*1 917, 82 S.Ct. 370 U.S. denied tiorari States, 497; United Rosen v. 8 L.Ed.2d Cir., 1961, F.2d 938. assigns er also The defendant permitted evidence Court
ror return. 1953 tax toas to be heard merely purpose this evidence was defendant intent show the tax, government of its defraud the accordingly. jury was instructed properly admitted. This evidence Cir., 1957, Frank, v. United States 355 U.S. certiorari denied F.2d 35; v. Mitchell L.Ed.2d Cir., 1954, States, F.2d United 912, 75 S.Ct. 348 U.S. certiorari denied 715. 99 L.Ed. errors the other have examined
assigned by defendant and find weight sufficient not of
quire comment. judgment
For the reasons stated the affirmed.
Affirmed. INC., BURNERS, Illinois
RADIANT Plaintiff-Appellee, corporation, ASSOCIATION, Peo- GAS
AMERICAN light Company, ples and Coke Gas Defendants-Appellants. al., et
No. 13960. Appeals States Court of
United Seventh Circuit.
June
3^5 Heating Air-Conditioning & Division of Corporation. Stewart-Warner Hiering, Keck, Robert C. James Val G. Weber, Jr., Ill., MacLeish, Chicago, A. Spray, Chicago, Ill., Underwood, Price & counsel, Bryant Mfg. Co., of for Division Corporation. of Carrier Sidney Neuman, Gregory Beggs, B. Chicago, Ill., Pendleton, Neuman, Seibold Williams, Chicago, Ill., counsel, & for of Heating Air-Conditioning, Janitrol & Corporation. Division of Midland-Ross Brown, Chicago, Ill., Templeton H. Chapman, Chicago, Ill., Brainerd Gal City, Lamb, Miles York Horace R. New lop, Gould, Pritchard, Chap Climenko & Stern, Seeley, Patrick W. Robert L. G. man, Pennington, Montgomery Sloan, & Friedlieh, O’Brien, Chicago, Ill., Mayer, Chicago, Ill., counsel, of for Mueller Chicago, Platt, Tierney, Spiess, & Brown Worthington Climatrol Division of Cor Leiby, Ill., LeBoeuf, York New Lamb & poration. counsel, City, Ass’n. American Gas of for Gaughan, James Spalding, J. John L. Aloysius Ill., Chicago, Fowle, Frank F. Chicago, Ill., Autogas for Co. Mich., Detroit, Power, Boone, Daniel F. Irving Zirbel, Milwaukee, Wis., W. Ill., Pope, Wander, Chicago, Herbert S. Porter, Quale, Zirbel, Porter & Milwau Kennedy, Shepard Ballard, Uriell, & kee, Wis., Williams, Rockford, Ill., Karl counsel, Fowle, Chicago, Ill., Delco for counsel, Permaglass for Division of A. Appliance Motors Division General Corporation. O. Smith ‘Corporation. Freeman, Lee Friedman, A. William J. Hanley, Stanley, F. Justin A. Robert Chicago, Neumark, Victor Levy, Richard F. Isham, Feldman, Chicago, Ill., A. Daniel l., Morgan, Edmund M. Vander Il bilt counsel, Chicago, Ill., Beale, Lincoln & University School, Nashville, Law Co., for Northern Illinois Gas Marvin Tenn., Philip Kurland, Chicago, Ill., B. and E. ‘Chandler D. Sheehan. counsel, Burners, for Radiant Inc. Whitman, Ross, H. Roland D. Clarence Arnold, Harris, Houston, Tom Paul E. McWhirter, Winger, William J. Bruce J. Tex., Arnold, Roylance Harris, & Hous- Chicago, Ill., Ross, McGowan, Hardies & ton, Tex., counsel, for American Patent counsel, O’Keefe, Chicago, Ill., of for Ass’n. Law Light Peoples Gas, Co., & Coke Natural Swiren, Chicago, Max Ill., amicus America, Pipeline of Texas-Illinois Gas curiie. Bjork, Co., Natural Gas and Eskil I. Chicago, Sokol, Arnstein, Bernard H. Leo McDowell, Remick Bernard H. Wittman ll., Chicago for Bar Ass’n. I Daniel Collins. Fitzpatrick, Peter Moss, C. Malcolm O’Shaughnessy, T. James B. William Henry Pitts, Chicago, Ill., L. for Illinois Schiff, Hart, Chicago, Ill., Dallstream, Bar State Ass’n. Dorschel, Ill., Hardin, Chicago, Waite & Jenner, Jr., Philip Albert E. Tone, W. counsel, for North Shore Gas Co. Sylvester Chicago, Ill., Smith, Jr., C. Roy E. Jones. Newark, J., President, N. American Bar Hickey, Moran, H. B. Edward James Ass’n, Poole, Wilmington, Del., William Chicago, Ill., Bell, Boyd, Lloyd, Haddad Member, Governors, Board of American Burns, Chicago, Ill., counsel, & Ass’n, counsel, Bar for American Bar Electric Co. General Ass’n. Reynolds, Foote, A. Thomas Edward L. Chicago, Ill., HASTINGS, Winston, Strawn, Judge, Before Smith & Chief Patterson, Chicago, Ill., DUFFY, counsel, SCHNACKENBERG, KNOCH,
3][Q
com
SWYGERT,
filed
third amended
Plaintiff
Cir-
CASTLE, KILEY and
naming
present de
plaint
Judges.
therein
cuit
The defend
action.
in this
fendants
Judge.
HASTINGS, Chief
Association
are American Gas
ants now
*3
acting
(AGA), membership
this
Inc.,
Burners,
commenced
Radiant
members;
July
its
9,
United
as a
association for
1957 in the
trade
on
action
gas
utilities;1
Chicago
Northern
seven
three
area
District Court
States
manufacturers;2
pipeline
appliance
man-
ais
two
Plaintiff
Illinois.
District of
gas
companies;
and
who
burners
and seven individuals
ufacturer of conversion
gas
employees of
are or
been officers or
furnaces.
utility defendants.
the three
charged
con
with
defendants
Plaintiff
gas appli-
utilities,
of
in violation
three
seven
spiracy
combination
and
Act,
pipeline
U.S.
anee
and two
manufacturers
Section
Sherman
controlling companies
mem-
purpose
are
named as defendants
of
C.A.
for
foreclosing plaintiff from
of defendant
bers
AGA.
the market and
recovery
sought
of
competition.
deny-
All
answers
defendants have filed
damages
injunctive relief.
and
treble
allegations
third
fhe material
complaint,
de-
11, 1959, motion of
on
amended
On March
fendants,
court, Honorable
the district
Commencing
spring
in the
of
Philip
presiding, dismissed
L.
ajj
Sullivan
discovery
parties proceeded
and
complaint
plaintiff’s
amended
second
pro-
participating
pretrial
haVe been
Plain-
of action.
failure
state
cause
continuing,
ceedings
presently
which
3, 1959, we
appealed.
tiff
On December
During
discovery pro-
course of the
judgment
Ra-
affirmed the
dismissal.
ceedings
pursuant
party,
the-
each
Light
Gas,
Burners,
Peoples
diant
Inc. v.
court,
made
direction of the
district
Co., Cir.,
196.
273 F.2d
& Coke
upon
opposing parties,
available
unprivileged
Subsequently,
Supreme
request,
in its.
Court
documents
certiorari,
granted plaintiff’s petition for
files.
January
Supreme Court
On
dispute
During discovery a
arose be-
and
court
the decision
this
reversed
concerning
parties
doc-
certain
tween the
court
the cause to the district
remanded
plaintiff
De-
examine.
uments
wished to
proceedings. Radiant Burn-
further
were within
fendants claimed
Peoples
ers,
Co.,
Inc. v.
Gas
364 U.S.
attorney-client privilege
scope of
and
365, 5
358.
L.Ed.2d
not discoverable.
prior deci-
is made to the
Qn
Reference
dispute
April
was.
this
_
Supreme
Court and this court
sions
presented to the district court
which
full
nature of the
for a
statement
controversies,
certain of the
hold-
solved
jng
of action and the issues on
cause
some
the documents to be within
case.
merits
and others
The court
not.
assigned
remand,
ruling
group
Upon
on
docu-
the cause was
reserved
one
Campbell,
presented
question
William J.
to Honorable
Chief ments which
proceed-
agents
Judge,
presided over the
reference to officers or
who
“with
ings giving
appeal.
rise to the instant
and how far down the line
Light
Compa-
Peoples
Heating
Air-Conditioning
and
Gas
Coke
and
Division
1.
Company
Corporation
ny,
Gas
Illinois
Northern
Stewart-Warner
General
Company.
Company.
Gas
North Shore
Electric
Pipeline
3.
Gas
of America
Natural
Manufacturing
Bryant
Company; Deleo
Texas-IUmors Natural Gas Co.
Appliance Division of General Motors
Heating
Bjork,
McDowell,
Corporation;
Ber-
Janitrol
and Air-
4. Eskil I.
Remick
Collins,
Conditioning,
Wittmann,
a division of
nard H.
Daniel E.
Midland-Ross
Roy
Climatrol,
Corporation:
Chandler,
Mueller
Marvin
D.
Division
E.
Sheehan and
Worthington Corporation; Permaglass
E.
Jones.
Corporation;
Division of A.
Smith
O.
may
attorney-
priv-
not claim
[the
of the chain of command
ilege
discovery
Subsequent-
privilege]
to bar
of documents.
extends.”
ly,
added to the
another
document
By
court,
permitted the
leave of
we
ruling
group
had been re-
to which the
filing
Amer-
briefs
curiae
as amici
served.
Association,
ican Bar
Bar
Illinois State
requested
on
briefs
district court
Association, Chicago Bar Association
parties
to state
issue and asked
and American
Law Association
Patent
their
views on how
support
of defend-
the contentions
corpora-
applicable to
became
ants-appellants
by Max
Swiren
tions.
support
plaintiff-
of the contentions of
*4
August 3, 1962,
On
the
district
able
appellee.
judge
chief
in
memorandum
an extended
public
widespread
Because of
interest
admittedly
opinion,
deci-
and
without
litigants
importance
generally
“
and the
***
precedent,
sional
that
stated
litigation
pending
in other
in the resolu-
having
study and
after much
considera-
consideration,
question
tion of the
under
personally
point
ques-
the
of
tion
come to
court,
sponte,
appeal
the
sua
ordered this
tioning
attorney-
application
the
by
sitting
heard
en
the court
banc.
privilege
corporate
I
to a
suggest
adopt
profession
now
outset,
At the
it should be noted that
corpora-
as the law
this
that a
of
case
question
by
par-
this
raised
was not
tion is not
make claim to the
entitled to
brought
by
ties but was
into focus
* *
Burners,
Radiant
action of the district court
itself.
Association,
Inc. v. American
Gas
appears from
that
in
ini-
the record
F.Supp. 771, 773.
stages
relating
proceedings
tial
by plain-
to examination of documents
Subsequently,
per-
district
court
right
counsel,
tiff’s
to claim the at-
filing
by
mitted the
of additional briefs
torney-client privilege by
corporate
parties
corpora-
all
“on the issue of a
by
questioned
plain-
defendants was not
right
attorney-client
tion’s
claim
by
tiff or
ques-
the district court. The
privilege.”
11, 1962,
On October
Chief
presented
tions then
to the court con-
Judge Campbell, in a
extended
second
scope
privilege.
cerned the
opinion,
memorandum
reaffirmed
prior holding
that
August
opinion
3, 1962,
In his
of
Chief
privilege may
corpo-
not be claimed
a
Judge Campbell
stated
commenda-
again
ration and
ordered the documents
myself
ble
“I
frankness:
and from their
question
plaintiff’s
delivered
attor-
herein,
all
briefs
counsel
have taken for
ney
inspection.
Burners,
Radiant
granted
presumed
or
Association,
Inc. v. American
Gas
privilege.
Indeed,
is entitled to the
F.Supp. 321.
previously
granted
noted
herein
district'eourt certified that his rul
this case.” 207
at 772.
ings
August
11, 1962,
of
3 and October
The rationale of the district court’s
controlling question
involved “a
of law holding
question
on the merits of the
ground
as to which there is substantial
not
available to cor-
opinion”
pur
for difference of
porations
historically per-
because it is
pose
permitting
interlocutory ap
may
only
sonal in nature
claimed
peal pursuant
1292(b)
to 28 U.S.C.A. §
persons. Further,
natural
that since
urged
appeal
that such
be granted.^ secrecy Confidentiality
v
dr
is essential to a
granted
defendants’
foi
any event,
claim of the
it is
appeal
1292(b), supra.
leave to
under §
possible
relationship
not
to maintain this
question
possibility
The broad
decision on
because
of disclosure to
interlocutory appeal
persons
necessarily
or are
whether the
who constitute
holding
entity.
corporate
district court erred in
related to the
Id. at
private
antitrust
action
773-775.
opinion
the client “to include communications
Finally,
of October
in his
litigation;
any
made, first, during
Judge Campbell,
con-
while
Chief
next,
litigation;
contemplation
judg- next,
being my
ceding
own considered
“it
looking
during
yet
controversy
complex
large
but not
that due
ment
any
litigation; and, lastly, in
consulta-
business
modern
nature of
legal
wholly irrespective
advice,
fact
tion for
corporations
transactions
controversy.”
litigation
priv-
or
even
entitled to
be
ilege,”
(McNaughton
Wigmore,
a Court
Evidence
“I
felt that
am
1961).5
authority to
importance
Rev.
sufficient
by judicial
ordina-
such a
create
policy
privilege has
been
without
He was convinced
tion.”
adequate
grounded
subjective
on
considerations
legisla-
precedent or
decisional
part
“In
the latter
1700’s.
since
indulge
authority
ex-
he should not
tive
promote
order to
of consultation
freedom
corporation.
to a
tension of
legal
apprehen-
by clients,
advisers
F.Supp. at 325.
legal
compelled
sion of
disclosure
removed;
prop-
the law
However,
quite
advisers must be
hence
the district court
except
ruling
prohibit
erly
had
such disclosure
on
took note that his
*5
jio
by
privilege
an the
is the modern
a
client’s consent.
to claim of
Such
Wigmore
theory.”
attorney
product,” Hick-
2291.
of his “work
§
Taylor, 329
67 S.Ct.
man v.
general acceptance
There seems to be
L.Ed. 451
and that
recog-
four
fundamental conditions
protect
privilege
exist to
valid claims
Wigmore
necessary by
nized as
“to the
against
discov-
unbridled
a
against
privilege
establishment of
the
a
“statutory
e.,
ery, i.
“trade secrets” and
of communications:
disclosure
protections.”
at 775-776.
“(1) The
must
communications
ingenuity and
deference to the
With
originate
they
in
a confidence
courage
by
judicial
displayed
district
the
be
will not
disclosed.
arriving
conclusions, we
at its
court
“(2) This element of confidential-
disagreement
the
find ourselves
ity
full
essential to the
holding
“that
broad
satisfactory
the
maintenance of
rela-
[attorney-
to make
the
entitled
claim to
parties.
between
tion
the
privilege.”
client]
“(3) The
one
relation must be
Wigmore
history
Dean
teaches that the
opinion
communi-
which
ty
the
attorney-client privilege finds its
ought
sedulously
to be
fostered.
reign
origin
I, “where
in the
of Elizabeth
“(4)
injury
The
inure
that would
already
privilege
appears
unques-
the
as
by
the relation
the disclosure of
It arose from “a consideration
tioned.”
greater
communications must be
the
oath and
attor-
the
the honor of the
for
gained
thereby
the
for
than
benefit
ney
apprehensions
than for
rather
the
litigation.
disposal
the correct
priv-
the
client.”
doctrine that
his
“Only if
four conditions are
these
ilege
attorney
that of
rather
privilege
recog-
present should
began
give way
to a
than
nized.
concept in the 1700’s. The “new
new
present
theory
necessity
provid-
“That
in most of
are
looked
recognized
plain
privileges
ing subjectively
the
enough;
the client’s
for
freedom
legal
apprehension
consulting
one or
absence
his
explain why
proposed
them
by
serves to
more
to assure this
adviser.
privileges
removing
by
have failed to ob-
the risk
certain
of disclosure
recognition
attorney
sometimes
de-
even at
the law.”
tain
the hands of
privilege
1800’s,
for them.
In the
By
manded
middle
recognized
substantially
communications between attor-
for
as that
became
Wigmore.
Hereinafter
as
5.
cited
attorney
example,
ney
client,
all four
and client
for the benefit of
only
open
person
present,
natural
condition
client.
—to
being
any dispute
the fourth.”
ruling
of the district court under
Wigmore
2285.
§
scrutiny
precedent.
here is without
We
nothing
priv-
improper
Finally,
find
on the
in the action of the
Wigmore
raising
ilege itself,
district
question.
summation
court
makes a
repre- However,
general principle so as to
it is obvious to us
“of the
that no liti-
gant
following
thought
in the
all its essentials”
heretofore
sent
there was
enough
merit
sequence:
proposition
in the
to war-
challenge
rant a
availability
any
legal
“(1)
kind
advice of
Where
corporation.
to a
That
legal
sought
(2)
professional
from a
recognized
has been
as available
such, (3)
capacity
as
adviser
corporations
century
for more than a
relating
purpose,
to that
communications
open
is not
question.
to serious
(5)
(4)
in confidence
made
permanently
point
long
instance
Defendants
are at his
to a
line of
English
protected (7)
himself
disclosure
American and
from
cases in which the
legal adviser,
(8) except
recog-
has been
Wigmore
applicable
nized
protection
corporations.7
as
be waived.”
We
only
need
2292.6
comment
on a few of them.
application of this
turn now to the
In United States v. Louisville & Nash-
recognized
deep
R.,
rooted
ville R.
236 U.S.
—
existing
century
between
more than a
Supreme
L.Ed.
Court
to the collection
Corp.
is made
America,
Reference
D.C.D.Del.,
v. Radio
*6
scholarly
1
in footnote
F.Supp.
cited
(1954)
materials
;
121
792
United States v.
2292.
Cleveland,
Insurance Board of
D.C.N.D.
Ohio,
(CCH)
67,873
1954 Trade Cas.
¶
Louis
(1954) ;
States v.
United
Federal cases:
Willard C. Beach Air Brush Co.
318, 336,
R.,R.
236 U.S.
ville & Nashville
Corp., D.C.D.N.J.,
v. General Motors
118
(1915);
363,
598
F.Supp.
59 L.Ed.
(1953), aff’d,
35 S.Ct.
Cir.,
242
3
214 F.
Cir.,
States,
232
8
664;
v.
Schwimmer
United
Corp.
2d
Leonia Amusement
v.
denied,
(1956),
352 U.S.
cert.
F.2d 855
Inc., D.C.S.D.N.Y.,
Loew’s
13 F.R.D.
52;
48,
833,
Cole v.
(1952);
S.Ct.
1 L.Ed.2d
Shawmut,
77
438
Inc. v. American
Cir.,
Company,
Hughes
F.2d
10
250
Tool
Corp., D.C.D.Mass.,
Viscose
12 F.R.D.
denied,
924,
Foxd
cert.
(1952);
930-931
488
Stockard S. S. Co. v. Aetna
927,
Hughes
Co.,
75
Co.,
348 U.S.
S.Ct.
D.C.S.D.N.Y.,
v.
Tool
Ins.
16 Fed.Rules.
726; Belanger
339,
Box
34.42,
v. Alton
(1952);
99 L.Ed.
Serv.
Case 2
A. B. Dick.
Cir.,
87,
Co.,
F.2d
93-94
Marr, D.C.S.D.N.Y.,
7
180
F.Supp. 83,
Board
Co. v.
95
(1950) ;
(1950), appeal
Aeronautics Board v. Air
dismissed,
Civil
Cir.,
102
2
197
F.Supp.
Ass’n, D.C.D.C.,
Transport
498,
denied,
201
878,
F.2d
cert.
344 73
(1961) ;
680;
v. Aluminum
States
318
Company
United
97 L.Ed.
United States
D.C.N.D.N.Y.,
America,
Machinery
193
Corporation,
v. United Shoe
(1960) ;
F.Supp.
D.C.D.Mass.,
F.Supp.
Wonneman v. Strat
(1950);
251
89
357
Co., D.C.S.D.N.Y.,
Phillips
Hickey, D.C.S.D.N.Y.,
ford Securities
23 F.R.
v.
14 Fed.
;
(1959)
36a.27,
(1950);
International Minerals &
D. 281
Rules Serv.
Case 1
In
Co.,
Corp. Golding-Keene
Co.,
v.
D.
re
Chemicals
Associated Gas & Electric
D.C.
F.Supp.
(1958) ;
C.W.D.N.Y.,
S.D.N.Y.,
F.Supp.
(1944);
162
137
59
743
E. W.
Company v. Union Carbide &
Co.,
Ellis-Foster
Bliss Co. v. Cold Metal Process
Corp., D.C.D.N.J.,
F.Supp.
D.C.N.D., Ohio,
(1940);
159
Carbon
Plaintiff
that
the benefits
through
society
application
“Nevertheless,
n outweighed by
superior
exception
general
mains
an
to the
duty
There is
of full
to
benefits
disclosure.
disclose. Its benefits are all
authority
speculative;
support of this
indirect and
eminent
its obstruc-
Morgan
plain
Foreword
tion is
and
view. Professor
concrete.
Even
point.
argument
to
to the Model Code makes this
answers Bentham’s
con-
McCormick,
cede
cites
Handbook on
that the
Plaintiff
is well found-
(1954)
Radin,
application
ed in
The Privi-
its
Evidence
lege
to a certain
proportion
pre-
be-
of Confidential Communication
cases. It is worth
serving
Lawyer
Client,
general
tween
487,
16 Calif.L.Rev.
the sake of a
policy,
same
These
but it
effect.
ob-
nonetheless an
arguments urged
investigation
are in
against recognition
stacle to the
essence forceful
ought
strictly
It
of the
truth.
to be
con-
argues:
any
fined
possible
within
Plaintiff
form.
narrowest
universally accepted
logic
“It
limits
would seem
consistent
with the
principle.” Wigmore
proposition
its
that
dubious value of the
554, citing
attorney-client privilege
Hall,
requires
at
con-
Foster v.
expansion.
Pick.
traction rather than
Most
Mass.
(“The
agree
having
privilege,
of the commentators
the doc-
rule
that
tendency
applied
prevent
to
trine even
to
individuals
full disclo-
ought
be,
truth,
sure
be abolished and would
but
to
con-
cry
lawyers
strictly”).
hue
strued
would raise
denigration
prime
about such
of their
The district court has asked us to
symbol.”
status
spell
questions
out the answers to
relat-
urge
thought
Plaintiff follows
confidentiality
in the
privilege be
rather
contracted
chain of command. We are asked “to
expanded
corporations.
to include
than
apply
simple
the elements of
common
regard
the resolution
We do
question
personal privilege
complex
law
cor-
requiring
ex-
before us as
porate
respect,
transactions.” With due
privilege.
pansion
think it
We
we
decline
the invitation to de-
already
been for
is in existence and has
cide,
vacuum,
in a
to be
limitations
years.
cannot
more than a hundred
imposed
privi-
in the
agree
proper remedy
annihila-
lege by
corporation.
If there
abe
change
If,
hand,
on the
tion.
“guide-lines”
place
opinion
for a
at our
policy
liberal-
social
dictated modern
level,
court
this is not it.
discovery procedures is in
or-
ization
However,
things
some
seem well
der,
cure
seem lie in the
would
attorneys’ work-product
settled. The
of accommodation the
area
Taylor,
rule announced in Hickman
practice.
modern business
Yale L.J. 953 Judge KILEY, (concurring). Circuit that the There no reason to believe I concur. confidentiality properly required cannot Originally, rela- maintained within tionship, person, the client natural was a readily family. just dis- It can as spouse patient, penitent, as were sipated. all have These matters will pertinent relationships in the other where case-by-case No on a basis. be resolved recognized. But, has been enough them in decide one wise undoubtedly client, person as the natural advance. sought advice than about other matters private personal affairs, are so which Certainly, privilege would intimately involved in other relation- L be available to allow a never ships. papers into documents funnel its very The fact of the lawyers of its for custodial hands the purposes lationship among connotes, mun- thereby disclosure. avoid legal things, dane advice about economic Likewise, that the settled seems well early relationship The affairs. between professional relationship requisite is not the individual torney and his businessman at- business when the client seeks established personal sense that a legal personal advice, opposed to or person gen- natural was the but assistanc e. erally the sense that the intimate balancing goals competing private penitent, patient affairs or and unobstructed search free spouse personal. right neces- and absolute truth The does not itself have sity infor- for confidential disclosure give attributes which rise to the need of attorney its the client to mation advice, personal intimate area of legal sought thereby, gain advice privacy, person which natural they realize are not deal- will courts confessor, spouse. turns to doctor or privilege. limita- blanket awith does, however, have an economic nature surrounding sought any information tion legal because of which it needs advice for each document be determined must way early in the same that the individual case-by-case separately considered on a needed, contemporary and his counter- appli- If on the new limitations basis. part needs, that advice. are to be estab- cation through corporation, the deci- as well as come the individ- lished seeking ual, may advice, process. have de- Trial courts neces- sional through- sity through representa- veloped communicate the law in this fashion argument, part Upon completion Cir- of oral consideration decision of appeal. Judge no took SCHNACKENBERG cuit *11 conduct about its secrets tives cir- And in these necessitous
business. why good cumstances, exists no reason justice impartial administration pro- corporation the not afford the appropriate tection
cases. agree light, conclu- this attorney- Judge Hastings that the
sion of is avail- broad sense corporations. able to Association, a cor- the defendant Since reason,
poration, no is a there is point, hold- this to exclude it from
at may secrets court. public should be shielded from
which may that, gaze. hand, On the Evidence, narrowly confined, Wigmore, (McNaughton 1961), privi- rev. lege logically docu- cannot be extended by its entrusted to the Association
ments corporations turn, which, in member attorney. by it to its
entrusted GORNICK, Appellant,
James America,
UNITED STATES of Appellee.
No. 7301. Appeals
United States Court of Tenth Circuit.
July notes law interesting Court does feel a not It is reviews.9 to note Agent’s Reports Attorney-Client (1962) ; (1963); and the 61 Mich.L.Rev. 603 76 Privilege, (1954); (1963); 21 U.Chi.L.Rev. 752 Harv.L.Rev. 655 49 Va.L.Rev. Privilege Simon, Attorney-Client (1963); (1963); as 610 37 Tul.L.Rev. 332 applied Corporations, (1963); to 65 Yale L.J. 953 111 U.Pa.L.Rev. 679 51 Geo. ; (1983); College A Critical Examination of Some In L.J. 399 4 Boston Evidentiary Symposium; Privileges: A dustrial and Commercial L.Rev. 416 Lawyer-Client Privilege: Ap- (1963) ; (1963). The plication Its Ark.L.Rev. 96 17 Con Corporations, (1963). to The Role of tra: 51 Ill.B.J. 666 Ethics, Curtailment, and Its Possible 56 Miller, Challenges See to the At Nw.U.L.Rev. 235 torney-Client Privilege, 49 VaL.Rev. 262 (1962); Privilege (1963); Haight, Keeping 9. 57 Nw.U.L.Rev. 596 AlaL. 15 the (1962); Corporation, 255 Rev. 37 N.Y.U.L.Rev. 955 Inside 18 Bus.Law. 551 the expres- giving to our atten- is that the were all one those called scholars but disagreed with as sion to tion thus far have their view of law holding district court found broad it. agree- general There been this case. privilege Wigmore points out that the purpose privilege that the ment many has been embodied jurisdictions, statutes jus- administration of is to facilitate an ex- them collects encouraging disclosure full tice Wigmore 2292, fn. tended footnote. 8 attorney. Since the client to defined at 555-560. The encourages disclosure, rather generally or the terms of the “client” destroy privilege they would than to made “party.” Reference is further examine each document the courts have having of court effect in rules the same applicability of the to determine the the force and effect of law. underlying light ra- privilege in of its argues privi Further, a Plaintiff to be there seems tionale. lege developed no the utilization before there can common conclusion that entity and analogy proper as a business drawn origin per against it finds its in terms There self-incrimination. immunity. note this is sonal We believe of the failure take some criticism underlying family corpora- misconception principle small, or one-man privilege. is that Our conclusion tion. with of a “client” is that published Law The American Institute regard non-corporate or cor out in 1942.10 its Model Code of Evidence designed client, porate character of “As used in Rules Rule 209 states: workings justice. facilitate (a) person or to corporation ‘client’ means a that, di- or other association argued corpo It is that because through repre- rectly or authorized protection rations have been denied the sentative, lawyer or law- consults a against of the constitutional yer’s representative, purpose of self-incrimination, United States v. legal retaining securing lawyer White, professional service from him in his im L.Ed. of their because * * capacity analogy they personal character, that protection of the The Uniform Rules of Evidence con- are to be denied the lawyer- attorney-client privilege. shall not tain the same definition of the Code, attempt scholarly privilege found client defining in the Model to reconcile the diver including “corpo- gence proposition. on this “client” views Supreme White, or other Rule ration association.” Court was moved 26(3).11 opinion, In his its conclusion because it found the October con Judge privilege against Campbell Chief takes notice self-incrim stitutional essentially personal the Model Rules Code the Uniform ination to be char acter, only “applying concludes “that both works were individ natural intended set forth at what law uals.” Id. S.Ct. at 1251. necessarily is,” view, previously stated, law as we what the our agreement expressed attorney-client privilege and purpose. that the derives regard rights at 323. Our view of a from