A lower case!

Today in the class of Deal Skills, one classmate raised a question which I totally cannot understand.
After class, I asked him what the question is.
After some more communications, he got to know what I mean and told me that a lower case means the first letter of an English word is not capitalized!
Oh my god, such is the case! I think no single Chinese could understand such an expression of words.
Thanks a lot to the classmate, David.

And one more lessens for me is that today I heard the professor particularly said that trademark refers only to the tangible goods, while service mark refers to intangible things. This made me confused.
After class I went to an American classmate for it. I asked him that in the English world, may "trademark" cover tangible goods and intangible goods? He said he think so but he also showed some hesitation. He said double confirmation would not hurt and let's go to the professor for confirmation. So we went to the professor together. Then the professor told us that trademark covers both tangible goods and intangibles!

Nonrecourse Debt, Cross Default

A nonrecourse debt is a type of loan secured by collateral, which is usually property. If the borrower defaults, the issuer can seize the collateral but cannot seek out the borrower for any further compensation, even if the collateral does not cover the full value of the defaulted amount.

Cross default is a provision in a bond indenture or loan agreement that puts a borrower in default if the borrower defaults on another obligation. For instance, a cross-default clause in a loan agreement may say that a person automatically defaults on his car loan if he defaults on his mortgage.

What Does Heads of Damages Mean?

A head of damage is a category of loss for which compensation can be legally claimed.

Heads of damages are non-pecuniary or pecuniary.

Non-pecuniary damages are often thought of as “general damages” for pain and suffering. They are most often valued by what courts have awarded to similar people with similar injuries. Experienced injury lawyers have access to electronic research databases with cases where people have gone to court and where judges have awarded compensation to them for their injuries, harms, and losses.  This research is a useful way to determine what value could be assigned to your injuries if you were to go to trial.

Pecuniary damages refer to compensation that can be calculated in monetary terms. Some of these heads of damages include past loss of income, future loss of income, future loss of income earning capacity, out of pocket expenses, cost of future care, and past and future loss of housekeeping.

If you are seriously injured, you should work with an experienced injury lawyer early in your claim to maximize the amount of compensation you can receive under all heads of damages.  Your experienced injury lawyer will hire experts to help maximize your recovery under all appropriate heads of damages.

Prosecutor's duty to disclose exculpatory evidence

Defendant was convicted on the testimony of a single eyewitness. after trial defendant obtained police files containing statement of the eyewitness that contradicted his trial testimony and were favorable to Defendant. Since Defendant was convicted solely on the eyewitness's testimony, it it likely the result of the case would have been different had the statements been disclosed. Therefore, the failure to disclose violated Brady, and the conviction must be overturned and a new trial granted. [Smith v. Cain, 132 S. Ct. 627 (2012)]

The exception is: Reports on sexually abused minors
A defendant may not automatically obtain investigative reports made by a state agency in charge of investigating sexually abused minor because of the confidentiality of the minor's records. Such reports can be obtained only if they are favorable to the defendant and are material to guilt or punishment.

Dismissal with prejudice, and without prejudice

A dismissal with prejudice is dismissal of a case on merits after adjudication.The plaintiff is barred from bringing an action on the same claim. Dismissal with prejudice is a final judgment and the case becomes res judicata on the claims that were or could have been brought in it.

In the formal legal world a court case that is dismissed with prejudice means that it is dismissed permanently. A case dismissed with prejudice is over and done with, once and for all, and can't be brought back to court. A case dismissed without prejudice means the opposite. It's not dismissed forever.

Sheehan v. St. Paul & Duluth Ry. Co.

Posted on September 26, 2013


Facts

Sheen (Plaintiff) was walking (trespassing) on defendant’s railroad and his foot got caught.  P was not able to jar it loose, and a passing train (Defendant) came by. The train drove over the P’s foot.

–  The plaintiff was neither a passenger nor one in a public place, in which public were licensed to travel, he was an intruder on the tracks of the defendant.

Issue

Does a railway company owe a duty to a trespasser on its tracks?

Holding

NO.


Rule

When the act is unauthorized (trespass) and the temerity, the risk, and all positive duty of care for his, rests with the trespasser.

Court reasoning

–          A trespasser is not an outlaw, and if wantonly injured in the operation of the railroad, the company is answerable in damages.

–          Courts do not impose a duty of a train company to foresee every possible situation where danger may arise. Has a right, and is not bound to foresee trespasser on their tracks.

–          No constructive notice (public place, per se) which to base the obligation of constant lookout for his presence there, and no actual notice up to the moment, the company sees them there.

–          This excludes all inquiries in respect to the character of the roadbed, locomotive, brakes, train, drivers (etc…) because no Breach of positive duty is involved.


Notes

–          A land owner does not owe a duty of care to a trespasser of whom the landowner has no actual or constructive notice.

TRESPASSERS, INVITEES, AND LICENSEES ON PRIVATE PROPERTY

By: Christopher Reinhart

SUMMARY

A possessor of land owes each person who enters his land a certain duty of care based on the person's status. The legal significance is that a possessor of land has the duty to an invitee to inspect the premises for hidden defects and to repair or erect safeguards, if necessary, to make the premises reasonably safe. He has no duty to inspect or to repair or erect safeguards for licensees. But he is liable if he knows of a condition, realizes it involves unreasonable risk, has reason to believe the licensee will not discover it, and he permits the licensee to enter or remain without warning or making the condition reasonably safe.

Generally, an owner owes trespassers no duty of care because he has no reason to expect them to be on his property. Therefore, he does not have to warn or protect them from potentially harmful conditions on the property.

However, an exception applies if a property owner knows, or has reason to anticipate, that children will trespass on his land. In this case, a special duty arises and the owner must take steps to protect children from any of the property's dangerous conditions. This can be done by taking reasonable steps to eliminate the condition or by otherwise keeping children away from it.

Statutes also provide criminal penalties and fines for trespassing in certain circumstances.

DUTY OWED TO TRESPASSER

In Connecticut, the following rules apply to a possessor of land with respect to a trespasser.

1. He may not intentionally harm the trespasser or lay a trap for him.

2. The trespasser is entitled to due care after his presence is actually known.

3. There is no duty owed regarding the condition of the premises.

4. The possessor of land has no duty to trespassers if he is engaged in a dangerous activity until the person's presence is know.

5. The possessor of land has no duty to warn trespassers of dangerous hidden conditions (Conn. Law of Torts, § 47).

Duty Owed to Trespassing Children

Connecticut's appellate courts have adopted the Restatement (Second) of Torts rule regarding the duty of a property owner to trespassing children (Duggan v. Esposito, 178 Conn. 156 (1979), Neal v. Shiels, Inc., 166 Conn. 3 (1974), Greene v. DiFazio, 148 Conn. 419 (1961), Wolfe v. Rehbein, 123 Conn. 110 (1937), Yeske v. Avon Old Farms School, Inc., 1 Conn. App. 195 (1984)).

Under this rule, if an owner knows or has reason to know that children will be on his property, he has the duty to protect them from injury by either fixing the harmful condition or ensuring that the children will not have access to that part of the property.

The rule states that a possessor of land is liable for harm to trespassing children caused by an artificial condition on the land if (1) the possessor knows or has reason to know that children are likely to trespass in that place, (2) the condition is one the possessor knows or has reason to know and should realize will involve an unreasonable risk of death or serious bodily harm to children, (3) the children because of their youth do not discover the condition or realize the risk, (4) the utility of maintaining the condition and the burden of eliminating the danger are slight compared with the risk to children involved, and (5) the possessor fails to exercise reasonable care to eliminate the danger or otherwise protect children (Restatement (Second), 2 Torts 339).

Trespass Crimes and Infractions

A person commits first degree criminal trespass when (1) he enters or remains in a building or any other premises after the owner or an authorized person personally communicates an order to leave or not enter and (2) he knows that he is not licensed or privileged to be there. This crime also applies to entering or remaining at a place in violation of a retraining or protective order. This is a class A misdemeanor punishable by up to one year in prison, a fine of up to $2,000, or both (CGS § 53a-107).

A person commits second degree criminal trespass when he enters or remains in a building knowing that he is not licensed or privileged to do so. This is a class B misdemeanor punishable by up to six months in prison, a fine of up to $1,000, or both (CGS § 53a-108).

A person commits third degree criminal trespass when, knowing he is not licensed or privileged to do so, he enters or remains in any premises for hunting, trapping, or fishing or enters or remains in premises that are posted in a manner prescribed by law or reasonably likely to come to the attention of intruders or that are fenced or enclosed to exclude intruders. This also applies to state lands near state institutions. This is a class C misdemeanor punishable by up to three months in prison, a fine of up to $500, or both (CGS § 53a-109).

It is a defense to these crimes if (1) the building was abandoned, (2) the premises at the time of entry were open to the public and the person complied with all lawful conditions on access and remaining on the premises, or (3) the person reasonably believed that the owner (or someone else with the power to do so) would have or did license him to enter or remain on the premises (CGS § 53a-110).

A person commits simple trespass if, knowing he is not licensed or privileged to do so, he enters premises without intent to harm any property. This is an infraction punishable by a fine, currently $77 plus

costs and fees if paid by mail (CGS § 53a-110a). A separate infraction covers trespass on railroad property when a person enters or remains on the property without lawful authority or consent of the railroad carrier. This is currently a $121 fine plus costs and fees if paid by mail (CGS § 53a-110d).

DUTY OWED TO A LICENSEE

A licensee is someone privileged to enter or remain on land because the possessor consents to it, either by invitation or permission (Salaman v. Waterbury, 246 Conn. 298 (1998)). In Connecticut, the following rules apply to a possessor of land with respect to licensees.

1. He may not intentionally harm the licensee or lay a trap for him.

2. The licensee is entitled to due care after his presence is actually or constructively known.

3. There is no liability owed to the licensee for the obvious condition of the premises but conditions that may be obvious in the daytime may become concealed at night.

4. The possessor of land has a duty to watch out for licensees or tolerated intruders if he is engaged in a dangerous activity.

5. The possessor of land must warn licensees and tolerated intruders of dangerous hidden hazards he actually knows about (Conn. Law of Torts, § 48).

An owner or occupier of land is subject to liability to a licensee for injuries sustained from a natural or artificial condition if he (1) knows of the condition, (2) realizes it involves an unreasonable risk, (3) has reason to believe the licensee will not discover the condition or risk, and (4) permits the licensee to enter or remain on the premises without exercising reasonable care to make the condition reasonably safe or warn the licensee of the condition and the risk (Laube v. Stevenson, 137 Conn. 469 (1951)). Certain statutes grant immunity, such as when land is made available for recreational use (see CGS § 52-557f et seq.).

DUTY OWED TO INVITEES

Invitees are generally people who come on land for a business purpose to the benefit of the land possessor or to the mutual benefit of the visitor and land possessor. The Connecticut Supreme Court described three types of invitees.

1. A public invitee is someone invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.

2. A business invitee is someone invited to enter or remain on land for a purpose directly or indirectly connected with business dealing with the possessor of land.

3. A social invitee is someone who is owed the same standard of care as a business invitee (CGS § 52-557a). The distinction between an invitee and a licensee depends largely on whether the visitor received an invitation, as opposed to permission, to enter or remain on the land. Although an invitation does not establish the status of an invitee, it is essential to it (Restatement (Second), 2 Torts § 332 Comment B, Corcoran v. Jacovino, 161 Conn. 462, (1971)).

The possessor of land owes an invitee all the duties that he owes to a licensee and also: (1) the duty to inspect the premises and erect safeguards, if necessary, to render the premises reasonably safe and (2) he has liability for defects that would ordinarily be discoverable by a reasonable inspection and he has the duty to give a proper warning. But he is not liable to anyone for unknown latent defects, that could not be discovered by the exercise of reasonable care (Conn. Law of Torts, § 49).

Even if he is an invitee, the plaintiff must prove that the defendant had notice, actual or constructive, of the specific defective condition that caused the injury, and that the condition existed for a sufficient length of time to allow the possessor, in the exercise of reasonable care, an opportunity to discover it and fix it or warn of its presence (Monahan v. Montgomery, 153 Conn. 386). The possessor of land is not liable for hazards that could not have been discovered or anticipated (Conn. Law of Torts, § 49).

Why I Am Leaving Goldman Sachs

By GREG SMITHMARCH 14, 2012

TODAY is my last day at Goldman Sachs. After almost 12 years at the firm — first as a summer intern while at Stanford, then in New York for 10 years, and now in London — I believe I have worked here long enough to understand the trajectory of its culture, its people and its identity. And I can honestly say that the environment now is as toxic and destructive as I have ever seen it.

To put the problem in the simplest terms, the interests of the client continue to be sidelined in the way the firm operates and thinks about making money. Goldman Sachs is one of the world’s largest and most important investment banks and it is too integral to global finance to continue to act this way. The firm has veered so far from the place I joined right out of college that I can no longer in good conscience say that I identify with what it stands for.

It might sound surprising to a skeptical public, but culture was always a vital part of Goldman Sachs’s success. It revolved around teamwork, integrity, a spirit of humility, and always doing right by our clients. The culture was the secret sauce that made this place great and allowed us to earn our clients’ trust for 143 years. It wasn’t just about making money; this alone will not sustain a firm for so long. It had something to do with pride and belief in the organization. I am sad to say that I look around today and see virtually no trace of the culture that made me love working for this firm for many years. I no longer have the pride, or the belief.

But this was not always the case. For more than a decade I recruited and mentored candidates through our grueling interview process. I was selected as one of 10 people (out of a firm of more than 30,000) to appear on our recruiting video, which is played on every college campus we visit around the world. In 2006 I managed the summer intern program in sales and trading in New York for the 80 college students who made the cut, out of the thousands who applied.

I knew it was time to leave when I realized I could no longer look students in the eye and tell them what a great place this was to work.

When the history books are written about Goldman Sachs, they may reflect that the current chief executive officer, Lloyd C. Blankfein, and the president, Gary D. Cohn, lost hold of the firm’s culture on their watch. I truly believe that this decline in the firm’s moral fiber represents the single most serious threat to its long-run survival.

Over the course of my career I have had the privilege of advising two of the largest hedge funds on the planet, five of the largest asset managers in the United States, and three of the most prominent sovereign wealth funds in the Middle East and Asia. My clients have a total asset base of more than a trillion dollars. I have always taken a lot of pride in advising my clients to do what I believe is right for them, even if it means less money for the firm. This view is becoming increasingly unpopular at Goldman Sachs. Another sign that it was time to leave.

How did we get here? The firm changed the way it thought about leadership. Leadership used to be about ideas, setting an example and doing the right thing. Today, if you make enough money for the firm (and are not currently an ax murderer) you will be promoted into a position of influence.
What are three quick ways to become a leader? a) Execute on the firm’s “axes,” which is Goldman-speak for persuading your clients to invest in the stocks or other products that we are trying to get rid of because they are not seen as having a lot of potential profit. b) “Hunt Elephants.” In English: get your clients — some of whom are sophisticated, and some of whom aren’t — to trade whatever will bring the biggest profit to Goldman. Call me old-fashioned, but I don’t like selling my clients a product that is wrong for them. c) Find yourself sitting in a seat where your job is to trade any illiquid, opaque product with a three-letter acronym.

Today, many of these leaders display a Goldman Sachs culture quotient of exactly zero percent. I attend derivatives sales meetings where not one single minute is spent asking questions about how we can help clients. It’s purely about how we can make the most possible money off of them. If you were an alien from Mars and sat in on one of these meetings, you would believe that a client’s success or progress was not part of the thought process at all.

It makes me ill how callously people talk about ripping their clients off. Over the last 12 months I have seen five different managing directors refer to their own clients as “muppets,” sometimes over internal e-mail. Even after the S.E.C., Fabulous Fab, Abacus, God’s work, Carl Levin, Vampire Squids? No humility? I mean, come on. Integrity? It is eroding. I don’t know of any illegal behavior, but will people push the envelope and pitch lucrative and complicated products to clients even if they are not the simplest investments or the ones most directly aligned with the client’s goals? Absolutely. Every day, in fact.

It astounds me how little senior management gets a basic truth: If clients don’t trust you they will eventually stop doing business with you. It doesn’t matter how smart you are.
These days, the most common question I get from junior analysts about derivatives is, “How much money did we make off the client?” It bothers me every time I hear it, because it is a clear reflection of what they are observing from their leaders about the way they should behave. Now project 10 years into the future: You don’t have to be a rocket scientist to figure out that the junior analyst sitting quietly in the corner of the room hearing about “muppets,” “ripping eyeballs out” and “getting paid” doesn’t exactly turn into a model citizen.

When I was a first-year analyst I didn’t know where the bathroom was, or how to tie my shoelaces. I was taught to be concerned with learning the ropes, finding out what a derivative was, understanding finance, getting to know our clients and what motivated them, learning how they defined success and what we could do to help them get there.

My proudest moments in life — getting a full scholarship to go from South Africa to Stanford University, being selected as a Rhodes Scholar national finalist, winning a bronze medal for table tennis at the Maccabiah Games in Israel, known as the Jewish Olympics — have all come through hard work, with no shortcuts. Goldman Sachs today has become too much about shortcuts and not enough about achievement. It just doesn’t feel right to me anymore.

I hope this can be a wake-up call to the board of directors. Make the client the focal point of your business again. Without clients you will not make money. In fact, you will not exist. Weed out the morally bankrupt people, no matter how much money they make for the firm. And get the culture right again, so people want to work here for the right reasons. People who care only about making money will not sustain this firm — or the trust of its clients — for very much longer.

Upjohn Co. v. United States 公司总法搞的内部问卷，税务局可以查看吗？

Upjohn Co. v. United States, 449 U.S. 383 (1981)

No. 79-886
Argued November 5, 1980
Decided January 13, 1981
449 U.S. 383
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

Syllabus
When the General Counsel for petitioner pharmaceutical manufacturing corporation (hereafter petitioner) was informed that one of its foreign subsidiaries had made questionable payments to foreign government officials in order to secure government business, an internal investigation of such payments was initiated. As part of this investigation, petitioner's attorneys sent a questionnaire to all foreign managers seeking detailed information concerning such payments, and the responses were returned to the General Counsel. The General Counsel and outside counsel also interviewed the recipients of the questionnaire and other company officers and employees. Subsequently, based on a report voluntarily submitted by petitioner disclosing the questionable payments, the Internal Revenue Service (IRS) began an investigation to determine the tax consequences of such payments and issued a summons pursuant to 26 U.S.C. § 762 demanding production of, inter alia, the questionnaires and the memoranda and notes of the interviews. Petitioner refused to produce the documents on the grounds that they were protected from disclosure by the attorney-client privilege and constituted the work product of attorneys prepared in anticipation of litigation. The United States then filed a petition in Federal District Court seeking enforcement of the summons. That court adopted the Magistrate's recommendation that the summons should be enforced, the Magistrate having concluded, inter alia, that the attorney-client privilege had been waived, and that the Government had made a sufficient showing of necessity to overcome the protection of the work product doctrine. The Court of Appeals rejected the Magistrate's finding of a waiver of the attorney-client privilege, but held that, under the so-called "control group test," the privilege did not apply
"[t]o the extent that the communications were made by officers and agents not responsible for directing [petitioner's] actions in response to legal advice . . . for the simple reason that the communications were not the 'client's'.'"
The court also held that the work product doctrine did not apply to IRS summonses.
Held:
1. The communications by petitioner's employees to counsel are covered by the attorney-client privilege insofar as the responses to the questionnaires and any notes reflecting responses to interview questions are concerned. Pp. 449 U. S. 389-397.
(a) The control group test overlooks the fact that such privilege exists to protect not only the giving of professional advice to those who can act on it, but also the giving of information to the lawyer to enable him to give sound and informed advice. While in the case of the individual client the provider of information and the person who acts on the lawyer's advice are one and the same, in the corporate context, it will frequently be employees beyond the control group (as defined by the Court of Appeals) who will possess the information needed by the corporation's lawyers. Middle-level -- and indeed lower-level -- employees can, by actions within the scope of their employment, embroil the corporation in serious legal difficulties, and it is only natural that these employees would have the relevant information needed by corporate counsel if he is adequately to advise the client with respect to such actual or potential difficulties. Pp. 449 U. S. 390-392.
(b) The control group test thus frustrates the very purpose of the attorney-client privilege by discouraging the communication of relevant information by employees of the client corporation to attorneys seeking to render legal advice to the client. The attorney's advice will also frequently be more significant to noncontrol employees than to those who officially sanction the advice, and the control group test makes it more difficult to convey full and frank legal advice to the employees who will put into effect the client corporation's policy. P. 449 U. S. 392.
(c) The narrow scope given the attorney-client privilege by the Court of Appeals not only makes it difficult for corporate attorneys to formulate sound advice when their client is faced with a specific legal problem, but also threatens to limit the valuable efforts of corporate counsel to ensure their client's compliance with the law. Pp. 449 U. S. 392-393.
(d) Here, the communications at issue were made by petitioner's employees to counsel for petitioner, acting as such, at the direction of corporate superiors in order to secure legal advice from counsel. Information not available from upper-echelon management was needed to supply a basis for legal advice concerning compliance with securities and tax laws, foreign laws, currency regulations, duties to shareholders, and potential litigation in each of these areas. The communications concerned matters within the scope of the employees' corporate duties, and the employees themselves were sufficiently aware that they were being questioned in order that the corporation could obtain legal advice. Pp. 449 U. S. 394-395
2. The work product doctrine applies to IRS summonses. Pp. 449 U. S. 397-402.
(a) The obligation imposed by a tax summons remains subject to the traditional privileges and limitations, and nothing in the language or legislative.history of the IRS summons provisions suggests an intent on the part of Congress to preclude application of the work product doctrine. P. 449 U. S. 398.
(b) The Magistrate applied the wrong standard when he concluded that the Government had made a sufficient showing of necessity to overcome the protections of the work product doctrine. The notes and memoranda sought by the Government constitute work product based on oral statements. If they reveal communications, they are protected by the attorney-client privilege. To the extent they do not reveal communications, they reveal attorneys' mental processes in evaluating the communications. As Federal Rule of Civil Procedure 6, which accords special protection from disclosure to work product revealing an attorney's mental processes, and Hickman v. Taylor, 329 U. S. 495, make clear, such work product cannot be disclosed simply on a showing of substantial need or inability to obtain the equivalent without undue hardship. P. 449 U. S. 401.
600 F.2d 1223, reversed and remanded.
REHNQUIST, J., delivered the opinion of the Court, in which BRENNAN, STEWART, WHITE, MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ., joined, and in Parts I and III of which BURGER, C.J., joined. BURGER, C.J., filed an opinion concurring in part and concurring in the judgment, post, p. 449 U. S. 402.

JUSTICE REHNQUIST delivered the opinion of the Court.

We granted certiorari in this case to address important questions concerning the scope of the attorney-client privilege in the corporate context and the applicability of the work product doctrine in proceedings to enforce tax summonses. 445 U.S. 925. With respect to the privilege question, the parties and various amici have described our task as one of choosing between two "tests" which have gained adherents in the courts of appeals. We are acutely aware, however, that we sit to decide concrete cases, and not abstract propositions of law. We decline to lay down a broad rule or series of rules to govern all conceivable future questions in this area, even were we able to do so. We can and do, however, conclude that the attorney-client privilege protects the communications involved in this case from compelled disclosure, and that the work product doctrine does apply in tax summons enforcement proceedings.

I
Petitioner Upjohn Co. manufactures and sells pharmaceuticals here and abroad. In January, 1976, independent accountants conducting an audit of one of Upjohn's foreign subsidiaries discovered that the subsidiary made payments to or for the benefit of foreign government officials in order to secure government business. The accountants so informed petitioner Mr. Gerard Thomas, Upjohn's Vice President, Secretary, and General Counsel. Thomas is a member of the Michigan and New York Bars, and has been Upjohn's General Counsel for 20 years. He consulted with outside counsel and R. T. Parfet, Jr., Upjohn's Chairman of the Board. It was decided that the company would conduct an internal investigation of what were termed "questionable payments." As part of this investigation, the attorneys prepared a letter containing a questionnaire which was sent to "All Foreign General and Area Managers" over the Chairman's signature. The letter began by noting recent disclosures that several American companies made "possibly illegal" payments to foreign government officials, and emphasized that the management needed full information concerning any such payments made by Upjohn. The letter indicated that the Chairman had asked Thomas, identified as "the company's General Counsel," "to conduct an investigation for the purpose of determining the nature and magnitude of any payments made by the Upjohn Company or any of its subsidiaries to any employee or official of a foreign government."
The questionnaire sought detailed information concerning such payments. Managers were instructed to treat the investigation as "highly confidential" and not to discuss it with anyone other than Upjohn employees who might be helpful in providing the requested information. Responses were to be sent directly to Thomas. Thomas and outside counsel also interviewed the recipients of the questionnaire and some 33 other Upjohn officers or employees as part of the investigation.
On March 26, 1976, the company voluntarily submitted a preliminary report to the Securities and Exchange Commission on Form 8-K disclosing certain questionable payments. [Footnote 1] A copy of the report was simultaneously submitted to the Internal Revenue Service, which immediately began an investigation to determine the tax consequences of the payments. Special agents conducting the investigation were given lists by Upjohn of all those interviewed and all who had responded to the questionnaire. On November 23, 1976, the Service issued a summons pursuant to 26 U.S.C. § 7602 demanding production of:
"All files relative to the investigation conducted under the supervision of Gerard Thomas to identify payments to employees of foreign governments and any political contributions made by the Upjohn Company or any of its affiliates since January 1, 1971, and to determine whether any funds of the Upjohn Company had been improperly accounted for on the corporate books during the same period."
"The records should include but not be limited to written questionnaires sent to managers of the Upjohn Company's foreign affiliates, and memorandums or notes of the interviews conducted in the United States and abroad with officers and employees of the Upjohn Company and its subsidiaries."
App. 17a-18a. The company declined to produce the documents specified in the second paragraph on the grounds that they were protected from disclosure by the attorney-client privilege and constituted the work product of attorneys prepared in anticipation of litigation. On August 31, 1977, the United States filed a petition seeking enforcement of the summons under 26 U.S.C. § 7402(b) and 7604(a) in the United States District Court for the Western District of Michigan. That court adopted the recommendation of a Magistrate who concluded that the summons should be enforced. Petitioners appealed to the Court of Appeals for the Sixth Circuit, which rejected the Magistrate's finding of a waiver of the attorney-client privilege, 600 F.2d 1223, 1227, n. 12, but agreed that the privilege did not apply
"[t]o the extent that the communications were made by officers and agents not responsible for directing Upjohn's actions in response to legal advice . . . , for the simple reason that the communications were not the 'client's.'"
Id. at 1225. The court reasoned that accepting petitioners' claim for a broader application of the privilege would encourage upper-echelon management to ignore unpleasant facts and create too broad a "zone of silence." Noting that Upjohn's counsel had interviewed officials such as the Chairman and President, the Court of Appeals remanded to the District Court so that a determination of who was within the "control group" could be made. In a concluding footnote, the court stated that the work product doctrine "is not applicable to administrative summonses issued under 26 U.S.C. § 7602." Id. at 1228, n. 13.

II
Federal Rule of Evidence 501 provides that "the privilege of a witness . . . shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in light of reason and experience."
The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law. 8 J. Wigmore, Evidence § 2290 (McNaughton rev.1961). Its purpose is to encourage full and frank communication between attorneys and their clients, and thereby promote broader public interests in the observance of law and administration of justice. The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer's being fully informed by the client. As we stated last Term in Trammel v. United States, 445 U. S. 40, 445 U. S. 51 (1980):
"The lawyer-client privilege rests on the need for the advocate and counselor to know all that relates to the client's reasons for seeking representation if the professional mission is to be carried out."
And in Fisher v. United States, 425 U. S. 391, 425 U. S. 403 (1976), we recognized the purpose of the privilege to be "to encourage clients to make full disclosure to their attorneys." This rationale for the privilege has long been recognized by the Court, see Hunt v. Blackburn, 128 U. S. 464, 128 U. S. 470 (1888) (privilege "is founded upon the necessity, in the interest and administration of justice, of the aid of persons having knowledge of the law and skilled in its practice, which assistance can only be safely and readily availed of when free from the consequences or the apprehension of disclosure"). Admittedly complications in the application of the privilege arise when the client is a corporation, which, in theory, is an artificial creature of the law, and not an individual; but this Court has assumed that the privilege applies when the client is a corporation, United States v. Louisville Nashville R. Co., 236 U. S. 318, 236 U. S. 336 (1915), and the Government does not contest the general proposition.
The Court of Appeals, however, considered the application of the privilege in the corporate context to present a "different problem," since the client was an inanimate entity, and
"only the senior management, guiding and integrating the several operations, . . . can be said to possess an identity analogous to the corporation as a whole."
600 F.2d at 1226. The first case to articulate the so-called "control group test" adopted by the court below, Philadelphia v. Westinghouse Electric Corp., 210 F.Supp. 483, 485 (ED Pa.), petition for mandamus and prohibition denied sub nom. General Electric Co. v. Kirkpatrick, 312 F.2d 742 (CA3 1962), cert. denied, 372 U.S. 943 (1963), reflected a similar conceptual approach:
"Keeping in mind that the question is, is it the corporation which is seeking the lawyer's advice when the asserted privileged communication is made?, the most satisfactory solution, I think, is that, if the employee making the communication, of whatever rank he may be, is in a position to control or even to take a substantial part in a decision about any action which the corporation may take upon the advice of the attorney, . . . then, in effect, he is (or personifies) the corporation when he makes his disclosure to the lawyer, and the privilege would apply."
(Emphasis supplied.) Such a view, we think, overlooks the fact that the privilege exists to protect not only the giving of professional advice to those who can act on it, but also the giving of information to the lawyer to enable him to give sound and informed advice. See Trammel, supra at 445 U. S. 51; Fisher, supra at 425 U. S. 403. The first step in the resolution of any legal problem is ascertaining the factual background and sifting through the facts with an eye to the legally relevant. See ABA Code of Professional Responsibility, Ethical Consideration 4-1:
"A lawyer should be fully informed of all the facts of the matter he is handling in order for his client to obtain the full advantage of our legal system. It is for the lawyer in the exercise of his independent professional judgment to separate the relevant and important from the irrelevant and unimportant. The observance of the ethical obligation of a lawyer to hold inviolate the confidences and secrets of his client not only facilitates the full development of facts essential to proper representation of the client, but also encourages laymen to seek early legal assistance."
See also Hickman v. Taylor, 329 U. S. 495, 329 U. S. 511 (1947).
In the case of the individual client, the provider of information and the person who acts on the lawyer's advice are one and the same. In the corporate context, however, it will frequently be employees beyond the control group as defined by the court below -- "officers and agents . . . responsible for directing [the company's] actions in response to legal advice" -- who will possess the information needed by the corporation's lawyers. Middle-level -- and indeed lower-level employees can, by actions within the scope of their employment, embroil the corporation in serious legal difficulties, and it is only natural that these employees would have the relevant information needed by corporate counsel if he is adequately to advise the client with respect to such actual or potential difficulties. This fact was noted in Diversified Industries, Inc. v. Meredith, 572 F.2d 596 (CA8 1978) (en banc):
"In a corporation, it may be necessary to glean information relevant to a legal problem from middle management or non-management personnel as well as from top executives. The attorney dealing with a complex legal problem" "is thus faced with a 'Hobson's choice.' If he interviews employees not having 'the very highest authority,' their communications to him will not be privileged. If, on the other hand, he interviews only those employees with 'the very highest authority,' he may find it extremely difficult, if not impossible, to determine what happened."
Id. at 608-609 (quoting Weinschel, Corporate Employee Interviews and the Attorney-Client Privilege, 12 B.C.Ind. & Com.L.Rev. 873, 876 (1971)). The control group test adopted by the court below thus frustrates the very purpose of the privilege by discouraging the communication of relevant information by employees of the client to attorneys seeking to render legal advice to the client corporation. The attorney's advice will also frequently be more significant to noncontrol group members than to those who officially sanction the advice, and the control group test makes it more difficult to convey full and frank legal advice to the employees who will put into effect the client corporation's policy. See, e.g., Duplan Corp. v. Deering Milliken, Inc., 397 F.Supp. 1146, 1164 (SC 1974) ("After the lawyer forms his or her opinion, it is of no immediate benefit to the Chairman of the Board or the President. It must be given to the corporate personnel who will apply it").
The narrow scope given the attorney-client privilege by the court below not only makes it difficult for corporate attorneys to formulate sound advice when their client is faced with a specific legal problem, but also threatens to limit the valuable efforts of corporate counsel to ensure their client's compliance with the law. In light of the vast and complicated array of regulatory legislation confronting the modern corporation, corporations, unlike most individuals, "constantly go to lawyers to find out how to obey the law," Burnham, The Attorney-Client Privilege in the Corporate Arena, 24 Bus.Law. 901, 913 (1969), particularly since compliance with the law in this area is hardly an instinctive matter, see, e.g., United States v. United States Gypsum Co., 438 U. S. 422, 438 U. S. 440-441 (1978) ("the behavior proscribed by the [Sherman] Act is often difficult to distinguish from the gray zone of socially acceptable and economically justifiable business conduct"). [Footnote 2] The test adopted by the court below is difficult to apply in practice, though no abstractly formulated and unvarying "test" will necessarily enable courts to decide questions such as this with mathematical precision. But if the purpose of the attorney-client privilege is to be served, the attorney and client must be able to predict with some degree of certainty whether particular discussions will be protected. An uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all. The very terms of the test adopted by the court below suggest the unpredictability of its application. The test restricts the availability of the privilege to those officers who play a "substantial role" in deciding and directing a corporation's legal response. Disparate decisions in cases applying this test illustrate its unpredictability. Compare, e.g., Hogan v. Zletz, 43 F.R.D. 308, 315-316 (ND Okla.1967), aff'd in part sub nom. Natta v. Hogan, 392 F.2d 686 (CA10 1968) (control group includes managers and assistant managers of patent division and research and development department), with Congoleum Industries, Inc. v. GAF Corp., 49 F.R.D. 82, 83-85 (ED Pa.1969), aff'd, 478 F.2d 1398 (CA3 1973) (control group includes only division and corporate vice-presidents, and not two directors of research and vice-president for production and research).
Page 449 U. S. 394
The communications at issue were made by Upjohn employees [Footnote 3] to counsel for Upjohn, acting as such, at the direction of corporate superiors in order to secure legal advice from counsel. As the Magistrate found,
"Mr. Thomas consulted with the Chairman of the Board and outside counsel, and thereafter conducted a factual investigation to determine the nature and extent of the questionable payments and to be in a position to give leal advice to the company with respect to the payments."
(Emphasis supplied.) 78-1 USTC 9277, pp. 83,598, 83,599. Information, not available from upper-echelon management, was needed to supply a basis for legal advice concerning compliance with securities and tax laws, foreign laws, currency regulations, duties to shareholders, and potential litigation in each of these areas. [Footnote 4] The communications concerned matters within the scope of the employees' corporate duties, and the employees themselves were sufficiently aware that they were being questioned in order that the corporation could obtain legal advice. The questionnaire identified Thomas as "the company's General Counsel" and referred in its opening sentence to the possible illegality of payments such as the ones on which information was sought. App. 40a. A statement of policy accompanying the questionnaire clearly indicated the legal implications of the investigation. The policy statement was issued "in order that there be no uncertainty in the future as to the policy with respect to the practices which are the subject of this investigation."
Page 449 U. S. 395
It began "Upjohn will comply with all laws and regulations," and stated that commissions or payments "will not be used as a subterfuge for bribes or illegal payments" and that all payments must be "proper and legal." Any future agreements with foreign distributors or agents were to be approved "by a company attorney," and any questions concerning the policy were to be referred "to the company's General Counsel." Id. at 165a-166a. This statement was issued to Upjohn employees worldwide, so that even those interviewees not receiving a questionnaire were aware of the legal implications of the interviews. Pursuant to explicit instructions from the Chairman of the Board, the communications were considered "highly confidential" when made, id. at 39a, 43a, and have been kept confidential by the company. [Footnote 5] Consistent with the underlying purposes of the attorney-client privilege, these communications must be protected against compelled disclosure.
The Court of Appeals declined to extend the attorney-client privilege beyond the limits of the control group test for fear that doing so would entail severe burdens on discovery and create a broad "zone of silence" over corporate affairs. Application of the attorney-client privilege to communications such as those involved here, however, puts the adversary in no worse position than if the communications had never taken place. The privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney:
"[T]he protection of the privilege extends only to communications, and not to facts. A fact is one thing and a communication concerning that fact is an entirely different
Page 449 U. S. 396
thing. The client cannot be compelled to answer the question, 'What did you say or write to the attorney?' but may not refuse to disclose any relevant fact within his knowledge merely because he incorporated a statement of such fact into his communication to his attorney."
Philadelphia v. Westinghouse Electric Corp., 205 F.Supp. 830, 831 (ED Pa.1962). See also Diversified Industries, 572 F.2d at 611; State ex rel. Dudek v. Circuit Court, 34 Wis.2d 559, 580, 150 N.W.2d 387, 399 (1967) ("the courts have noted that a party cannot conceal a fact merely by revealing it to his lawyer"). Here, the Government was free to question the employees who communicated with Thomas and outside counsel. Upjohn has provided the IRS with a list of such employees, and the IRS has already interviewed some 25 of them. While it would probably be more convenient for the Government to secure the results of petitioner's internal investigation by simply subpoenaing the questionnaires and notes taken by petitioner's attorneys, such considerations of convenience do not overcome the policies served by the attorney-client privilege. As Justice Jackson noted in his concurring opinion in Hickman v. Taylor, 329 U.S. at 329 U. S. 516: "Discovery was hardly intended to enable a learned profession to perform its functions . . . on wits borrowed from the adversary."
Needless to say, we decide only the case before us, and do not undertake to draft a set of rules which should govern challenges to investigatory subpoenas. Any such approach would violate the spirit of Federal Rule of Evidence 501. SeeS.Rep. No. 93-1277, p. 13 (1974) ("the recognition of a privilege based on a confidential relationship . . . should be determined on a case-by-case basis"); Trammel, 445 U.S. at 445 U. S. 47; United States v. Gillock, 445 U. S. 360, 445 U. S. 367(1980). While such a "case-by-case" basis may to some slight extent undermine desirable certainty in the boundaries of the attorney-client
Page 449 U. S. 397
privilege, it obeys the spirit of the Rules. At the same time, we conclude that the narrow "control group test" sanctioned by the Court of Appeals in this case cannot, consistent with "the principles of the common law as . . . interpreted . . . in the light of reason and experience," Fed.Rule Evid. 501, govern the development of the law in this area.
III
Our decision that the communications by Upjohn employees to counsel are covered by the attorney-client privilege disposes of the case so far as the responses to the questionnaires and any notes reflecting responses to interview questions are concerned. The summons reaches further, however, and Thomas has testified that his notes and memoranda of interviews go beyond recording responses to his questions. App. 27a-28a, 91a-93a. To the extent that the material subject to the summons is not protected by the attorney-client privilege as disclosing communications between an employee and counsel, we must reach the ruling by the Court of Appeals that the work product doctrine does not apply to summonses issued under 26 U.S.C. § 7602. [Footnote 6]
The Government concedes, wisely, that the Court of Appeals erred and that the work product doctrine does apply to IRS summonses. Brief for Respondents 16, 48. This doctrine was announced by the Court over 30 years ago in Hickman v. Taylor, 329 U. S. 495 (1947). In that case, the Court rejected
"an attempt, without purported necessity or justification, to secure written statements, private memoranda and personal recollections prepared or formed by an adverse party's counsel in the course of his legal duties."
Id. at 329 U. S. 510. The Court noted that "it is essential that a lawyer work with
Page 449 U. S. 398
a certain degree of privacy," and reasoned that, if discovery of the material sought were permitted,
"much of what is now put down in writing would remain unwritten. An attorney's thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served."
Id. at 329 U. S. 511. The "strong public policy" underlying the work product doctrine was reaffirmed recently in United States v. Nobles, 422 U. S. 225, 422 U. S. 236-240 (1975), and has been substantially incorporated in Federal Rule of Civil Procedure 26(b)(3). [Footnote 7]
As we stated last Term, the obligation imposed by a tax summons remains "subject to the traditional privileges and limitations." United States v. Euge, 444 U. S. 707, 444 U. S. 714 (1980). Nothing in the language of the IRS summons provisions or their legislative history suggests an intent on the part of Congress to preclude application of the work product doctrine. Rule 26(b)(3) codifies the work product doctrine, and the Federal Rules of Civil Procedure are made applicable
Page 449 U. S. 399
to summons enforcement proceedings by Rule 81(a)(3). See Donaldson v. United States, 400 U. S. 517, 400 U. S. 528 (1971). While conceding the applicability of the work product doctrine, the Government asserts that it has made a sufficient showing of necessity to overcome its protections. The Magistrate apparently so found, 78-1 USTC � 9277, p. 83,605. The Government relies on the following language in Hickman:
"We do not mean to say that all written materials obtained or prepared by an adversary's counsel with an eye toward litigation are necessarily free from discovery in all cases. Where relevant and nonprivileged facts remain hidden in an attorney's file, and where production of those facts is essential to the preparation of one's case, discovery may properly be had. . . . And production might be justified where the witnesses are no longer available or can be reached only with difficulty."
329 U.S. at 329 U. S. 511. The Government stresses that interviewees are scattered across the globe, and that Upjohn has forbidden its employees to answer questions it considers irrelevant. The above-quoted language from Hickman, however, did not apply to "oral statements made by witnesses . . . whether presently in the form of [the attorney's] mental impressions or memoranda." Id. at 329 U. S. 512. As to such material, the Court did
"not believe that any showing of necessity can be made under the circumstances of this case so as to justify production. . . . If there should be a rare situation justifying production of these matters, petitioner's case is not of that type."
Id. at 329 U. S. 512-513. See also Nobles, supra at 422 U. S. 252-253 (WHITE, J., concurring). Forcing an attorney to disclose notes and memoranda of witnesses' oral statements is particularly disfavored, because it tends to reveal the attorney's mental processes, 329 U.S. at 329 U. S. 513 ("what he saw fit to write down regarding witnesses' remarks"); id. at 329 U. S. 516-517 ("the statement would be his [the
Page 449 U. S. 400
attorney's] language, permeated with his inferences") (Jackson, J., concurring). [Footnote 8]
Rule 26 accords special protection to work product revealing the attorney's mental processes. The Rule permits disclosure of documents and tangible things constituting attorney work product upon a showing of substantial need and inability to obtain the equivalent without undue hardship. This was the standard applied by the Magistrate, 78-1 USTC � 9277, p. 83,604. Rule 26 goes on, however, to state that,
"[i]n ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation."
Although this language does not specifically refer to memoranda based on oral statements of witnesses, the Hickmancourt stressed the danger that compelled disclosure of such memoranda would reveal the attorney's mental processes. It is clear that this is the sort of material the draftsmen of the Rule had in mind as deserving special protection. See Notes of Advisory Committee on 1970 Amendment to Rules, 28 U.S.C.App. p. 442 ("The subdivision . . . goes on to protect against disclosure the mental impressions, conclusions, opinions, or legal theories . . . of an attorney or other representative of a party. The Hickman opinion drew special attention to the need for protecting an attorney against discovery of memoranda prepared from recollection of oral interviews. The courts have steadfastly safeguarded against disclosure of lawyers' mental impressions and legal theories. . . .").
Page 449 U. S. 401
Based on the foregoing, some courts have concluded that no showing of necessity can overcome protection of work product which is based on oral statements from witnesses. See, e.g., In re Grand Jury Proceedings, 473 F.2d 840, 848 (CA8 1973) (personal recollections, notes, and memoranda pertaining to conversation with witnesses); In re Grand Jury Investigation, 412 F.Supp. 943, 949 (ED Pa.1976) (notes of conversation with witness "are so much a product of the lawyer's thinking and so little probative of the witness's actual words that they are absolutely protected from disclosure"). Those courts declining to adopt an absolute rule have nonetheless recognized that such material is entitled to special protection. See, e.g., In re Grand Jury Investigation, 599 F.2d 1224, 1231 (CA3 1979) ("special considerations . . . must shape any ruling on the discoverability of interview memoranda . . . ; such documents will be discoverable only in a rare situation'"); cf. In re Grand Jury Subpoena, 599 F.2d 504, 511-512 (CA2 1979).
We do not decide the issue at this time. It is clear that the Magistrate applied the wrong standard when he concluded that the Government had made a sufficient showing of necessity to overcome the protections of the work product doctrine. The Magistrate applied the "substantial need" and "without undue hardship" standard articulated in the first part of Rule 26(b)(3). The notes and memoranda sought by the Government here, however, are work product based on oral statements. If they reveal communications, they are, in this case, protected by the attorney-client privilege. To the extent they do not reveal communications, they reveal the attorneys' mental processes in evaluating the communications. As Rule 26 and Hickman make clear, such work product cannot be disclosed simply on a showing of substantial need and inability to obtain the equivalent without undue hardship.
While we are not prepared at this juncture to say that such material is always protected by the work product rule, we
Page 449 U. S. 402
think a far stronger showing of necessity and unavailability by other means than was made by the Government or applied by the Magistrate in this case would be necessary to compel disclosure. Since the Court of Appeals thought that the work product protection was never applicable in an enforcement proceeding such as this, and since the Magistrate whose recommendations the District Court adopted applied too lenient a standard of protection, we think the best procedure with respect to this aspect of the case would be to reverse the judgment of the Court of Appeals for the Sixth Circuit and remand the case to it for such further proceedings in connection with the work product claim as are consistent with this opinion.
Accordingly, the judgment of the Court of Appeals is reversed, and the case remanded for further proceedings.
It is so ordered.
[Footnote 1]
On July 28, 1976, the company filed an amendment to this report disclosing further payments.
[Footnote 2]
The Government argues that the risk of civil or criminal liability suffices to ensure that corporations will seek legal advice in the absence of the protection of the privilege. This response ignores the fact that the depth and quality of any investigations to ensure compliance with the law would suffer, even were they undertaken. The response also proves too much, since it applies to all communications covered by the privilege: an individual trying to comply with the law or faced with a legal problem also has strong incentive to disclose information to his lawyer, yet the common law has recognized the value of the privilege in further facilitating communications.
[Footnote 3]
Seven of the eighty-six employees interviewed by counsel had terminated their employment with Upjohn at the time of the interview. App. 33a-38a. Petitioners argue that the privilege should nonetheless apply to communications by these former employees concerning activities during their period of employment. Neither the District Court nor the Court of Appeals had occasion to address this issue, and we decline to decide it without the benefit of treatment below.
[Footnote 4]
See id. at 26a-27a, 103a, 123a-124a. See also In re Grand Jury Investigation, 599 F.2d 1224, 1229 (CA3 1979); In re Grand Jury Subpoena, 599 F.2d 504, 511 (CA2 1979).
[Footnote 5]
See Magistrate's opinion, 71 USTC � 9277, p. 83,599:
"The responses to the questionnaires and the notes of the interviews have been treated as confidential material, and have not been disclosed to anyone except Mr. Thomas and outside counsel."
[Footnote 6]
The following discussion will also be relevant to counsel's notes and memoranda of interviews with the seven former employees should it be determined that the attorney-client privilege does not apply to them. See n 3, supra.
[Footnote 7]
This provides, in pertinent part:
"[A] party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation."
[Footnote 8]
Thomas described his notes of the interviews as containing
"what I considered to be the important questions, the substance of the responses to them, my beliefs as to the importance of these, my beliefs as to how they related to the inquiry, my thoughts as to how they related to other questions. In some instances, they might even suggest other questions that I would have to ask or things that I needed to find elsewhere."
78-1 USTC � 9277, p. 83,599.
CHIEF JUSTICE BURGER, concurring in part and concurring in the judgment.
I join in Parts I and III of the opinion of the Court and in the judgment. As to Part II, I agree fully with the Court's rejection of the so-called "control group" test, its reasons for doing so, and its ultimate holding that the communications at issue are privileged. As the Court states, however,
"if the purpose of the attorney-client privilege is to be served, the attorney and client must be able to predict with some degree of certainty whether particular discussions will be protected."
Ante at 449 U. S. 393. For this very reason, I believe that we should articulate a standard that will govern similar cases and afford guidance to corporations, counsel advising them, and federal courts.
The Court properly relies on a variety of factors in concluding that the communications now before us are privileged. See ante at 449 U. S. 394-395. Because of the great importance of the issue, in my view, the Court should make clear now that, as a
Page 449 U. S. 403
general rule, a communication is privileged at least when, as here, an employee or former employee speaks at the direction of the management with an attorney regarding conduct or proposed conduct within the scope of employment. The attorney must be one authorized by the management to inquire into the subject, and must be seeking information to assist counsel in performing any of the following functions: (a) evaluating whether the employee's conduct has bound or would bind the corporation; (b) assessing the legal consequences, if any, of that conduct; or (c) formulating appropriate legal responses to actions that have been or may be taken by others with regard to that conduct. See, e.g., Diversified Industries, Inc. v. Meredith, 572 F.2d 596, 609 (CA8 1978) (en banc); Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487, 491-492 (CA7 1970), aff'd by an equally divided Court, 400 U. S. 348 (1971); Duplan Corp. v. Deering Milliken, Inc., 397 F.Supp. 1146, 1163-1165 (SC 1974). Other communications between employees and corporate counsel may indeed be privileged -- as the petitioners and several amici have suggested in their proposed formulations * -- but the need for certainty does not compel us now to prescribe all the details of the privilege in this case.
Nevertheless, to say we should not reach all facets of the privilege does not mean that we should neglect our duty to provide guidance in a case that squarely presents the question in a traditional adversary context. Indeed, because Federal Rule of Evidence 501 provides that the law of privileges
"shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience,"
this Court has a special duty to clarify aspects of the law of privileges properly
Page 449 U. S. 404
before us. Simply asserting that this failure "may to some slight extent undermine desirable certainty," ante at 449 U. S. 396, neither minimizes the consequences of continuing uncertainty and confusion nor harmonizes the inherent dissonance of acknowledging that uncertainty while declining to clarify it within the frame of issues presented.
* See Brief for Petitioners 21-23, and n. 25; Brief for American Bar Association as Amicus Curiae 5-6, and n. 2; Brief for American College of Trial Lawyers and 33 Law Firms as Amici Curiae 10, and n. 5.

Eastern Air Lines, Inc. v. Gulf Oil Corp. (Trujillo Contracts)

Illusory Promises

Here is a case from my Contracts course which explains the concept of Requirements Contracts. In this case, an oil embargo crisis does not excuse a party from fulfilling their agreed specific performance.

Case Name, Citation Number, Author
Eastern Air Lines, Inc. v. Gulf Oil Corp., 415 F. Supp. 429 (1975)

Procedural History
Plaintiff obtained a temporary injunction and sued for specific performance of the contract. Defendant argued that the contract was invalid.

Facts
–Plaintiff and Defendant had agreement for the sale of aviation fuel (spanning decades).
–In 1974 Defendant approached Plaintiff to raise the price of their agreement (OPEC raised prices during the oil embargo) or their supply would be shut off because agreement was not profitable any more.
–Plaintiff then obtained a temporary injunction and sued for specific performance of the contract.
–Defendant argued that the contract was invalid because: 1) It lacked mutuality of obligation, and 2) Plaintiff breached the contract by practicing “fuel freighting” whereby a plane bought more than it needed from the lowest price gas station, and then only “topped off” at the higher priced station. Courtesy of www.lawschoolcasebriefs.net

Issue
Is the requirements contracts binding?

Holding
Yes because a requirements contract is binding. Both parties agreed on a price and output amount of aviation fuel, which was all done in good faith.

Rule
Unprofitability alone will not excuse performance.

Reasoning
Defendant tried to argue that the agreement was not detailed enough and therefore there was not binding contract, but in a requirements contract you don’t have quantity specified; the binding standard is reasonableness and fair dealings.

Notes
–UCC §2-306 Output, Requirements (contracts) and Exclusive Dealings: (1) When there is no specified quantity by output of seller, the output must be done in good faith and reasonably. Don’t make contract illusory.
–Both parties assumed the risks.

Prince’s Takeaway
Requirements Contracts are binding.

Constructive Eviction

Posted by Laura 19sc on July 14, 2014

One of my more memorable encounters with an individual client occurred when I first started working at the Tenant Resource Center.  It takes a while for counselors to get their sea legs, and I was no different.  The client had a big impact on me.

The client was a tenant, a mother with a husband and young children in the household, with health problems due to the mold in her rental housing. She was ill - her hair had fallen off in chunks and her skin was discolored. Her children were sick - asthma and pnuemonia. The building inspector who came to inspect the unit felt it wasn't safe enough to go into. 

Sometimes the lack of options for a client can be breathtaking.  Sometimes, the options just take chutzpah. Constructive eviction is a little bit of both.

In a situation where there is a clear need for repairs, and the landlord hasn't been able to take care of those repairs, and the tenant wants to move out, then constructive eviction may be the (last resort) solution, like it was for this client.

Here's how it works: "Constructive eviction" is a defense used in court, when:

repair issues have been terrible, and
the tenants have moved out because of the repair issues, and
the landlord is suing those tenants for leftover rent.
If a tenant goes to that court hearing and makes the judge believe that they moved out because the rental unit was unlivable (that they "constructively evicted"), then that's the best case scenario for constructive eviction.

The Law: Wis. Stat. 704.07(4) says, "If the premises become untenantable because of damage by fire, water ...or because of any condition hazardous to health, ... the tenant may remove from the premises unless the landlord proceeds promptly to repair or rebuild or eliminate the health hazard ...  or the tenant may remove if the inconvenience to the tenant by reason of the nature and period of repair, rebuilding or elimination would impose undue hardship on the tenant....

If the tenant justifiably moves out under this subsection, the tenant is not liable for rent after the premises become untenantable and the landlord must repay any rent paid in advance apportioned to the period after the premises become untenantable."

A translation of that law might be: if the rental unit becomes unlivable, and the landlord can't make repairs right away (or if the process of repairing would be unlivable), then the tenant can choose to move out.  If the tenant chooses to move out, then the tenant can't be held responsible for rent from the point when the rental unit became unlivable.

Constructive eviction is really a last resort kind of solution.  A law can't actively keep a tenant safe ("I'll keep this fire at bay," says the law in Opposite Land), and so if a tenant feels unsafe, they should deal with that as they see fit.  In order to deal with the money side of things, though, a tenant will be most successful claiming constructive eviction in court if they have also:

Written letters asking the landlord to make repairs
Asked for help from a local building inspector or health department to document the situation. There are some building inspector phone numbers listed at the bottom of our repairs page (or you can contact us if yours isn't listed), and local health department phone numbers can be accessed here. If it's a small enough place where there isn't a building inspector or health department that can come out, it might not be a bad idea just to have some professional contractor come out to see what's wrong and what it would take to fix. Make sure to keep records of all those visits.
Tried to negotiate.  For tenants, they should think about what they want (the lease ended by mutual agreement?) and do their best to try and work it out. Also a good idea to write a follow up letter, no matter what the result was.
For a tenant claiming constructive eviction, the steps are:

Gather evidence of The Big Problem, such as: communication with the landlord/manager about the problem, photos, statements from Building Inspector/Health Department/ Private Professional Contractor.
Either wait for the landlord to sue you (the tenant) for unpaid rent, or the tenant can sue the landlord for rent that was paid after the problem began.  Either way, if the case is for an amount less than $10,000, it will end up in Small Claims Court.  See our Small Claims Court Tips here.
You should know: for a Big Problem to be eligible for constructive eviction, then it can't be caused by the tenant.

Sometimes it's simply not possible for landlords to do all the necessary repairs.  Sometimes those repairs are expensive, or weather doesn't allow repairs to be done.  Here are some ways that landlords can avoid dealing with constructive eviction:

Make repairs as soon as you can after you know about a problem - it means that when the unfixable ones come up, tenants will see that the landlord has a history of making a reasonable effort to do right by repairs.
If the problem isn't fixable, then let tenants out of lease if the place is unlivable (rental housing in Wisconsin has an "implied warranty of habitability," which means that it's really not legal to be receiving rent on a home that isn't livable).
Work out an agreement with the tenant about how to resolve the repairs.  Maybe it means hiring the tenant to do some of the work? (It's easiest for all if it's a separate contract)  Maybe it means letting them live in another rental unit while the problems get resolved?  Maybe it means helping them find a place to live in for a couple months while you're fixing the problem?  There are lots of creative solutions possible here.
Lower the rent for the time that the repair problem is present.  If you want a guideline, Madison General Ordinances have a chart for rent abatement that you might choose to follow.  To find it, go here, click on "Chapter 32 - Landlord and Tenant" and then scroll down to page 32-8 for the beginning of the chart.
Claims of constructive eviction are for serious "repair" issues. When housing counselors at the TRC talk about repairs, it can often be misleading for tenants.  We usually mean "anything which needs to be physically fixed." Here are some things that are "Repair" issues that might seem like they should be in a different category:

Infestations (bugs, rodents, vermin, raccoons, mean squirrels, bed bugs).
Heat (too cold in the winter is definitely a big livability problem, too hot in the summer is more debatable).
Mold.
Appliances, if they were provided with the rental unit.
The stuff you'd expect is here, too: plumbing, electrical, structural things.

The Leadership Mystique

A User's Manual for the Human Enterprise

Manfred Kets de Vries

FT Prentice Hall, 2001

Review

Business schools and shareholders focus so relentlessly on hard numbers and cold facts that it’s no surprise that data reigns supreme in the corporate world. But executives who downplay the importance of emotion and intuition do so at their own peril, management expert Manfred Kets de Vries convincingly argues. He offers a wealth of useful tips for leaders who are ready to reintroduce the human side, the soft side, to their organizations and their own lives. The author occasionally drops in stories and quotes from his clients, but his argument would have been bolstered by even more examples. getAbstract.com recommends this easy-to-digest volume to leaders who want to improve their interpersonal skills.

In this summary, you will learn

·        Why "soft" issues are so crucial to leaders

·        Why emotional intelligence is important

·        How to pursue work-life balance

Take-Aways

·        In the business world, hard data reigns supreme.

·        Incredibly important "soft" issues such as emotion and intuition are overlooked.

·        The corporate world has placed too much emphasis on the logical intelligence measured by IQ.

·        Emotionally unaware leaders fail more often. That’s the "failure factor" and emotional intelligence is the cure.

·        While companies give lip service to creativity, many employees find little place for true creativity in their cubicles - they relegate innovation to their off hours.

·        As the comic strip Dilbert illustrates, employees view their jobs as soul-deadening toil.

·        To avoid the Dilbert phenomenon, employees must achieve "flow" - that state of heightened concentration in which the work perfectly matches the person’s abilities.

·        Leaders who can’t change have "mussel syndrome:" they are stuck in one place.

·        Many hard-working people choose the "deferred-life strategy," in which they sacrifice personal pursuits for professional goals.

·        Instead, chose the "whole-life strategy;" pursue your professional and personal goals.

Summary

Emotional Intelligence and Leadership
Business leaders are trained to focus on hard data and cold logic. Left-brain types tend to think of emotion, intuition and other human factors as "soft" matters that can’t be measured and, therefore, don’t exist. A practical reason underlies this approach: personal, emotional issues are difficult to see, let alone manage and control. Yet these soft issues can prove quite hard indeed. Ignoring soft matters can kill deals and destroy careers, so understanding subjective issues is crucial to your success.

“Emotional intelligence plays a vital role in the leadership equation. It comes down to this: people who are emotionally intelligent are more likely to be effective as leaders.”

The concept of "emotional intelligence" arose once it became clear that a high IQ alone doesn’t guarantee leadership success. Leaders who understand their own motivations and who know what motivates their employees are more likely to succeed. The intelligence quotient measures logical and mathematical skills, abilities that do not guarantee management aptitude. Smart people don’t necessarily make good decisions and they often fall into the "intelligence trap" of justifying poor decisions. Also, high-IQ managers tend to be so skilled at criticizing others that they do that instead of focusing on more constructive activities.

“Positivism and objectivity prevail in the world of organizations. The credo is that what you can’t see doesn’t exist.”

So what is emotional intelligence? It involves three primary elements:

1.      Recognizing your own emotions - Executives tend to subvert their emotions. During their years climbing the corporate ladder, they discipline themselves to hide their feelings and portray themselves as they feel they’re expected to behave. They project the image of being team players and positive thinkers, even if they don’t feel that way. This leads to the creation of a "false self," a dangerous long-term situation.

2.     Managing your emotions - Some executives understand their emotions all too well and yet act on them in unproductive ways. If you react to feeling angry or frustrated by throwing phones, slamming doors or raging at subordinates, work on controlling your emotions. Such outbursts reverberate through your organization.

3.     Dealing with others’ emotions - First, learn empathy. This means you must look at the world through another person’s eyes. Once you can understand how others feel, you can begin to manage their emotions. One of the best ways to empathize is to master the art of "active listening." This requires you to listen more than you speak, and to participate fully in the conversation. The active listener watches the other person in the conversation for expressions and gestures. To deepen the conversation, the active listener asks questions such as, "What do you mean by that?"

“Many executives are astounded to discover how loyal, creative, vigorous and imaginative their employees are - except during the eight hours a day they’re on the job.”

A New Model of Leadership
As the importance of emotional intelligence gains recognition, organizations are changing. The old model followed the "three C’s:" command, control and compliance. The new paradigm focuses on the "three I’s:" ideas, information and interaction. Old model organizations were paternal and rewarded loyalty with life employment. That is no longer the case. Now, companies have a more "adult," less paternalistic relationship with their employees. People no longer expect life employment and are far likelier to switch jobs for better opportunities.

“Everyday life in some insurance companies and banks, for example, simply isn’t conducive to wonder, curiosity or joy. The lifeless quality of a moribund organization encourages executives to suppress their emotions - a process that takes a lot of energy.”

In this world, the old command-and-control style of issuing orders and expecting employees to follow them is disappearing. However, change is difficult and some people develop "mussel syndrome," that is, they latch onto a familiar rock and cannot move forward. Sometimes it is particularly hard to leave success behind, but don’t let a period of success lead you to failure.

“Many people who take the career track seriously opt for...the deferred-life strategy: they plan to work like the dickens today so that they can enjoy the nice house and fine car and cushy retirement later.”

Today’s effective CEOs communicate a vision. They act as "chief storytelling officers," and use stories to motivate people. In this model, CEOs are like actors who show an example and set a tone in their organizations.

“Achieving balance between work and personal life clearly belongs at the top of the list of things that are easier said than done.”

The end of the old employer-employee contract gave rise to the "Dilbert phenomenon." The popular comic strip focuses on cubicle dwellers who find their talent and motivation sapped by bureaucratic lunacy. Even as new-model employers increasingly value ideas and creativity, many front-line employees find that the corporate world can be stultifying, as portrayed in Dilbert. They save their creativity for their hours off the clock. In fact, executives often are stunned to learn how creative their employees are in their personal lives. You might ask, "So what?" No one said working in a corporation is an avenue to beauty, delight and happiness. The problem is that an emotionless work environment forces executives to disguise and ignore their feelings. Suppressing emotions is unnatural and consumes energy you could use more productively. Disguising your emotions ultimately can lead to antisocial behavior.

“Strategy and organizational structure can be influenced strongly by the personality of the leader.”

However, the paternalistic model is also out of date. Today, workers govern their careers themselves and many strive to become more employable, instead of expecting to stay in one job for a long time. Your challenge as a leader is to forge relationships anyway, despite employees who are suspicious or who keep an eye on the exit.

“Organizational transformation can’t occur without some ’pain’ in the system. Who wants change when things are going well?”

While the Dilbert phenomenon focuses on middle managers, those lower on the corporate ladder have some consolation: they have plenty of peers to talk to and the presence of equals creates a de facto support network. When you’re the boss, things can be tougher. This "loneliness of command" concept means that the CEO is almost forced to be aloof. For the CEO, the organization no longer contains equals, only subordinates.

“Organizations are like automobiles. They don’t run themselves, except downhill.”

Finding Work-Life Balance for Yourself and Your People

Psychologist Mihaly Csikszentmihalyi has written extensively about the concept of "flow," the lost-in-the-moment feeling you get when you are using all of your powers of creativity and analysis to accomplish a task. This combination of concentration and exhilaration requires enough of a challenge that you are fully engaged, but not so much challenge that you are overcome by anxiety.

“Change isn’t a simple process, neither is it a comfortable one.”

Finding this balance - enough stimulation and challenge, but not too much - requires balance in your personal life, as well as your job. This equilibrium is difficult to achieve. Indeed, many successful people pursue the "deferred-life strategy:" work hard now and enjoy the fruits of your labor later. This never works as you might hope. Workaholics wind up as strangers to their spouses and children, full of regret. Turn toward a wiser strategy, the "whole-life approach," in which you pursue personal and professional fulfillment at the same time. Shifting gears from hard-driving striver to nurturing partner, parent or friend is not easy. Giving orders might be your natural state at the office, but it won’t work in your household. Instead, when you are at home, engage fully with your family.

“IQ isn’t everything. A person who breezes through college with straight A’s can still flunk life.”

Many CEOs wait for a major life event to examine their personal lives. The trigger could be a health scare such as a heart attack, or a personal calamity such as a divorce, or maybe simply the kids leaving home. Whatever the impetus, the executive suddenly realizes that his or her intense focus on work has meant sacrificing personal relationships and interests, and begins to reexamine what’s important. Often, the hard-driving executive is filled with regret about lost opportunities. The side effects of this unbalanced life can include alcoholism and depression.

“We all need to be architects of our own fate, the authors of our own script. If we turn that scripting over to others, we’re not really living, we’re just playing a part.”

How to Get a (Whole) Life
Here are some tips for following the whole-life strategy rather than the deferred-life strategy:

? Set life goals - Determine what’s important to you; make time for your priorities.
? Spend time alone - This lets you think about your priorities.
? Measure your life in quality, not quantity - It’s not how much but how good.
? Drop the superhero act - Don’t set unattainable goals.
? Say no - And don’t regret it.
? Devote plenty of one-on-one time to your family - Really get to know them.
? Make time for recreation - And include music, art and nature in your life.

These goals are a good starting point, but to keep your subordinates off the road to workaholism and burnout, you must also translate your new found work-life balance to your employees. You cannot force them to pursue balanced lives, but you can create an environment where they feel motivated and inspired. Cultivate these five attributes:

1.      A sense of meaning - The most effective leaders are visionaries, and they clearly communicate this vision to their people. Employees who are working toward a clear goal will have a deeper sense of meaning in their work lives.

2.     A sense of self-control - Empower your people. Give them a sense of self-government. You want them to think of themselves as decision-makers, not pawns in a game someone else controls.

3.     A sense of power - Your people must feel that they can make a difference in your organization, that their voices will be heard.

4.     A sense of competence - By encouraging employees to learn and develop, you allow them to reach their potential.

5.     A sense of shared values - Foster the values of team play, honesty and respect.

Changing Broken Organizations
Many organizations don’t value meaning and balance. They don’t create awareness of those priorities in their employees. Problems in organizations start at the top; the CEO sets the tone and conveys his or her dysfunction down the ranks. Many leaders generate their own "failure factors." The levels and types of dysfunction vary, but common problems include:

? The drama king - This CEO feels grandiose and entitled to power. He or she craves attention and excitement, and tends to concentrate too much power in the top spot.
? The paranoid - This CEO is suspicious and distrustful. The organization tends to centralize power and to over-analyze decisions.
? The avoider - This leader tends to be detached and antisocial, traits that create an organization that lacks warmth, ignores outside forces and is often too introverted.
? The depressive - This leader lacks self-esteem and tends to be passive. The resulting organization is bureaucratic, inflexible and uncommunicative.
? The compulsive - This dominant CEO is dogmatic and rigid. The compulsive is a control freak whose subordinates often feel insecure.

CEOs also can manifest other problems. For instance, there’s the hypocrite who says one thing and means another. This is the boss who asks for "constructive criticism" and then punishes those who answer candidly. Changing such dysfunctional patterns requires courage, commitment and emotional intelligence. After all, no one likes change. It’s difficult and uncomfortable. Typically, change comes when things are not going well and the organization or the individual sees the need for a new approach. To tackle the challenge of personal or organizational change, remember the five Cs that invariably mark the process of transformation:

1.      Concern - Because change is so difficult, people tend to deny that it is necessary. Ultimately, some problem or crisis forces their acknowledgment that change is in order. This sense of frustration is the start of the process.

2.     Confrontation - Recognizing the need for change is one thing, but it takes confrontation with a major event, such as a divorce, to spur action. This external threat makes the status quo seem more painful than change.

3.     Clarification - At this stage, re-evaluate priorities. Shedding an alcohol addiction offers a meaningful parallel: alcoholics must publicly state their willingness to quit drinking. Saying the goal aloud helps boost the momentum behind the change.

4.     Crystallization - Now you must assemble the details of implementing the targeted changes. This is truly a new beginning, as you gain insight and self-awareness.

5.     Change - You have committed to a true transformation. New priorities become a part of your makeup.