of Law, Yale University. B.A. 1953, Swarthmore College;
LL.B. 1954, Columbia University. The author is Consultant to the American Bar Association
Commission to Evaluate Professional Standards. The views herein are those of the author alone.
* I am not well acquainted with Shakespeare, but David was. In memory of him I pre-
sume to tender apt quotation.

1061

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 1062 CALIFORNIALAWREVIEW [Vol. 66:1061

tering revelationsof his affairs and his self. Yet assuming there are
such instances, it seems fair to say they are greatly outnumberedby
those in which the principle of privacy is invoked to conceal legally
dubious or dirty business. And when dubious or dirty business has
been done, most likely someonehas sufferedas a result. In the nature
of things, then, the attorney-clientprivilegehas its victims.
In the proceduralcontextsin which the attorney-clientprivilegeis
invoked, the identityof the victim is usually not difficultto discern. It
is the party seeking disclosureof the confidence. Hence, the common
sense estimate of situations involving the attorney-clientprivilege is
that the lawyer,though an "officerof the court,"is allowed to conceal
wrong-doingby the client in the face of a specificdemandfor its disclo-
sure by the very personsufferingthe wrong.' Theremay be a sufficient
justificationfor the privilege;indeed the verdictof our legal historyis
to that effect. But no argumentof justificationshould ignore the fact
that the attorney-clientprivilege,as far as it goes, is not only a principle
of privacy, but also a device for cover-ups. That, of course, is what
makes contemplationof it both interestingand troubling.

I
THE PRESENT SCENE

In present-daylaw, the issue concerningthe attorney-clientprivi-

lege is not whetherit should exist, but preciselywhat its termsshould
be. There is no responsibleopinion suggestingthat the privilege be
completelyabolished. Total abolitionwould mean that an accusedin a
criminalcase could not explain his versionof the matterto his lawyer
without its being transmittedto the prosecution. Defense counsel
would become a medium of confession, a result that would substan-
tially impair both the accused's right to counsel and the privilege
againstself-incrimination.Hence, it is commongroundthat the privi-
lege ought to apply at least to communicationsby an accusedcriminal2
to his counsel,3in contemplationof defenseof a pendingor imminently
threatened4prosecution,5concerninga completedcrime.6 Beyond this
1. It may be thought that this is not true when the privilege is applied to communications
between a criminal defendant and his counsel. In such a situation, so it might be said, there is no
immediate victim because the state is the opposing party. If one bears in mind the victims of
homicide, rape, robbery, and embezzlement, whose oppression is the occasion of criminal prosecu-
tion, however, such an argument carries little weight.
2. Whether it should also apply to communications to the accused's counsel from other
persons, such as the accused's spouse, is more problematic.
3. Another problem is whether it should apply to communications with aides of counsel,
such as a clerk. See, e.g., Barnes v. Harris, 61 Mass. (7 Cush.) 576 (1851).
4. A pending prosecution ought plainly to be within the privilege, or the privilege is point-
less. An "imminently threatened" prosecution can be assimilated to one that is pending by simply
denying legal significance to the movement of a file from the police to prosecutor or the court
system. But if the crime is as yet wholly undiscovered, or prosecution is only a future contingency,

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1978] ATTORNEY-CLIENTPRIVILEGE 1063

there is controversyas to the proper scope of the privilege, although

superficiallythe authoritiesare in substantialagreement.
One convenientstatementof the rule of privilegeappearsin Rule
26 of the Uniform Rules of Evidence.7 In this formulation,the privi-
lege attaches to "communications ... between lawyer and his client in
the course of that relationship and in professional confidence . . un-
less the legal service was sought or obtained . . to commit or plan to
commita crimeor a tort The rule appliesto consultationscon-
.... ."8
cerning civil as well as criminallitigation,to plaintiffsas well as de-
fendants,to consultationsin which the client seeks advice only and not
simply assistancein litigation, and to communicationswhose aim is
assistance other than in litigation, such as draftinglegal documents.
And so the privilegeis generallyunderstood.
Yet upon closer reading,the scope of the rule is not so plain. This
becomes evident when the rule is appliedto situations(aside from the
criminal defendant'scommunicationto an attorney)where its exclu-
sionaryeffectis really important.These are situationsin which the cli-
ent is doing or planning to do something that is very bad, such as
committinga crime or destroyingevidence, or where the client wants
the lawyerto do somethingvery bad, such as suborningperjuryor aid-
ing in fraud.9 In such circumstances,it is arguablethat the privilege,
the situationis again problematic.Consider,for example,what counselshoulddo if askedby a
client what ought to be done with old businessrecordsthat might reveal evidence of crime.
CompareShapirov. United States,335 U.S. 1 (1948)(businessrecords),withIn re Ryder,263 F.
Supp. 360 (E.D. Va. 1967)(moneytakenin bank robbery).
5. A "prosecution"is a proceedingfor punishmentof a crime. Whetherthe privilege
shouldapplyin otheractionsfor a penalty,suchas a suit for punitiveredressby a privateparty,is
also problematic.The problemis comparableto thatof definingthe limitsof the privilegeagainst
self-incrimination. See C. MCCORMICK, ? 121 (2d ed. 1972).
EVIDENCE
6. Consultationconcerningan intendedcrimewas held outsidethe privilegeat leasta cen-
tury ago, see The Queen v. Cox & Railton, 14 Q.B.D. 153 (1884),and (dependingon how one
readscases)perhapstwo centuriesago. See Annesleyv. Anglesea,17 How. St. Trials 1139(1743)
(also captionedCraigv. Anglesea,see note 53 infra). The most difficultproblemis that arising
whenthe clientis engagedin a courseof criminalconduct(e.g., antitrustviolations,buildingcode
violations)that continuesinto the present. The conductbecomesprotectedby the privilegeas a
completedcrimeonly when it is wholly terminated,but the terminationitself may be the subject
of the legal consultation.
7. UNIFORM RULE OF EVIDENCE 26. See also ALI MODEL CODE OF EVIDENCE rule 212
(1942);ProposedFederalRules of Evidencerule 503, 51 F.R.D. 315 (1971).
8. Thereare otherexceptionsand qualificationsthatneed not detainus. See generally8 J.
WIGMORE, EVIDENCE ?? 2290 (3d ed. 1940);C. MCCORMICK, supra note 5, ch. 10.
In some jurisdictionsthe exceptionconcerningcivil wrongsis definedin termsof "fraud"
ratherthan "tort."This can makea difference.See Nowell v. SuperiorCourt,223 Cal. App. 2d
652, 36 Cal. Rptr.21 (1963).
9. This is not to say that the attorney-clientprivilegehas no significancein less morally
questionabletransactions.Of courseit is importantthat a personbe able to makea will without
having its contentsrevealed;it is importantfor a taxpayerto have privateguidanceon the tax
classificationof a transactionwhosecharacterfor that purposeis ambiguous;it is importantfor a
litigantto be able to reviewhis testimonyin confidencepriorto beingsubjectedto cross-examina-
tion, etc. But if it couldbe assumedthatall suchtransactionswerewhollyinnocuousfroma legal

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 1064 CALIFORNIALAWREVIEW [Vol. 66:1061

by its own terms, is not applicable. That is, if the client has in mind
anythingbut a "legitimate"purposein consultinga lawyer,it mightbe
said that communicationsbetweenthem are neither"in the courseof'
the attorney-clientrelationship nor in "professional"confidence."o
Furthermore,if the consultationis manifestlyin aid of proposedcon-
duct that would be a crimeor a tort,it is exceptedfromthe privilegeby
the expresstermsof the rule. And it may not be far-fetchedto say that
it is tortiousto make any use of legal processfor a purposeotherthan a
"legitimate"one."
The scope of the attorney-clientprivilegein these borderlineareas
has never been well definedin the cases,12as will be shown. Of course,
bordersin law can neverbe markedwith greatprecision. But the pres-
ent confusionis compoundedby the fact that the bar has taken a quite
differentapproachto attorney-clientconfidentialityin its rules of pro-
fessional ethics.
The law of attorney-clientprivilegeis the productof judicial deci-
sions, augmented by statutes that usually incorporatethe decisional
law.' This will be called the "privilegerule." The rules of profes-
sional ethics,on the otherhand, emanatefromthe legislativeprocessof
the legal professionitself. For over a half century,the centrallegisla-
tive sourcein the legal professionhas been the AmericanBar Associa-
tion, acting through its House of Delegates. The A.B.A. has
undertakento state rules of professionalethics that it hopes will be
adoptedby the statesthroughtheir own bar associationsor courts. By
this processof adoption,and perhapssimplythroughrecognitionof the
ruleswithinthe professionat large,the bar seeksto establishprevailing
norms governing the responsibilitiesof the attorneyin the attorney-
client relationship,includingthe responsibilityto maintainconfidenti-
ality. The rulespromulgatedby the bar associationthereforehave con-

point of view, the privilege would be a mere nicety-valued, perhaps, in a world where personal
affairs are all too often open to scrutiny, but not a rule that would engage intense legal debate.
Moreover, if all transactions to which the rule applied were innocuous, the privilege could be
given substantial effect simply by requiring that any hearing in which disclosure was made be
closed to the public, or that claims of privilege be determined in a hearing in camera.
10. See text accompanying notes 116-19 infra.
11. See California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972).
12. Among the difficulties are whether the lawyer is consulted in his capacity as a profes-
sional in law, see, e.g., Banks v. United States, 204 F.2d 666 (8th Cir. 1953), cert. denied, 350 U.S.
986 (1956); whether the lawyer gained knowledge of the matter in question by a "communica-
tion," see, e.g., Hawley v. Hawley, 114 F.2d 745 (D.C. cir. 1940); under what circumstances it can
be said that the client's purpose was a crime, see Annot., 16 A.L.R. 3d 1029 (1967), or a tort, see
Annot., 2 A.L.R. 3d 861 (1965), and particularly the problem of a client who intends to commit
perjury, see Wolfram, Client Perjury, 50 So. CAL. L. REV. 809 (1977); Annot., 64 A.L.R. 3d 385
(1975); and whether it makes a difference that the lawyer is asked to prepare a legal document
essential to the transactions in question, see Annot., 55 A.L.R. 3d 1322 (1974).
13. See, e.g., CAL.
EVID. CODE ? 954 (West Supp. 1978).

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 1978] ATTORNEY-CLIENTPRIVILEGE 1065

siderable significance'4 in defining the terms and conditions under

which a client's communications to his attorney are to be kept confi-
dential.'5 The bar's rule as to the proper scope of confidentiality, which
will be called the "confidence rule," is, perhaps not surprisingly, more
expansive that the rule of attorney-client privilege developed by the
courts.
The A.B.A. Canons of Ethics represented the official position of
the bar on matters of ethics until 1969, and included two provisions on
the subject of confidentiality, canon 37 and canon 41. Canon 37 pro-
vided:
The announcedintentionof a client to commita crimeis not included
within the confidencesthe [lawyer]is bound to respect. He may prop-
erly make such disclosuresas may be necessaryto preventthe act or
protectthose againstwhom it is threatened.
It will be observed that this exception to the confidence rule is narrower
than the comparable exception to the attorney-client privilege. It refers
to an "announced" intention to commit a crime; the privilege rule re-
quires no such announcement. The difference is thus that under the
privilege rule, an attorney who can infer that the client has a criminal
purpose in mind has no privilege to keep that purpose a secret, while
under the canon's confidence rule the attorney must respect the client's
confidences unless explicitly told of such a purpose. Moreover, the ca-
non refers only to crimes, while the privilege rule exempts communica-
tions relating a contemplated torts as well.
Canon 41, the other limitation on confidence in effect until 1969,
provided:
When a lawyerdiscoversthat some fraudor deceptionhas been prac-
tised, which has unjustlyimposedupon the courtor a party,he should
endeavor to rectify it; at first by advisinghis client, and if his client
refuses to forego the advantage thus unjustly gained, he should
promptlyinform the injuredperson or his counsel, so that they may
take appropriatesteps.
There is a peculiar discrepancy in the temporal dimension of this canon
as compared with the privilege rule. The exception in the privilege rule

14. The legal status of rules of ethics promulgated by a bar association is a matter of some
intricacy. Sometimes such rules, upon adoption by the courts, become in effect legislation, see,
e.g., Slater v. Rimar, Inc., 462 Pa. 138, 338 A.2d 584 (1975), and as such are authoritative subject
only to constitutional restraints. See, e.g., Chicago Council of Lawyers v. Bauer, 522 F.2d 242
(7th Cir. 1975), cert. denied, 427 U.S. 912 (1976) (rule adopted by federal court partially invalid
under the first amendment). But cf In re Hearings Concerning Canon 35, 132 Colo. 591, 296 P.2d
465 (1956), holding that bar association rules which have been adopted by the courts are merely
guidelines. On the other hand, bar association rules have been applied as a basis of attorney
discipline even though not adopted as rules of court. See, e.g., Hawk v. Superior Court, 42 Cal.
App. 3d 108, 116 Cal. Rptr. 713 (1974), cert. denied, 421 U.S. 1012 (1975).
15. On the difference between the concept of "privileged" communications between client
and attorney and "confidential" communications between client and attorney, see text following
note 26 infra.

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 1066 CALIFORNIALAWREVIEW [Vol. 66:1061

refers to legal assistance "to commit or to plan to commit" a fraud,

which plainly indicates future conduct; the exception under the privi-
lege rule also applies to a past transaction if it appears that the lawyer's
services were employed therein for the purpose of committing a wrong.
In contrast, canon 41 has a wider provision for secrecy in that it refers
only to past events.16 Canon 41 further limits the exception to the
confidence rule by referring only to "fraud or deception," while the
privilege exception refers to intentional torts generally.
The Canons of Ethics have since been supplanted through a com-
plex of bar legislation whose total import is not entirely clear. The
principal text currently in effect is the Code of Professional Responsi-
bility, initially adopted in 1969 and subsequently amended. The
Code's confidence rule requires generally that "A lawyer shall not
knowingly . . . reveal a confidence or secret of a client."" As origi-
nally drafted, the Code provided that a lawyer was permitted, but not
required, to reveal "the intention of his client to commit a crime and
the information necessary to prevent the crime."'" But it made no ref-
erence to disclosing fraud by the client, which had been covered by old
canon 41. The draft was therefore amended before the Code was
adopted in 1969. The placement and terms of the amendment were
such, however, that its meaning was not wholly clear.
The provision concerning fraud appeared in canon 7 of the 1969
Code, providing that "A Lawyer Should Represent a Client Zealously
Within the Bounds of the Law." This canon deals chiefly though not
exclusively with the role of the lawyer as advocate, and virtually all of
its constituent black-letter rules concern the advocate's function.
Hence, the provision concerning fraud seems by its placement to have
to do with fraud in connection with litigation. The text of the rule also
conveys that impression:
A lawyer who receives informationclearly establishingthat . . . his
client has, in the courseof the representation,perpetrateda fraudupon
a person or tribunalshall promptlycall upon his client to rectify the
same, and if his client refusesor is unableto do so, he shall revealthe
fraud .19
.. .
Apart from the possibility that the exception is limited to fraud in con-
16. It is surely odd to hold that a lawyer has no obligation to frustrate an as yet unfulfilled
fraudulent scheme of his client, but has an obligation to reveal past fraud. Canon 37, dealing with
crimes, takes just the opposite view, i e., it permits disclosure of intended crimes but not past ones.
If canon 41 were taken literally, it would mean that a lawyer could not defend a suit charging
fraud unless satisfied that the client was innocent. Such a rule is not inconceivable, or even neces-
sarily inconsistent with an adversary system, but it seems unlikely to have been what the bar
intended.
17. ABA CODE OF PROFESSIONALRESPONSIBILITY,Disciplinary Rule (DR) 4-101(B)(1). See
also id., Canon 4: "A Lawyer Should Preserve the Confidences and Secrets of a Client."
18. Id. DR 4-101(C)(3).
19. Id. DR 7-101(B)(1).

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 1978] A TTORNEY-CLIENTPRIVILEGE 1067

nection with litigation, however, this provision essentially corre-

sponded to old canon 41. It thus would exclude past fraud, though
apparentlynot future fraud, from the coverageof the veil of profes-
sional secrecy.
But the bar did not long adhereto this position. In 1974,it added
the qualification"exceptwhen the informationis protectedas a privi-
leged communication."20 On its face this is a profoundlyambiguous
provision. If it is intendedto mean that disclosureof fraudis not per-
mitted when the rule of attorney-clientprivilege prohibitsdisclosure,
then it means very little indeed. This is because,as we have seen, the
privilegerule in most statesdoes not confersecrecyon fraudexceptfor
revelations by an accused in connection with defense of a criminal
prosecution.21It is unlikely that the bar intended the amendmentto
have so little meaning. Indeed, the legislative history indicates that
what the bar meant to do was to narrowthe fraudexceptionand thus
enlarge the domain of secrecy.22
This purposewas fully effectuatedvia interpretationby the A.B.A.
Committeeon ProfessionalEthicsin an opinion23holdingthatthe term
"privilege"in the exceptionto the confidencerule meant "confidence
or secret," as defined in the Code of Professional Responsibility.
"Confidenceor secret"as definedin the Code of ProfessionalRespon-
sibility is a much more inclusive term than "privilege,"extendingto
"informationprotectedby the attorney-clientprivilegeunder applica-
ble law, and . . other information gained in the professional relation-
ship that the client has requestedbe held inviolateor the disclosureof
which would be embarrassingor would likely be detrimentalto the
client."24The effect of the opinion, therefore,is to enshroudwith se-
crecy anything a lawyer learns that might be "embarrassing ... or det-
rimental"to the client. That doesn'texclude much.
Perhapsthis is as the rule ought to be. There are respectableand
vociferoussupportersof the propositionthat anythinga lawyerlearns
about his client ought to be secret, maybe even includingthe client's
20. Id. DR 7-102(B)(1), as amended.
21. See United Services Automobile Ass'n v. Werley, 526 P.2d (Alaska 1974). The fraud
therewas describedas "ongoing."But everyfraudis "ongoing"until uncovered.Hence,under
that formulation of the privilege rule, secrecy does not attach to matters of fraud presently in civil
litigation.
22. For a thoughtful discussion of DR 7-102(B)(1), as amended, including its legislative his-
tory, see Note, Client Fraud and the Lawyer.-An EthicalAnalysis, 62 MINN. L. REV. 89 (1977).
23. ABA COMM. ON ETHICS AND PROFESSIONALRESPONSIBILITY,OPINIONS, No. 341 (1975).
24. ABA CODEOF PROFESSIONAL RESPONSIBILITY, DR 4-101 (A) (emphasis added). See
also text accompanying note 17 supra. As an act of interpretation, opinion 341 took some doing,
because it construed the term "privilege" to incorporate the whole of a provision conjunctively
referring to "privilege" and "secret." It has to be recognized that opinion 341 is only the latest in a
series in which the Ethics Committee has oscillated in its approach to revelation of a client's fraud
or perjury. See ABA COMM.ON PROFESSIONAL ETHICS,OPINIONS,No. 287 (1953).

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 1068 CALIFORNIALAWREVIEW [Vol. 66:1061

intentionto have the lawyercooperatein an exercisein perjury.25But

there are argumentsto be made on the other side.26
First, there is danger for the practicinglawyer wheneverthe bar
endeavorsto enlargethe scope of the confidencerule beyondthe scope
of the privilegerule as definedby the courts. The courtsdeny secrecy
to contemplatedor ongoing crimesand frauds,and many of them also
deny secrecyto futuretortsgenerally. Yet the bar would seem to have
it that a lawyeris duty-boundto keep everythingabout a client secret,
save that the lawyer"may"revealan intendedcrime. In this schemeof
things,what is a lawyerwho has knowledgethat is not protectedby the
attorney-clientprivilegesupposedto do?
Assume (1) the client discloses an intentionto kill someone;27or
(2) the client insists upon taking the stand when the lawyer knows the
testimonywill be perjury;28 or (3) the client inquiresaboutthe coverage
of a fireinsurancepolicy in such a way as to indicatean intentto falsify
the facts in making a claim under the policy.29
In the firstcase, involvingthreatenedmurderor a crimeof approx-
imately equal seriousnesssuch as arson,the lawyerwho does not try to
prevent the act might well be held criminallyliable.30 In the second
case, involving perjury,the lawyermight be liable for fraud.3' And in
the thirdcase, the lawyerneed do little morethan give an opinion on a

25. See Freedman, Professional Responsibility of the Criminal Defense Lawyer. The Three
Hardest Questions, 64 MICH.L. REv. 1469 (1966). Professor Freedman does not seem to have
faced the question whether a lawyer, if requested by his client, is bound to give advice as to the
line of perjury that would most likely escape refutation by the prosecution. It is not clear why this
result does not follow from his premises.
26. The bar itself presently holds to a position at least partly on the other side, requiring
counsel to "reveal the expressed intention of his client to commit a crime . . if the contemplated
crime is one which would seriously endanger the life or safety of any person or corrupt the
processes of the courts and the lawyer believes such action on his part is necessary to prevent it."
ABA PROJECT ON STANDARDS FORCRIMINAL JUSTICE,The Defense Function ? 3.7(d) (1971).
27. See Tarasoff v. Regents of the University of California, 17 Cal. 3d 425, 551 P.2d 334, 131
Cal. Rptr. 14 (1976).
28. See Annot., 64 A.L.R. 3d 385 (1975).
29. See Fidelity-Phenix Fire Ins. Co. v. Hamilton, 340 S.W.2d 218 (Ky. 1960).
30. By the terms of the Code of Professional Responsibility, the lawyer is permitted to reveal
the client's purpose, see DR 4-101(C)(3), and is required to do so under the ABA PROJECT ON
STANDARDS FORCRIMINAL JUSTICE,The Defense Function. See note 26 supra. Assuming there-
fore, that no ethical inhibition prevents disclosure, and assuming the foreseeable consequence of
nondisclosure will likely be death or devastation, the lawyer can avoid liability only if there is no
"special duty" to act. But the fact of being privy to such a secret may itself give rise to such a duty.
Furthermore, a lawyer has an ethical duty to try to dissuade a client from committing a crime.
That in itself can be the basis of a "special duty" to act if attempts at dissuasion are ineffective.
31. The weight of authority appears to be that a conspiracy to adduce false testimony is not
actionable. See Annot., 31 A.L.R. 3d 1423 (1970). But there may be liability if the use of false
testimony is a means to another wrongful end, see id. at 1438, which it almost inevitably is. And
the weight seems to be shifting. See, e.g., Roberts v. Ball, 57 Cal. App. 3d 104, 128 Cal. Rptr. 901
(1976).

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 1978] A TTORNEY-CLIENTPRIVILEGE 1069

stated set of facts to become involved in the client's scheme.32

In such situations,a lawyermay have to make a disclosurein or-
der to avoid personalliability. Perhapsit is sufficientto say that under
certain circumstancesa lawyer "may"reveal the confidence,although
it would be well if the Code extendedthis option to frauds for which
the lawyermight be held responsibleas well as to crimes. But the law
holds the lawyerliable in these circumstancesbecauseit is as wrongfor
the lawyer to permitthe wrong as it is for the client to commit it; the
lawyeris an accessory. Yet the rule permitsthe lawyerwho thinksthe
client can get away with the intended act not to disclose.33 That is
surely a peculiarposturefor officersof the legal system.
Contemplationof these consequencesinspiresanotherobservation
aboutthe bar'spresentposition. In its opinion34givingbroadconstruc-
tion to the rule of secrecy,the A.B.A. Committeeon ProfessionalEthics
statedthat such a constructionrestson a "tradition"in which the value
of confidentiality"should take precedence." And in support of this
propositionthe opinion refersto the "manyannotationsto DR 4-101."
In terms of running inches, most of the annotationsare to earlier
A.B.A. opinions. Relatively little caselaw is cited, and the notes rely
chiefly on Wigmore." But both the earlierA.B.A. opinionsexpressing
the bar'srule on "confidence,"and Wigmore'ssynthesisof the rule of
"privilege,"are ultimatelyderivedfrom the decisionallaw establishing
that "privilege"should be accorded to "confidences"between client
and lawyer. An examinationof that law indicatesthat the "tradition"
is not quite what the bar may think it is.

II
THE "TRADITION"

Wigmoresays of the privilege:

The historyof thisprivilegegoesbackto the reignof Elizabeth,where
the privilegealreadyappearsas unquestioned.... The policy of the
privilegehas beenplainlygrounded,sincethe latterpartof the 1700s
.... In orderto promotefreedomof consultation of legaladvisorsby

32. See SEC v. Frank, 388 F.2d 486 (2d Cir. 1968). Moreover, a client who would consult
an attorney about swindling a fire insurance company is unlikely to have compunctions, if caught,
against swearing that the lawyer put him up to it. Should lawyers have to wait for that to happen?
Cf DR 4-101(C)(4): "A lawyer may reveal . . confidences or secrets necessary . . to defend
himself. . . against an accusation of wrongful conduct."
33. The annotation to DR 4-101 also does not cite or deal with ABA COMM.ON PROFES-
SIONALETHICS,OPINIONS, No. 287 (1953). That decision held that a lawyer need not reveal fraud
on a court in connection with a divorce proceeding, but the opinion had to dispose of conflicting
prior A.B.A. opinions and was accompanied by a trenchant dissent. Thus, to say in 1975 that
there is a "tradition" dating back to 1953 is to foreshorten time rather severely in a profession as
old as ours.
34. ABA COMM. ON PROFESSIONALETHICS, OPINIONS, No. 341 (1975).
35. 8 J. WIGMORE,
supra note 8, ? 2290.

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1070 CALIFORNIALAWREVIEW [Vol. 66:1061

clients,the apprehension of compelleddisclosureby the legaladvisers

mustbe removed;andhencethelawmustprohibitsuchdisclosureex-
cepton the client'sconsent.36
There is somethingto this. Elizabethancases do indeed refer to
the privilege,37and although some of the early cases expressthe idea
that the privilege was that of the lawyer (a gentlemendoes not give
away mattersconfidedto him), as the rule developedthe privilegebe-
came that of the client to have his secretsprotected. It is also true that
in order to preventdisclosure,the law must prohibitit, for otherwise
the lawyer would be governedby the generalrule that a witnessmust
give evidence of facts within his knowledge.
But beyond this, the historicalfoundationsof the privilegeare not
as firm as the tenor of Wigmore'slanguagesuggests. On the contrary,
recognitionof the privilegewas slow and halting until after 1800. It
was applied only with much hesitation, and exceptions concerning
crime and wrong-doingby the client evolved simultaneouslywith the
privilege itself. At least in the English cases, an exceptionto the rule
was usually found if proof aliundeindicatedthat the client was indeed
engagedin some malfeasance. Taken as a whole, the historicalrecord
is not authorityfor a broadlystatedrule of privilegeor confidence. It
is, rather,an invitationfor reconsideration.

A. The Early Cases

Aside from fragmentaryreferencesfrom the Elizabethanperiod,
the reporteddecisionsinvolvingthe privilegebegin in 1654. In the pe-
riod from that year until 1743,almost a century,there are fourteenre-
ported decisions on the subject. In some of the cases the witness was
allowed to withhold his testimony,at least as to some matters,but on
groundsthat revealconsiderabledoubtaboutthe scope of the privilege.
In the others the claim of privilegewas denied.
In analyzingthese early cases it is importantto keep in mind the
distinctionmade in Englandbetweenbarristers,on the one hand, and
attorneys,solicitors,and scriveners,on the otherhand. In general,bar-
risterspresentedthe evidence and argued the law in court;attorneys
and solicitorspreparedcases for litigation,advisedclients,and drafted
documents;scrivenersenscribeddocumentsand may also have given
advice on the side. It appearsthat the term "counsel"was used to refer
to barristers,although that term or the term "counselor"may some-
times have been used to refer to attorneysand solicitors. There may
have been some overlapof functionthen as now;in any event the divi-
sion of functions within the legal professionhad not yet assumed its
36. Id. ?? 2290, 2291.
37. See cases cited in id. ? 2290, at 542 n.1.

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 1978] A TTORNEY- CLIENT PRIVILEGE 1071

presentform.38Nonetheless,the distinctionis of functional,doctrinal,

and conceptualsignificancein understandingthese cases.
Functionally, a barrister-as a presenterof evidence and argu-
ment-ordinarily could learnthe facts abouta disputeonly upon being
"briefed." If he were to be deposed as a witness, in the usual case it
would necessarily impair the functioning of the adversarialsystem.
However,such would not necessarilybe the effectof receivingthe testi-
mony of an attorney,whose functionsincludednot only preparationof
litigation but also the giving of legal advice. Put differently,allowing
the privilege with regardto barristersbut not attorneysmight be the
equivalent of allowing the privilege with respect to communications
with a directconnectionto litigationbut not with respectto othermat-
ters revealedto a lawyer.
Doctrinally,the cases in this periodmore readilygive effectto the
privilegewhen it is invokedby "counsel"than when it is invokedby an
attorney or a scrivener. This may reflect a class distinctionbetween
barristersand other "lawyers"but it also seems to have somethingto
do with the peculiarfunctionof the barrister.
Conceptually,the distinction may explain why at one time the
privilegewas thoughtto belong to the lawyerratherthan the client. A
barristerwas considered not merely an "officer"of the court but a
memberof it, who could no more properlybe askedto reveal a client's
confidencesthan a modernjudge could be asked to disclose matters
heard in camera.39
Two of the early cases allowed a "counselor"to refuseto testify40
and two extended the privilegerespectivelyto an "attorney"and to a
"solicitor."4' In contrastwith these few cases42is a largernumberin
38. See 6 W. HOLDSWORTH, A HISTORYOF ENGLISHLAW,ch. viii (2d ed. 1937).
39. Cf. 8 J. WIGMORE, supra note 8, ? 2290. Wigmore explained the transformation of the
privilege from that of the lawyer to that of the client as a transformation of the underlying theory
from "objective" to "subjective." It seems at least equally plausible to attribute the change in the
"holder" of the privilege to the fact that the privilege came to extend to communications not only
to barristers, who stood as members of the court, but also to attorneys, who did not.
40. Walfron v. Ward, Style 449 (K.B. 1654) ("a Counsellor at the Bar was examined upon
his Oath to prove the death of Sir Thomas Conye. Whereupon Serjeant Maynard urged to have
him examined on ... some matters whereof he had been made privy as of Counsel in the cause.
But Roll Chief Justice answered, He is not bound to make answer for things which may disclose
the secrets of his Client's cause, and thereupon he was forborn to be examined."); Bulstrod v.
Letchmere, Freeman 5, 22 Eng. Rep. 1019 (Ch. 1676) ("the defendant, being a counsellor at law,
shall not be bound to answer concerning any writings which he hath seen, nor for any thing which
he knoweth in the cause as counsellor. . ... [B]ut a case was cited in Bridgman's time . . that
they being but scriveners should not have that privilege and the Lord Chancellor made it a doubt,
if a thing were revealed, under the condition of secrecy, to one that was not a barrister, whether or
not he would oblige him to answer.").
41. An "attorney" was allowed to refuse to testify concerning an agreement he had drawn
between a sheriff and under-sheriff, to prove it a corrupt agreement, "though he was not a Coun-
sellor," in Anon, Skinner 404 (K.B. 1694). This may be a case of a right not to incriminate one's
self, given the nature of the attorney's involvement. In The King v. Watkinson, 2 Strange 1122

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 1072 CALIFORNIALAWREVIEW [Vol. 66:1061

which the lawyer's testimony was allowed, some of which involve

"counsel." The case of Spark v. Middleton43is particularly illuminat-
ing as to why these cases held that the testimony was not privileged:
Mr. Aylet havingbeen Counselto the Defendant,desiredto be excused
to be swornon the GeneralOath,as Witnessfor the plaintiff... which
the Court after some dispute granted;and that he should only reveal
such things as he either knew before he was Counsel,or that came to
his knowledgesince by other persons,and the particularsto which he
was to be sworn were particularlyproposed,viz., What he knew con-
cerning a Will in question . . . and the Court only put the question,
Whetherhe knew of his own knowledge."
It is to be observed that the witness' objection in Spark v. Middleton is
to being sworn on the General Oath,45and the upshot is that the lawyer
is required to answer only certain questions. The questions may con-
cern matters "he knew before he was Counsel, or that came to his
knowledge since by other persons," and matters which "he knew of his
own knowledge." These terms sketch out boundaries of the privilege
that later came to take firmer form: The privilege applies only to matter
learned while counsel, not "before" or "since"; perhaps not to matter
learned from a source other than the client;46and not to matter within
counsel's "own knowledge," i.e., that which the lawyer observed as dis-
tinct from having been told by the client.47

(K.B. 1740), a prosecution for perjury in testimony at a chancery deposition, the defendant's solic-
itor was called to identify him as the deponent. "But he [ie., the solicitor] insisting on his privi-
lege, the Chief Justice would not compel him to be sworn: so the defendant was acquited [sic]."
The fact that the solicitor was in this case performing a role akin to that of advocate could explain
why his testimony was treated as privileged.
42. The only other cases in this period clearly sustaining an objection to the testimony of a
lawyer, in both instances an attorney, seem to have nothing to do with privilege. In Legard v.
Foot, Rep. temp. Finch 82, 23 Eng. Rep. 44 (Ch. 1673), an "attorney and solicitor" was made the
subject of a bill of discovery concerning his handling of the affairs of a person since deceased. He
objected that the matter was none of the plaintiffs business. Defendant said "that he faithfully
managed the said Causes for his Client, and ought not to make any Discovery thereof to the
Plaintiff, in Regard he was not a Party to any of the Causes, neither is the Plaintiff capable in any
Sort to call the Defendant to Account concerning the Same." The claim of privilege seems to have
been thrown in for good measure. In Harvey v. Clayton, 3 Keb. 139, 84 Eng. Rep. 640 (Ch. 1675),
noted in 2 Swanst. 221 (1818) as being in Nottingham's manuscript, discovery was denied from a
"scrivener" concerning the source of the funds provided under a mortgage, on the ground that
plaintiff had no good reason for the discovery ("it was safer for the plaintiff to be ignorant"), while
disclosure would be injurious to defendant ("it may be a ruin to the Defendant, in his trade, to
discover it; for no man thereafter will employ him").
43. 1 Keb. 505, 83 Eng. Rep. 1079 (K.B. 1664). See also The King v. Watkinson, 2 Strange
1122 (K.B. 1740).
44. 1 Keb. at 505, 83 Eng. Rep. at 1079.
45. An "oath to tell the truth, the whole truth, and nothing but the truth . . instead of the
'suppletory oath', a more restricted oath, to make just and true answers to such questions as shall
be asked by the court." 18 WORDSAND PHRASES421 (1956).
46. See Valliant v. Dodemead, 2 Atk. 523, 524, 21 Eng. Rep. 203 (Ch. 1743) (claim of privi-
lege must state "that counsel knew nothing but by the information of his client").
47. See Spencer v. Luttrell, I Nottingham's Chancery Cases, no. 150 (1673), 73 Seld. Soc'y

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 1978] A TTORNEY-CLIENTPRIVILEGE 1073

In other cases, testimonywas elicited from a witnesswho had act-

ed as a legal advisor or legal draftsman.48Most importantof these is
perhapsthe decision of the House of Lords in Radcliffev. Fursman.49
Althoughthe witnessin the case was referredto as "counsel"and hence
apparentlywas a barrister,the testimonysoughtrelatedto the givingof
legal advice ratherthan the representationof a client at trial."5The
argument against admissabilitywas that a client's communications
with counsel are "intendedfor private instructionand information
only, in order to direct parties in the conduct of their affairs. . . no
counselloror attorneycan be obliged, or ought to discoverany matter
which his client reveals to him . . . ."'5 The opposing argumentwas
that always offeredagainsta claim of privilege-that disclosurewould
yield the truth52--andthat argumentprevailed.
B. Annesley v. Anglesea
If the rule of attorney-clientprivilege was narrowlydefined and
tenuouslyestablishedbefore 1743,it was nearlywiped out by the case
of Annesley v. Anglesea,53decided that year. This case reads like a
source material for a Dickens novel-indeed, its facts make David
seem a pale contrivance. The legal setting is an action of
Copper-eld
110 (1957),also referredto in the reporter'snote in 2 Swanst.221 (1818)("counsel"requiredto
testifywhethera debt was satisfied).See also Stanhopev. Nott (no date),referredto in 2 Swanst.
221 (1818)("counsel"who sayshe does not havepossessionof deedsmustin discoveryproceeding
tell to whomhe gave them,"forotherwise,deedshavingbeen playedinto the handsof a counsel
might be suppressed");Lord Say and Seal's Case, 10 Mod. 40 (K.B. 1712)(attorneycalled to
prove that a deed was executedon some other date than it purportsto have been;the matter
"couldnot be calledthe Secretof his Client,thatit was a Thinghe mightcome to the Knowledge
of without his Client's acquainting him . . ."); Valliant v. Dodemead, 2 Atk. 523, 524, 21 Eng.
Rep. 203 (Ch. 1743)(attorneycalled to identifyan assignmentdraftedby him).
48. See, e.g., Rothwellv. King,I Notthingham'sChanceryCases,no. 68 (1673/74),73 Seld.
Soc'y32 (1957),also referredto in 2 Swanst.221 (1818)("thetrustof a counsellordothnot extend
to the suppressionof wills");Atterburyv. Hawkins,II Nottingham'sChanceryCases,no. 663, 79
SeldenSoc'y498 (1961)("ascriveneris not a civilconfessoras a lawyernor to be so treated").But
cf cases cited in note 42 supra.
49. 2 Bro. P.C. 514, 1 Eng. Rep. 1101(1730).
50. The suit was to uncoverdefendant'sfailureto pay amountsdue on an annuitywhich
plaintiffbelievedwas still payablebut whose termsdefendanthad refusedto disclose. Counsel
was asked to testify to a supposedlyhypotheticalcase statedto him by his client, involvingthe
questionwhetherthe client would have an obligationon those facts. The hypotheticalincluded
enoughdetailscorresponding to the alreadyprovenfactsto compelthe inferencethat,if the client
had indeedstatedsucha hypotheticalto counsel,it amountedto an admissionof a breachof trust
as alleged by the plaintiff.
51. 2 Bro. P.C. at 516, 517.
52. "No inconveniencecould possiblyariseto [the defendant]makingsuch discovery,but
payingthe bonds,upon its appearingthat they were reallydue." Id. at 517.
53. 17How. St. Trials 1139(1743). The captionof the caseis properlyCraigv.Anglesea,but
it has not usuallybeen so styledin subsequentcitationand will not be labelledsuch here. See 8
WIGMORE, supra note 8, ? 2291. Wigmore quotes extensively from Annesley v. Anglesea, but not
completely;his renditionis such,indeed,thatone does not learnthatthe case resultedin a refusal
to apply the privilege.

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1074 CALIFORNIALAWREVIEW [Vol. 66:1061

ejectmentin which the plaintiffclaimslands as the lessee of JamesAn-

nesley and the defendantclaims on the basis of a superiortitle. The
question of title dependedon whetherJames Annesley or the defend-
ant, Richard Earl of Anglesea, was the owner of the lands by inheri-
tance from Arthur,Baronof Altham. Althoughsuitsof ejectmentwere
conventionally brought to determinetitle, Annesley v. Anglesea was
framed as a trial of title in order to determinea more sinisterissue.
The defendantEarl concededlywas the brotherof Arthurof Altham
and his rightfulheir if Arthurhad died childless. But JamesAnnesley
claimed to be Arthur'slong lost son, born of Arthur'slawful wife but
then put out of his father'shouse by a jealous step-mother,left penni-
less to fend for himself in Dublin and London after his father'sdeath,
transportedto a remote colony under indenturefrom which he could
not escapefor some 13 years,prosecuted(unsuccessfully)for murderat
the instance of his scheminguncle, the defendant,and finally rescued
and enabled to asserthis rightfulclaims by the loyal testimonyof old
nurses and retainers.
The questionof attorney-clientprivilegearose in connectionwith
the matter of the murderprosecution. The plaintiff assertedthat the
defendantEarl knew of young Jamesand that he was Arthur'srightful
heir, that the defendantwantedJamesdone away with, by legal hang-
ing if possible, that the defendantrevealedthis knowledgeand inten-
tion to his attorney,that the defendantengagedthe attorneyto procure
the prosecutionof James for murder,well knowingthat the homicide
in question was an accident,and that all this was for the purpose of
puttingJamesout the way as claimantto the "30messuages,30 tofts, 50
cottages, 2 mills, 50 gardens, 800 acres of arable land, 300 acres of
meadow, 600 acres of pasture . . with the appurtenances" that were
the inheritancein question.54 Plaintiffoffered to prove the procure-
ment of the prosecutionthroughthe testimonyof John Giffard,who
was the attorneyinvolved.
In the voir dire of Giffardit appearedthat he had actedas attorney
for the defendantin variouslitigationand other mattersfrom time to
time over a period of twenty years priorto 1742,that in May of 1742
defendantsummonedGiffardand askedhim to set in motion a murder
prosecutionagainst James, and that in the course of the conversation
the defendant made statements indicating that he knew James to be
Arthur'sson (the immediateissue in the case) and that he would "give
?10,000 to have him hanged.""'55
It was necessary to address the ques-
tion of privilegeto determinewhetherany of this could be offeredin
evidence.
54. 17 How. St. Trials at 1141.
55. Id. at 1224-28.

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 1978] ATTORNEY-CLIENTPRIVILEGE 1075

Both sides acknowledgeda generalprincipleto the effectthat in-

formationcoming to the knowledgeof an attorneyin connectionwith
the representationof a client is not subjectto disclosure. Their dispute
focused on whether a more precise definition of the privilege would
include or exclude matter of the sort that Giffardhad learned. The
argumentsof the partiesand the reasoningof the courtwarrantcareful
analysis,both because they reveal how unformedthe rule of privilege
was at the time and because they anticipatesubstantiallyeverything
that has since been said on the subject.
The plaintiff'sposition rested on three arguments. The first was
that the informationto be elicited from the attorneyGiffardwas not
imparted to him in connection with the pending action.56 In other
words, the scope of the privilegeshould distinguishbetweenconfiden-
tial communications"directly"related to the pending case and com-
municationsonly "indirectly"related. Obviously,there would have to
be some connectionbetweenthe transactionin which the communica-
tion occurredand the pending case, or else the communicationwould
be excluded simply on groundsof irrelevance. The argument,there-
fore, must be that the communicationfrom the Earl to Giffardabout
the murderprosecutionwas not made in furtheranceof the Earl'spur-
pose of preparinghis defense of the immediatelypending suit. And
this in turnimpliesthatthe rule of privilegeshouldbe confinedto com-
municationsin furtheranceof pending litigation,or perhapsto antici-
pated litigation,and not extendto communicationswhose purposeis to
obtain advice or assistanceapartfrom pending litigation,for example
in businessdealingsand othertransactions."That suchwas indeedthe
argumentis suggestedby the fact that defendantarguedthat the privi-
lege should extendboth to obtainingadvice and retainingan advocate.
Plaintiffs second argumentfor disclosurewas that the information
to be elicitedfrom the attorneywas not essentialto the matterin which
the attorneywas consulted.5"This argumentwould conceivethe attor-
ney and client as having two sets of roles or capacitiesin which they
communicatewith each other. First,they are respectivelyattorneyand
client;second,they are acquaintancesor friends. The privilegeattaches
to such communicationsbetween the participantsas are germane to
their roles as attorneyand client, but not to communicationsoutside
these roles. This argumentwas then fortifiedby the furtherproposition
(consideredbelow) that plotting a baseless prosecutioncould not be
within the legitimateambit of the attorney-clientrelationship.But the
56. Id. at 1229, 1232.
57. Furthermore, since the communication was made in furtherance of the now terminated
murder prosecution, the argument necessarily implies that the duration of the privilege should not
extend beyond the pendency of the litigation to which the communication relates.
58. 17 How. St. Trials at 1230.

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 1076 CALIFORNIALAWREVIEW [Vol. 66:1061

argumenthas coherenceof its own. It simply statesthat communica-

tions are not privilegedmerelybecausethe participantshave a relation-
ship of lawyer and client; the communicationmust concern matters
pertinentto that relationship.
This limitationon the scope of the privilegeis echoed in modem
law. The standardformulationis that communicationbetweenpersons
standingin the relationof attorneyand client is privilegedonly if it is
made "in the course of'""that relationship.The difficultyin applying
this limitation in modem law arises from the fact that lawyerstoday
performsuch a wide rangeof servicesthat it is difficultto say when the
consultanthas stoppedbeing a lawyerand has becomea financialadvi-
sor, marriagecounselor,or whatever. However,the term "legal"ad-
vice can be used not only in contradistinctionto "business"advice,etc.,
but also in contradistinctionto matters that, because they involve
wrongful conduct, cannot be consideredproperlywithin the lawyer's
role, however broadlydefined.
This is apparentlywhat counsel in Annesley v. Anglesea had in
mind: A client's disclosureis not privilegedif it relatesto achievinga
purposeto which the lawyercould not lend his assistance.This is akin
to but differentfrom the propositionthat the privilegedoes not attach
to disclosureof a proposedcrime or wrongthat the clientintends. The
differencearises because some forms of conduct are prohibitedof an
attorneybut not of his client. For example, a client may be legally
innocent in seeking a criminalprosecutionso long as he acts in good
faith, while a lawyer might be held to the higher standardof acting
both in good faith and with reasonablecause,definedas groundsthat a
professionallycompetentlawyer would recognizeas sufficient. Simi-
larly, a lawyerhas a duty not to misleada court,while the correspond-
ing duty in clients is merely that they not be untruthful.60
The third argumentfor disclosurewas that the privilege should
not applyto a communicationrevealingthe client'sintentionto commit
a wrong:"a secret,which is contraryto the public good, such as a de-
sign to commit treason,murder,or perjury";61 "a crime";62or "a thing
that is 'malum in se,' against the common rules of moralityand hon-
59. See C. MCCORMICK, supra note 5, ?? 87-88.
60. In practice today, this limitation on the privilege would be difficult to apply. Yet at a
minimum it discourages communications to solicit a lawyer to perform unprofessional acts. The
bar in this country today apparently considers that such client explorations should be protected by
secrecy. See notes 17-22 and accompanying text supra. As a result, some lawyers' offices have
become a good place to take really dirty proposals for a review of their practical feasibility. This,
of course, can only harm the general reputation of the bar. The legal profession thus pays a heavy
price for the self-imposed rule that lawyers must suffer in silence any proposal that they compro-
mise their professional integrity.
61. 17 How. St. Trials at 1229.
62. Id. at 1231.

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 1978] A TTORNEY-CLIENTPRIVILEGE 1077

esty."'63
Any one of these characterizations would have fit some part of the
defendant Earl's conduct. Counsel for plaintiffpointed to the Earl's
proposalof a false prosecution,to his offerof ?10,000to procureJames'
hanging,and to his aim to "see a man kept out of his estateand honour
[i.e., title as baron of Altham],and all that is dear to him."64For pur-
poses of plaintiffs argument,there was no need to particularize,and
indeed the force of the argumentwas made strongerby lumping to-
getherall threewicked acts. But considerationof each of the proposed
acts separatelyrevealsthat they involve somewhatdifferentdegreesof
moral and legal obloquy.
The aim of seeing James dead can be characterizedeuphemisti-
cally as an intention to commit a crime involving serious personal
harm, and thus involves the elements of both criminalityand gross
wrongfulness. The plan to procurea false prosecutionof murderis a
means to that same end, hence is tinged with the same elements of
wrongfulness,and also involvescorruptionof the administrationofjus-
tice. Althoughcorruptionof justice is a lesserevil than procurementof
murder,it is a seriousoffenseand one that a lawyermight be regarded
as having a special obligationto intercept,especiallya lawyer who is
invited to be the instrumentof corruption.
The fraudulentaim underlyingthe Earl'sconduct-to secure the
estate for himself and, correlatively,to deprive James of his rightful
inheritance--coulditself be consideredsufficientto deprivethe Earl's
communicationof the protectionof secrecy,if the privilege does not
apply to plans of a client involvingfraudulentgain for himselfor inflic-
tion of injurythroughfraud on another.
Defendant'sgeneralformulationof the privilegewas, not surpris-
ingly, rather different. His basic thesis was that all communications
between client and attorneyare privileged,with some possible excep-
tions. The argumentrestedon three points:First, that the privilegeis
not merely that of the attorneyto maintain his honor by keeping a
client'ssecrets,but is a privilegeof the client againstdisclosureof those
secrets. Second,that the cases reliedon by the plaintiff,whereindisclo-
sure had been allowed,were distinguishablein that they fell withinrec-
ognized exceptionsto the privilege. And third, that the policy behind
the privilege requiredits applicationin the case at hand.
Counsel's argumentexpressedthe policy supportingthe position
that the privilege is the client's, as well as the attorney's,as convinc-
ingly as it has been stated since:
As to the client, the interestwhichhe has in the privilege,is very obvi-
63. Id. at 1232.
64. Id. at 1231.

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 1078 CALIFORNIALAWREVIEW [Vol. 66:1061

ous. No man can conductany of his affairswhich relateto mattersof

law, without employingand consultingwith an attorney;even if he is
capableof doing it in point of skill, the law will not let him; and if he
does not fully and candidly disclose every thing that is in his mind,
which he apprehendsmay be in the least relativeto the affairhe con-
sults his attorneyupon, it will be impossiblefor the attorneyproperlyto
serve him: thereforeto permit an attorney,wheneverhe thinks fit, to
betray that confidence . . . would be of the most dangerousconse-
quence, not only to the particularclient concerned,but to every other
man who is or may be a client.65
As for the scope of the privilege, defendant's counsel observed that
"the gentlemen on the other side have attempted to confine and cir-
cumscribe this privilege, and to make it extend only to matters dis-
closed by the client relative to some suit, then pending, in which the
attorney is concerned. But I apprehend that this would make the rule a
great deal too narrow ."66 Defendant argued that the confiden-
tial relationship "must ....
be presumed actually to subsist from the time he
first retained Mr. Giffard, till the time he discharged him; and whatever
my lord said to him during that space of time, touching his affairs, was
plainly said to him under confidence as his attorney."''67
The court allowed Giffard's testimony to be received.68 It sug-
gested that communications between client and attorney are ordinarily,
or one might say primafacie, privileged. Lord Chief Baron Bowes so
implied in stating that the question for decision was whether the cir-
cumstances "take the present case out of the general rule."69 But the
reason for deciding that the case was outside the general rule is not
wholly clear. Indeed, the Chief Baron expressed reluctance to fix
boundaries, stating that "the proper way will be to determine this and
every like case upon their own circumstances."'v His conclusion in this
case apparently rested on the fact that the communication from the
Earl as client to Giffard as attorney was not "necessary"to securing the
attorney's assistance:
If I employ an attorney,and entrustsecretsto him relativeto the suit,
that trust is not to be violated;but when I depart from that subject
wherein I employed him, he is no more than anotherman, especially

65. Id. at 1237.

66. Id.
67. Id.
68. The court resolvedthe questionwhetherthe privilegeis that of the attorneyor of the
clientby decidingthatthe client'sobjectionto disclosureis sufficientto raisethe issueof privilege.
AlthoughGiffardhimselfwas willingto testify,the courtdeclinedto treatthat as determinative
and insteadexaminedthe basis of the Earl'sobjection. See id. at 1242.
69. Id. at 1239.
70. Id. This familiarformularatherclearlysignifiesthatthe courthad no firmidea of what
the generalrule ought to be.

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1978] ATTORNEY-CLIENTPRIVILEGE 1079

whenthe causeI did employhim in is over.71

This formulationsuggeststhat the privilegeappliesto mattersdis-
closed in connectionwith pendingor proposedlitigation,but only if it
is germaneto the attorney'sfunctionin the litigation.
Even then, the privilegemight be defeatedif the mattercommuni-
cated is necessarilyin furtheranceof a wrongfuluse of litigation. In
otherwords,a communicationby a client to an attorneyis privilegedif
it is directlygermaneto securingassistancein pending or prospective
litigation,unlessthe litigationitself would amountto an abuseof proc-
ess, but the privilege ceases to apply after the matterin question has
been examinedat trial. While this is a very narrowformulationof the
privilege,it is certainlynot incoherent.
In concurringwith the ruling, Baron Mounteneyrested his deci-
sion partlyon the groundthat the communicationwas not "necessary"
to the matter in which the attorneywas retained,and partly on the
ground that the communicationrelated to a "highly criminal"act.72
Mounteney'streatmentof the term "necessary"is especiallyinteresting
becauseit resultsin a radicallynarrowdefinitionof the privilege. The
conceptof a "necessary"communicationbetweena client and his attor-
ney can be graspedonly by understandingthe attorney'srole in litiga-
tion as it was then performed.73 This role was essentiallythe same as
that of the solicitor in modern practice,as intermediarybetween the
client and the barrister. The attorney'sfunction was twofold: to pre-
pare and file the client's case, including drafting the pleadings and
makingappearances;and to make arrangementson behalf of the client
for assistance of counsel (i.e., a barrister)to present the case to the
court. Hence, Mounteneywould limit the privilegeto communications
"necessary"to the draftingof pleadingsand otherlitigationdocuments.
Thus he refersfirstto the attorney'srole:
[I]tis certainlyundoubtedlaw,thatattorniesoughtto keepinviolably
the secretsof theirclients,viz. Thatan increaseof legalbusiness,and
theinabilityof partiesto transactthatbusinessthemselves,madeit nec-
essaryforthemto employ(andas thelawproperlyexpressesit,ponere
in loco suo) otherpersonswho mighttransactthat businessfor them.74
He then refersto the need for secrecy:
[T]hisnecessityintroducedwith it the necessityof. . . secrecy. . in
orderto renderit safefor clientsto communicate
to theirattorniesall
proper instructions for carrying on of those causes.75

71. Id. at 1239-40. The Chief Baron went on to say, "Besides, as this was in part a wicked
secret, it ought not to have been concealed." Id. at 1240.
72. Id. at 1243.
73. See 6 W. HOLDSWORTH, supra note 38, ch. viii. See also 8 J. WIGMORE, supra note 8,
? 2294.
74. 17 How. St. Trials at 1241.
75. Id.

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 1080 CALIFORNIALAWREVIEW [Vol. 66:1061

And from this he deduces the scope of the privilege:

Whatevereither is, or by the party concernedcan naturallybe sup-
posed, necessaryto be communicatedto the attorney,in order to the
carrying on any suit or prosecution . . . [is protected]. On the other
hand, whateveris not, nor can possiblyby any man living be supposed
to be, necessaryfor that purpose[is not protected].76
In short, Mounteney's definition would limit the privilege to disclosures
that are reasonably relevant to the subject matter of pending or con-
templated litigation and which the attorney might legitimately use in
preparing the litigation.77

C. Fall and Rise of the Privilege

For 50 years after 1743 there appears to be no reported decision
clearly sustaininga claim of privilege,78 althoughthere are cases per-
mittingan attorneyto refuseto supplydocumentsin responseto a sub-
poena.79 In several cases attorneys were obliged to testify to facts
coming to their knowledgeby observationas distinctfrom mattersde-
scribed to them by clients."8 In a couple of other cases, the testimony
was received because the communication was deemed outside the scope
of instructionsnecessary for litigation. For example, in Cobden v.
Kendrick"8in 1791, plaintiff in an action on a contract disclosed to his
attorney after judgment that the contract was for a gambling debt and
hence unenforceable. In a subsequent suit for restitution of the amount
paid on the judgment, the opposite party was allowed to prove this
conversation. The court commented:
The differenceis whetherthe communicationswere made by the client

76. Id.
77. The third judge, Baron Dawson adopted the same approach as Mounteney. Id. at 1243-
44.
78. Indeed, in Maddox v. Maddox, I Ves. Sr. 61, 27 Eng. Rep. 892 (Ch. 1747), it was said:
Though an attorney or counsel concerned for one of the parties may, if he pleases, demur
to his being examined as a witness; yet if he consents, the court will not refuse the read-
ing his deposition. This objection has often been made; and though some particular
judges have doubted, it is now always overruled.
Id. at 63. But in Bishop of Winchester v. Fournier, 2 Ves. Sr. 445, 28 Eng. Rep. 284 (Ch. 1752),
there is a passing note that testimony of one of the witnesses should not have been received,
because "no counsel, attorney, or solicitor should betray the secrets of their clients, and might
demur to their interrogatories." Id. at 447. It is of course possible that as a matter of professional
courtesy attornies were in practice not called as witnesses except when no other proof was avail-
able.
79. See, e.g., Tex v. Dixon, 3 Burr. 1687 (K.B. 1765); Wright v. Mayer, 6 Ves. Jun. 280, 31
Eng. Rep. 1051 (Ch. 1801); Stratford v. Hogan, 2 Ball. & Beat. 164 (Ir. Ch. 1812). This apparently
was just a problem of form, because a subpoena addressed to the party would reach documents in
the possession of his attorney. Wright v. Mayer, 6 Ves. Jun. 280 (Ch. 1801). See also Copeland v.
Watts, I Starkie 95, 171 Eng. Rep. 412 (C.P. 1815).
80. Doe ex dem. Jupp v. Andrews, Cowp. 845 (1779) (attorney was subscribing witness to
land contract); Duffin v. Smith, Peake 108 (K.B. 1792) (attorney called to testify as to a bond he
drafted, to prove it was usurious); Sandford v. Remington, 2 Ves. Jun. 189 (Ch. 1793). See Spark
v. Middleton, I Keb. 505 (K.B. 1664), for precedent on this point.
81. 4 T.R. 431, 100 Eng. Rep. 1102 (K.B. 1791).

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 1978] ATTORNEY-CLIENTPRIVILEGE 1081

to hisattorneyin confidence
as instructions
forconducting
hiscause,or
a mere gratis dictum. The formerwas not the case here: on the con-
trary,the purposein view had been alreadyobtained;and whatwas
said by the clientwas in exultationto his attorneyfor havingbefore
deceivedhim as well as his adversary.82
At the turnof the century,the privilegebeganto farebetter. It was
sustainedin a case involvingthe very matterthatAnnesleyv.Anglesea
had left protected-a statementby the client to counsel of facts neces-
sary to prosecuteor defend a suit.83There are also four decisionssus-
taining the privilegeby Lord Ellenborough,who evidentlywas both a
strongadvocateof the privilegeand veryloose, or even incompetent,in
his legal analysis. He defiedprecedent84 to hold that an attorneycould
not testify as to facts learned of his own observation,even where the
matterin questionwas a transferin fraudof creditors. Similarlydubi-
ous was his holding that an attorneycould not be examined about a
message he delivered to the opposite party in a transaction.85Most
amazing of all, he initially held (only to reversehimself later) that an
attorneycould not be examinedas to whetherhe had receiveda discov-
ery notice served on him by an opposingparty.86
Two cases followed involving communicationsby a client to his
attorneyconcerningimminentlitigation.87These cases affirmthe im-
portantpoint that the privilegeapplieseven thoughthe suit may not yet
have been filed, but they still requirethat the communicationbe within
the rubric of "instruction"concerninga lawsuit. In yet anothercase
the court sustainedthe privilege as applied to a consultationfor the
purposeof draftinga document(not litigation)and a transactionalleg-
edly in fraud of creditors.88Other cases, however,continuedto hold

82. Id. at 432, 100 Eng. Rep. at 1103. See ABA COMM.ON PROFESSIONAL
ETHICSAND
PROFESSIONALRESPONSIBILITY,OPINIONS, No. 287 (1953). See also Wilson v. Rastall, 4 T.R. 753,
100 Eng. Rep. 1283 (K.B. 1792), which has a strong dictum by Buller, J., in support of the privi-
lege but nonetheless holds the attorney's testimony not privileged on the facts, apparently because
the communication was not from the client but from a third person.
83. Sloman v. Herne, 2 Esp. 695, 170 Eng. Rep. 499 (K.B. 1798). The attempt to elicit the
attorney's testimony had an arguable basis in the fact that the communication was not actually
from the party to the suit but from one "virtually the same" in interest.
84. Robson v. Kemp, 5 Esp. 52, 170 Eng. Rep. 735 (K.B. 1803); Brard v. Ackerman, 5 Esp.
119, 170 Eng. Rep. 758 (K.B. 1804). Cf cases cited in notes 43 and 47 supra. See also Bramwell v.
Lucas, 2 Barn. & Cress. 745, 107 Eng. Rep. 560 (K.B. 1824), discussed in note 90 infra.
85. Gainsford v. Grammar, 2 Camp. 9, 107 Eng. Rep. 516 (K.B. 1809).
86. Spenceley v. Schullenburgh, 7 East 357, 103 Eng. Rep. 138 (K.B.1806).
87. Hughes v. Biddulph, 4 Russ. 190, 38 Eng. Rep. 777 (Ch. 1827); Clark v. Clark, 1 M. &
Rob. 3, 174 Eng. Rep. 2 (K.B. 1830).
88. Cromack v. Heathcote, 2 Brad. & B. 4, 129 Eng. Rep. 857 (C.P. 1820) (Common Pleas).
Dallas, C.J., said:
The Plaintiff came to employ Smith as an attorney, though Smith happened to refuse the
employment . ... Is not this a consulting on professional business? One is staggered at
first being told that there are decided cases which seem at variance with first principles
the most clearly established; but the cases cited do not at all bear out the proposition

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1082 CALIFORNIALAWREVIEW [Vol. 66:1061

that the attorney'sevidencemay be received,for example,to provethe

identityof a client for whom he prepareda partnershipagreement,89 or
to prove that the client was skulkingin the attorney'soffice to avoid
arrestby his creditors.90
Perhapsthe most startlingof all the holdingsin this period,given
our modernconceptionof the privilege,is Prestonv. Carr.91'This was a
suit for specificperformancein which plaintiffdemandedproduction
from the defendantof letters writtento his solicitors. The letters set
forthfacts with a view to theirbeing presentedto counsel(i.e., a barris-
ter) for an opinion whether the contractwas binding in the circum-
stances. It was held that the letters had to be produced, although
counsel'sopinionin responseneed not be. In otherwordswhen a com-
municationto an attorneycan be provedby some meansotherthan the
attorney'sown testimony,the privilegedoes not apply. As the Chief
Baron said, "I cannot accede to the proposition . . that the privilege
of an attorneyis the privilegeof the client, to the extentthat the client
himself may . . . avoid discovering communications which have
passed between him and his solicitor."92
At firstimpressionit is astonishingthat a client'slettersto his so-
licitor relatingto imminentlitigationcould be obtainedby discovery.
What could more clearly be a "confidentialcommunication"?Upon
reflection,it becomesevidentthat the point of the court'sopinion must
be that the client cannot claim a privilege against yielding his own
knowledgeabout the mattersin controversysimply becausehe has re-
lated them to his solicitor. True, privilegeprecludesthe solicitorfrom
giving evidence of the knowledge thus disclosed.93But, reasons the
court, since defendanthimself would have to disgorgehis knowledge
on deposition,and since he would have to producepreexistingmemo-
randa of events such as a diary or correspondencewith others,it is no
ground for objectionthat his memorandaof the events were sent to
counsel.
This case bringsinto sharprelief the importanceof the disqualifi-
cation of parties from being witnesses in proceedingsat law at that
contendedfor, and I knowof no suchdistinctionas thatarisingfromthe attorneybeing
employedor not employedin the cause.
Id. at 5-6, 129Eng. Rep. at 858. Eitherthis missedthe pointthatthe consultationdid not involve
prospectivelitigation,or else it was a holdingthatthe privilegeappliedto "professionalbusiness"
otherthan litigation. If the latter,it was new law. See notes 48-49 supra.
89. Studdyv. Sanders,Dow. & Ry. 347,349 (K.B. 1823)(no confidentialcommunication but
"a fact . . cognizableto the witness");Williamsv. Mundie,Ry. & Mood. 34, 171(K.B. 1824).
90. Bramwellv. Lucas,2 B. & C. 745, 749, 107Eng.Rep. 560,561 (K.B. 1824)("Whetherthe
privilegeextendsto all communications betweenattorneyand clientor not, thereis no doubtthat
it is confinedto communications... .").
91. 1 Y. & J. 175, 148 Eng. Rep. 634 (Ex. Ch. 1826).
92. Id. at 178-79,148 Eng. Rep. at 635.
93. Comparethe rule as to subpoenaof documents,note 79 supra.

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 1978] A TTORNEY-CLIENTPRIVILEGE 1083

time.94Becausethe partycould not testify even if he were called as an

adverse witness, it would have been very useful to be able to call his
attorney. The attorney-clientprivilegeblocked that, at least so far as
directly relevant revelationswere concerned. And indeed the books
suggestthat this was a reasonfor the privilege-it preventedobtaining
a party'stestimonyindirectlywhen it could not be adduceddirectly.95
But in equity proceedings,throughthe discoveryprocess,could a party
be made to answerquestionsand producehis memorandato counsel,
for those surely include facts within the party'sknowledge? The an-
swer was that indeed they must be produced,96a rule renewedin Pres-
ton v. Carr.97
As of 1830,the attorney-clientprivilegein England stood in this
relativelydefinitebut very limited state. It then receiveda redefinition
in rhetoricthat greatlyenlargedits potentialscope. But this same rhet-
oric also submergedthe boundariesof the privilegeinto confusion,of
which there are still traces today. The author of this expansion was
Lord Brougham,98 in the two cases of Bolton v. Corporationof
Liverpool99 and Greenough v. Gaskell,'00 both decided in 1833.
Bolton was a Chancerybill of discoveryin aid of an action at law
then pending. The actionat law was by the corporationof Liverpoolto
recoverfrom certainmerchantsdues and tolls under various more or
less ancient privileges,rights, and liberties claimed by the city. The
essentialdisputeappearsto have concernedthe validityof these privi-
leges, rights, and liberties, and their interpretationas applied to the
94. See The King v. Inhabitants of Woburn, 10 East 395, 103 Eng. Rep. 825 (K.B. 1808);
Bull v. Loveland, 27 Mass. (10 Pick.) 9 (Mass. 1830); 2 J. WIGMORE, supra note 8, ?? 575 et. seq.
95. See the argument in Annesley v. Anglesea, 17 How. St. Tr. 1139, 1225 (1743).
96. This was the situation in Radcliff v. Fursman, 2 Brown 514, 1 Eng. Rep. 1101 (H.L.
1730). See also Richards v. Jackson, 18 Ves. Jun. 472, 34 Eng. Rep. 396 (Ch. 1812).
97. One obvious way to avoid this kind of disclosure was for the client to communicate his
recollection of the facts orally rather than in writing. The attorney could not be called, because of
the privilege, and the client if deposed could recall as he might wish. This might confront the
attorney with a situation where a client's testimony is at variance with an earlier account given the
attorney, which in turn raises a problem of revealing client perjury. See text accompanying note
25 supra. When the client has become a potential witness, and if he determines to tell a story
different from what he has given his attorney, the attorney has to infringe either on his duty of
confidentiality toward the client or his duty of candor toward the court.
98. Brougham, it may be recalled, had already made a considerable contribution to the legal
definition of the lawyer's role. While at the bar he had represented Queen Caroline in her dispu-
tation with George IV over their marital differences and obligations. To counter an effort by the
King to divorce Caroline on the ground of adultery, Brougham as her counsel announced readi-
ness to assert a defense, that of recrimination, which would raise questions of the legitimacy of
royal succession. And in doing so he stated what remains the basic credo of loyalty to client:
"Separating the duty of a patriot from that of an advocate, he must go on reckless of conse-
quences, though it should be his unhappy fate to involve his country in confusion." 2 Trial of
Queen Caroline 8 (1821). See also D. MELLINKOFF, THE CONSCIENCE OF A LAWYER188-89
(1973). A decade after this performance at the bar, Brougham found himself presiding in the
Court of Chancery.
99. 1 Myl. & K. 88, 39 Eng. Rep. 614 (Ch. 1833).
100. 1 Myl. & K. 98, 39 Eng. Rep. 618 (Ch. 1833).

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1084 CALIFORNIALAWREVIEW [Vol. 66:1061

merchantsfrom whom the city was attemptingto collect the exactions.

Prior to bringing the action at law, the city submittedto counsel a
numberof statementsof fact, accompaniedby queries,seekingan opin-
ion on these matters. The merchantsas plaintiffsin equity soughtdis-
covery of these submissions, and the defendant city invoked the
privilege. Greenoughv. Gaskellwas an actionto cancel a note executed
by the plaintiffon the groundthat the note was procuredby fraudulent
concealmentsof the defendantGaskell, who acted as solicitorfor one
Darwell. Plaintiff sought production from Gaskell of Darwell's
financialpapersand records,which were in Gaskell'spossession. Gas-
kell claimed that he had made or receivedthe papers and recordsas
Darwell's "confidentialsolicitor."
Together,Bofron and Greenoughencompassa broadrangeof com-
munications:from client to lawyer,and from lawyerto client;legal ad-
vice in a stricttechnicalsense and business-financialassistanceof the
sort renderedby an office lawyer;communicationsbetween barrister
and client and betweensolicitorand client;exchangesin contemplation
of litigationand ones not occasionedby the specificprospectof immi-
nent litigation;and communicationsas such and the transmissionof
tangible items, such as preexistingdocuments,from client to lawyer.
Broughamheld all of these mattersimmune from disclosure.To
reach that resulthe had to narrowthe scope of some cases,to construe
others squintingly,and simply to ignore many more. In particular,he
handledAnnesleyv.Angleseain about the only way possible,that is by
not citing it at all.'0• As a demonstrationof manipulatingprecedent,102
Brougham's performanceis unsurpassed. As a resume of existing
law, it bore practicallyno resemblanceto reality. But the opinionsleft
no doubt as to where Broughamwas going. Thus in Bolton he said:
It seemsplain,thatthe courseof justicemuststopif sucha right[of
discoveryof submissions to counsel]exists. No manwill dareto con-
sulta professional adviserwitha viewto his defenceor to theenforce-
mentof his rights."'3
And in Greenough:
If the privilegewereconfinedto communications
connectedwithsuits
begun,or intended,or expected,or apprehended,
no one couldsafely
adopt such precautionsas mighteventuallyrenderany proceedings
successful,or all proceedings
superflous."4
If these premises are taken as statement of the applicable principle,
and not merely one of the competing considerations involved, then the
privilegehas few if any limits. For the termsof Brougham'spremises
101. See text accompanying notes 68-77 supra.
102. See 1 Myl. & K. at 105-114, 39 Eng. Rep. at 621-25.
103. Id. at 94, 39 Eng. Rep. at 617.
104. Id. at 103, 39 Eng. Rep. at 621.

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 1978] ATTORNEY-CLIENTPRIVILEGE 1085

are not limited to matters either past or future, nor to consultations

necessaryto advice as distinctfrom ones incidentto advice,nor to "le-
gal" as distinct from business-financialmatters. They do not distin-
guish lawful from unlawful purposes. They wholly disconnect the
privilegefrom its point of origin-the fact that in courtthe client could
not speakfor himself and thereforehad to informsomeoneto speakfor
him.'05

D. Mediation of the Privilege

Brougham'sreformulationof the privilegerepresenteda substan-
tial departurefrom precedent,and was not fully acceptedas an author-
itative statementof the law in subsequentcases. 06 His justificationof
the privilegehas the great attractivenessof all one-sidedpropositions.
But it ignoresthe dilemma: the definitionof the privilegewill expressa
value choice betweenprotectionof privacyand discoveryof truthand
the choice of either involves the acceptanceof an evil--betrayal of
confidenceor suppressionof truth.
The case of Flight v. Robinson'07 reassertedthe philosophyof dis-
closurefrom the earlierdecisions. That case involveda bill for discov-
ery from the party of statementsmade to an attorneyin connection
with financialtransactionsthat resultedin insolvency. The court ob-
served the contradictionbetween the principleof confidentialityupon
which privilegeis based and the principleof truth-disclosurethat is the
raisond'etre of an equitablebill of discovery:
The arguments[forthe privilege]. .. have assumed,that concealment
of the truthwas,underthe plausiblenamesof protection or privilege,
an objectwhichit was particularly
desirableto secure,forgetting...
thatthe principleuponwhichthis Courthas alwaysacted,is to pro-
moteandcompelthedisclosureof thewholetruthrelevantto themat-
tersin question.108
After examining the precedents, the Master of the Rolls con-
cluded, "I am, therefore,not to orderthe Defendantsto producedocu-
ments which are properly to be considered as confidential
communicationsmade between solicitor and client, and which took
place, either in the progressof the suit, or with referenceto the suit
previously to its commencement."'09This formulationis obviously
105. See text accompanying note 65 supra.
106. See, e.g., Nias v. Northern & Eastern Railway, 3 Myl. & Craig 355, 40 Eng. Rep. 963
(Ch. 1838), in which the court took note of the fact that at least some of the earlier decisions were
quite different in tenor from Brougham's opinions. That case held that the privilege did not attach
to communications put to an attorney for advice long in advance of what later developed into a
lawsuit.
107. 8 Beav. 22, 50 Eng. Rep. 9 (Ch. 1844).
108. Id. at 35, 50 Eng. Rep. at 14.
109. Id. at 38, 50 Eng. Rep. at 15.

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 1086 CALIFORNIALAWREVIEW [Vol. 66:1061

narrowerthan Brougham'sGreenoughv. Gaskell,for it limits the privi-

lege to communicationsconcerninga pendingsuit or one immediately
in prospect-the boundariesthat had been suggestedin the older deci-
sions.
The court'sdiscussionalso revealsvery clearly the difficultyaris-
ing from the relationbetweenthe rule of attorney-clientprivilegeand
the obligationof an attorneyto avoid deceptionof a court by permit-
ting submissionof false or misleadingevidence. In reachingits deci-
sion, the court advertedto the differencebetween the rules governing
testimonialevidencein actionsat law and those applicablein equity."
"In this Court,the only case to be made out againstthe Defendantmay
rest within his own knowledge. The Plaintiffmay know, or be able to
prove nothing whichjustifiesmore than a mere suspicion,and yet the
Defendant must, on his oath, disclose the truth.""' And this in turn
would pose a dilemmafor the attorneyif the client disclosedsomething
other than the truth.'12
This dilemma seems to have become apparentonly at this rela-
tively late date-the mid-nineteenthcentury."3 It had to become
worse when partiesbecame competentas witnessesnot only in equity
but also at law. Two powerfulpremisesthen stood in unavoidablecon-
flict: "the principle . . . to promote and compel the disclosure of the
whole truth relevant to the matters in question,""I and that "the course
of justice must stop if such a right to confidentialityexists.""5
SubsequentEnglishcases struggledwith this conflict,as we still do
today. Their labors were the more difficultbecausethe judges gener-
ally tried somehow to reconcile the precedentsinstead of openly ac-
knowledging their contradictions. Only two of those cases are
addressedhere. Both deal with the serious problemsarising when it
appearsthat the client is embarkedon a crime or fraud.
In The Queen v. Cox and Railton,6"'the situation wasthis: B and C
as partnerspublisheda newspaperin which a libelous statementabout
P appeared.P broughtan actionand recovereda substantialjudgment.
110. See text accompanyingnotes 94-97 supra.
111. 8 Beav. at 35, 50 Eng. Rep. at 14.
112. See note 97 supra.
113. In Charltonv. Coombes,4 Giff. 377 (Ch. 1863),it was held that by reasonof privilegea
solicitorcould not be compelledto producelettersthat would show his clienthad perpetrateda
fraudon the court. The decisionrestson the broadlanguageof Greenoughv. Gaskell,I Myl. &
K. 98, 39 Eng. Rep. 618 (Ch. 1833),and thereforedoes not take adequateaccountof the limita-
tions on the privilegeignoredin thatdecision. The decisionalso seemsincompatiblewith Queen
v. Cox and Railton, 14 Q.B.D. 153 (1884),consideredin text accompanyingnotes 116-19infra.
114. Flight v. Robinson,8 Beav. 22, 35, 50 Eng. Rep. 9, 14 (Ch. 1844).
115. Bolton v. Corporationof Liverpool,1 Myl. & K. 88, 94, 39 Eng. Rep. 614, 617 (Ch.
1833).
116. 14 Q.B.D. 153 (1884).

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 1978] ATTORNEY-CLIENTPRIVILEGE 1087

Four days after the judgment, B and C consulted their solicitor, who
had prepared the original partnership deed, as to whether anything
could be done to put the partnership property out of reach of the judg-
ment. The solicitor advised them that only a sale to a bona fide pur-
chaser would do that. They asked whether a sale from one of them to
the other would suffice, and he replied that it would not because of the
partnership. In later proceedings to enforce the judgment, B and C
introduced the partnership deed, cancelled as of a date before the judg-
ment. A criminal prosecution followed. The solicitor was called to tes-
tify to the conversation in the consultation in order to show
circumstantially that the cancellation occurred after the judgment, and
that the transfer of the assets was therefore fraudulent.
The court denied application of the privilege. After an elaborate
review of the cases, going back to Annesley v. Anglesea, the opinion
concluded:
In orderthat the rule may applytheremustbe both professionalconfi-
dence and professionalemployment,but if the client has a criminal
object in view in his communicationswith his solicitor one of these
elements must necessarilybe absent. The client must either conspire
with the solicitoror deceive him. If his criminalobjectis avowed,the
client does not consult his advisorprofessionally,becauseit cannot be
the solicitor'sbusinessto furtherany criminalobject. If the client does
not avow his object he reposes no confidence,for the state of facts,
whichis the foundationof the supposedconfidence,does not exist. The
solicitor'sadvice is obtainedby a fraud."'7
The court was careful to distinguish between consultations for the pur-
pose of receiving guidance to commit a proposed crime and communi-
cations "after the commission of the crime for the legitimate purpose of
I
being defended."' The same analysis was later adopted for consulta-
tions in regard to a client's proposed civil fraud."19

E. Privilege in the New World

There appear to be no American cases on the attorney-client privi-
lege until the 1820's.120 In New England, the first reported case dealing

117. Id. at 168.

118. Id. at 175.
119. In re Postlethwaite, 35 Ch. D. 177 (1887).
120. Wigmore's presentation of the absorption of the rule into American law is breathtaking.
Having portrayed the development in England as an inexorable movement from Elizabethan be-
ginning to Victorian triumph, suppressing both the Georgian confinement and the Victorian reser-
vations, he then says: "In the United States this lengthy controversy seems never to have found
echoes." 8 J. WIGMORE, supra note 8, at 563. My research does not extend to unreported sources
in the colonies and early years of the states, but it would be surprising to find in them a strong
hospitality for the privilege. For example, 2 N.Y. REV. STAT.? 92 (1836) provides for the priest-
penitent privilege and ? 93 provides for a doctor-patient privilege, but there is no similar provision
for the attorney-client relationship. At any rate, not only the "echoes" but the original sounds of

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1088 CALIFORNIALAWREVIEW [Vol. 66:1061

with the problem is Dixon v. Parmelee.'"' It recognized Annesley v.

Anglesea as definitive authority in a long dictum expounding the con-
fined view of the privilege found in English doctrine at the time:
[T]hisprivilege,in all the cases which have fallen under my observa-
tion, has been strictlyconfinedto the periodin whichthe suit has been
pending,and to the partyof record,or in interest;and wherethe sub-
stanceof the communicationwas such that it becamenecessaryfor the
attorney to know it in order to manage the suit. . . . But this rule is not
to be extendedto all the subjectsor conversationswhich a client may
have with his attorney,nor to any periodbut that from his retainerto
the terminationof the suit. ...
Any matterof fact the knowledgeof whichthe attorneyhad, other
than from his client, the attorney is bound to disclose. . . . And where
an attorneyis retainedgenerally,and a conversationis upon a subject
which afterwardsgives riseto a suit,the attorneyis boundto discloseit,
there being no suit in contemplationwhen the conversationwas
had. . 122
The issue came up again shortly thereafter in Massachusetts in two
decisions'23 by Chief Judge Shaw which can be charitably described as
in tension with each other. Both involved attempts to prove through an
attorney that a debtor asked him to draft a conveyance of property to
another for the purpose of defrauding creditors. In the first case, the
court sustained the privilege, holding that the privilege is not confined
to "communications ... in relation to the prosecution or defence of a
suit at law, existing or contemplated," but also extends to "other cases,
when a person has occasion to avail himself of the superior knowledge
and skill of a professional man, in understanding his legal rights
'124 The second case, however, held that the privilege did not
exclude the attorney's testimony concerning the circumstances in which
he prepared the conveyance:
[W]e cannot perceive that the communicationswere made to [the
debtor]. . with the purposeof instructinghim in any cause,or engag-
ing him in the conductof any professionalbusiness,or of obtainingany
legal advice or opinion. If the disclosureof his views and purposes,in
the conveyanceof the propertyproposedto be drawn,was not, as stated
in some of the books, a meregratis dictum,the only purposeseems to
have been to satisfy [the attorney's]mind, and remove any scruplehe
might entertain . . . and to convince him ... it was not attended
with moral turpitude. It did satisfy him .... Here was no legal ad-

the controversy over the scope of the attorney-client privilege were imported into this country in
the earliest reports, as indicated in the text accompanying notes 121-29 infra.
121. 2 Vt. 185 (1829).
122. Id. at 188-89.
123. Foster v. Hall, 29 Mass. (12 Pick.) 89 (1831); Hatton v. Robinson, 31 Mass. (14 Pick.) 416
(1833).
124. Foster v. Hall, 29 Mass. (12 Pick.) 89, 97 (1831).

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1978] A TTORNEY-CLIENTPRIVILEGE 1089

as to theeffectandoperationof sucha
viceasked,no opinionrequested
conveyancein point of law, and none given .... [I]f therewas a pur-
pose . . . it was to .
satisfy [the attorney's] . . mind, upon a point of
fact,not for the informationof his own in pointof law ... . 25
Distinguishingthese cases is not easy. It hardly seems relevant
that in the firstcase a Massachusettsdebtorwas attemptingto swindle
creditorswith the aid of a Massachusettslawyer, while in the second
case a Rhode Island debtor used a Rhode Island lawyer to swindle
Massachusettscreditors. It may well be relevant,however,that in the
first case the testimonywas excludedat trial on the basis of the privi-
lege, while in the second it was admittedby the trial court and the
denial of privilegewas assertedas erroron appeal. But the court'sar-
ticulated basis for distinguishingthe two cases surely made the result
turn on an irrelevancy.This was that the circumstantialfacts given by
the client in the second case were aimed at assuringthe attorneythat
the transaction"was not attendedby moral turpitude,"whereasin the
earliercase the corruptpurposehad been unabashedlyrevealedby the
client. If that distinctionwere adopted,the privilegewould not apply
when the client is dishonestand the lawyer is innocent,'26but would
apply when the two are in league to swindle. This in effectmakes the
attorney-clientprivilegea special privilegeagainstself-implicationfor
lawyers.127
The New York cases of the same periodevidencea similarambiv-
alence towardthe privilege. In 1823the privilegewas affirmedin un-
qualified terms by Chancellor Kent, who cited no authority and
probably thought he needed none.128 Two decades later, Chancellor
Walworthwas faced with the classic problemof a fraudulentscheme,
in Bank of Utica v. Mersereau,129this time the procurement of a judg-
ment to defeat the claims of priorcreditors,and reluctantlyconcluded
that the privilegeapplied:
125. Hatton v. Robinson, 31 Mass. (14 Pick.) 416, 423-24 (1883).
126. Either because he is duped, as in Hatton v. Robinson, 31 Mass. (14 Pick.) 416 (1833), or
because, having been apprised of the client's fraudulent purpose as in Foster v. Hall, 29 Mass. (12
Pick.) 89 (1831), he declines to serve in carrying it out.
127. Massachusetts jurisprudence apparently has never attempted to reconcile these cases. As
often happens with contradictory precedents, they were happily cited together down through the
years, see, e.g., Brooks v. Holden, 175 Mass. 137, 141, 55 N.E. 802, 804 (1900), until they more or
less disappeared through supersession.
128. Wilson v. Troup, 2 Cow. 195 (1823):
[The lawyer] was employed . . to foreclose the mortgage, and he says he believes that
the business of conducting the foreclosure would not have been confined to him, if he
had not been a lawyer. It was professional business, and in respect to that particular
transaction, the parties appear to have stood in the relation of attorney and client, and
the communications in the letters [of the client], prior to the sale, were upon every rea-
sonable ground, entitled to the protection of that relation, as confidential communica-
tions.
Id. at 205.
129. 3 Barb. Ch. 528 (1848).

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1090 CALIFORNIALAWREVIEW [Vol. 66:1061

The seal of professionalconfidenceI believe has never been held to

cover a communicationmade to an attorneyto obtainprofessionalad-
vice or assistanceas to the commissionof a felony or othercrimewhich
was malum in se. . . . And. . . if the question had arisen for the first
time in this case, I shouldhave no hesitationin decidingthat the com-
munications . . . were not privileged; because they were made for the
purposeof getting his professionalassistancein the perpetrationof a
fraudupon their creditors. It is as contraryto the duty of an attorney,
or a counsellor,to aid his client, by professionalservices,in the perpe-
trationof a fraud,or in the violationof any law of the state, as it is to
aid him in the commission of a felony . . . . The practice, however,
appearsto have been otherwisefor morethan a centuryand a half;and
I do not feel authorizedto adopt a new rule on the subject.130
On the other hand, three years later Judge Selden held the privi-
lege did not protect testimony from an attorney offered to prove that
his client was an undisclosed principal and as such liable on an obliga-
tion in favor of plaintiff.'3 The court considered the privilege inappli-
cable when a lawyer is acting as a business agent for his client, which is
perhaps a proper distinction to draw. In commenting on the privilege,
the court relied strongly on Annesley v. Anglesea, and did not even cite
Walworth's discussion in Bank of Utica v. Mersereau:132
[T]herule is not foundedupon any broadviews of publicpolicy,grow-
ing out of the inconveniencesto society,of havingconfidentialcommu-
nications. . liable to be disclosed,becausethis reasoningwould apply
with equal force to ... many cases which have never been held to be
within the protectionof the rule.
The doctrine has a narrower foundation . ... Anciently ... par-
ties litigant . . . prosecuted or defended their own causes. . . . After-
wards . . . it became indispensable to have a body of men trained to
and skilledin the laws. . . and to havethe businessof courtstransacted
by these learned men. Suitors . . . were compelled to disclose to them
the facts . . . . If the facts thus communicated were liable to be ex-
torted from the attorneyor counsel, suitorswould hesitateto employ
them, to the great inconvenienceof the court. ...

It follows from this reasoning,that originallyno communications

were protectedexcept such as relatedto the managementof some suit
orjudicialproceedingin court,then actuallypending,or in the contem-
plation of the partiesat the time;and if the numerouscases in which a
wider scope has been given to the rule, should be held to have in some
degree enlarged its application, this departure from the true principle,
ought to be confined within as narrow limits as possible.133
130. Id. at 598.
131. Rochester City Bank v. Suydam, Sage & Co., 5 How. Pr. 254 (N.Y. Sup. Ct. 1851).
132. 3 Barb. Ch. 528 (1848).
133. 5 How. Pr. at 258-61.

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1978] A TTORNEY-CLIENTPRIVILEGE 1091

As one can see, "tradition,"both English and American, thus

clearly sustaineda privilegeconfinedto those communicationsthat are
related directlyto pending or anticipatedlitigation.

CONCLUSION

The rule of confidentialityis criticalto the modem lawyer'srole,

as advisor to clients probablyeven more than as advocate. It has al-
ways been recognizedthat the rule must have some limits, for at mini-
mum it is inadmissiblethat legal consultationbe a cover for thuggery
and theft. The difficultproblemis whereto drawthe boundaries-how
to define the kinds of secretsthat a lawyermay not keep. This inquiry
into the rule's originsprovideslittle guidancein that task, for it shows
that the problemhas been difficultfrom the beginning. Betterno light
from history,however,than false light.

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