concurring in part and dissenting in part.
I concur in Part II of the foregoing opinion holding that this court has jurisdiction to entertain the appeal and denying plaintiff’s motion to dismiss.
Although I am unable to disagree with the well-written exposition of ethical principles in Part III of the opinion, I am unable to agree with the result reached in that part of the opinion and respectfully dissent.
There is no reason for thinking that Shakespeare was advancing a novel thought when one of his characters placed as a first priority that of killing all the lawyers. While this would seem to be visiting the ultimate penalty on the members of the profession, the January, 1978, issue of the American Bar Association Journal which came to my desk as this dissent was being prepared stated (at p. 35) that many observers feel that society is getting more cynical about lawyers and other professionals, and that a pollster says lawyers have a bad image.
While this cynicism and poor image is not probably universally shared and certainly ignores the public service performed by lawyers in all governmental aspects as well as the gratitude of people whose entanglement in legal difficulties has been obviated by those in the profession, nevertheless, those of us of the bench and bar must be constantly aware of what is a frequent attitude and affirmatively endeavor to eliminate those factors which have justifiably caused the status of disrepute. Indeed, we of the bench would be remiss in our obligation to the public if we were to approve conduct diluting a requirement of adherence to the highest ethical standards. Nevertheless, we should also be aware of the fact that frequently in the quest for the attainment of a goal for human conduct, zealousness, unmodified by objective evaluation, can cause the pendulum to swing too far, a result which I think has occurred in the present case, by both the district court and the majority of this court adopting what amounts to a per se rule.
I
Turning to some particular aspects of the majority opinion, I note the following:
*400(1) The majority opinion refers to the policy encouraging full and frank discussion between an attorney and his client which requires that the client have complete faith that his legitimate secrets will never be used against him. No one can quarrel with this as a principle. I fail, however, to discern its applicability in the present case. The defendants’ motion explicitly specified that the subject work product did not contain or reflect any confidential information obtained from the Trust. Instead it appears quite clear that what was involved here was a routine, tedious analysis of loan files relating to some 300 complex transactions. This work would appear to be of a type which any competent lawyer by spending the substantial time which would be required could accomplish just as well as did Foley & Lardner. The defendants are merely attempting to avoid what appears to me to be totally unnecessary duplicative work. The only apparent advantage I have been able to see that will accrue to the plaintiff is that of harassment of an opponent in litigation, a purpose scarcely qualifying for a judicial imprimatur.
(2) The majority opinion proceeds, however, notwithstanding that there is no apparent basis in the record for invoking the protective cloak of confidentiality, or perhaps because of that lack, to state that it is unnecessary to establish that the disqualified lawyer actually possessed confidential information of the former client, such possession being presumed. Again this seems to me to miss the issue because we do not have a situation involving the transfer of confidential information but only post-relationship lawyer analysis and summaries of loan files, which work was of such monumental proportions that Foley & Lardner had a team of 15 lawyers assigned thereto for more than a year prior to that firm’s disqualification. Because the present defense attorneys can, at a great loss of time and money, duplicate this work, the net result will be only that the plaintiff has a gamesmanship headstart in the litigation. Of even more significance, however, in my mind, to the “presumed” portion of the majority opinion is that quite obviously an irrebuttable presumption has been created, or a per se rule, that whenever cause of disqualification exists any lawyer work thereafter is lost work irrespective of its nature or any other pertinent factors. Irrebuttable presumptions, by their very nature are arbitrary and unreasonable and the denial of a fair opportunity of rebuttal is generally violative of principles of due process. Vlandis v. Kline, 412 U.S. 441, 446, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973); Cleveland Board of Education v. LaFleur, 414 U.S. 632, 644-45, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974). I see no more reason for conclusively presuming that the work product here involved should not be used because it involved confidential material than to presume conclusively that a pregnant teacher after the sixth month is incapable of teaching. If confidentiality is involved in this case as a predicate for decision, and I have difficulty reading the majority opinion otherwise, then it is because confidentiality has been presumed, which presumption the defendants effectively have rebutted on the record before us.
(3) The majority opinion, by way of flat statement, says that Foley & Lardner’s analyses and legal memoranda concerning the subject loan files are too closely connected with disqualified counsel to be considered unobjectionable. Of course, the close connection exists, Foley & Lardner lawyers did the work, but I am unable to tell how the majority progressed from that obvious fact to the conclusion that the work product is objectionable. Even if we should separate analyses from legal memoranda on the basis that the latter somehow involved more judgmental or tactical factors I have yet to have it demonstrated in this case that either the analyses or the legal memoranda are not capable of being reproduced substantially as Foley & Lardner did by the new counsel doing the same extensive lawyer work.
(4) The majority opinion notes that the use of pleadings, interrogatories, answers to interrogatories, and other pretrial documents prepared by Foley & Lardner is not contested. It would appear if the work of *401that law firm in one respect is tainted that the infection should not stop short of including all materials. The striking of the pleadings and similar materials, and having the parties start the litigation all over again, would, of course, lessen the gamesmanship headstart that the plaintiff has presently achieved.*
(5) The majority opinion, quite understandably, has difficulty in distinguishing E. F. Hutton & Company, Inc. v. Brown, 305 F.Supp. 371 (S.D.Tex.1969), and therefore falls back upon a flat refusal to follow the Hutton conclusion. That case, of course, as the defendants concede, is not squarely in point. It is significant, however, in that the court there did analyze the factual aspects of the work involved, rather than resting on any type of an irrebuttable presumption, and this significance is strengthened in view of the fact that in Hutton a claim was made that the disqualified attorneys’ files contained privileged information, while the plaintiff here does not assert that Foley & Lardner’s work product has any information protected by the attorney-client privilege.
(6) The majority opinion implicitly appears to have some concern about the gamesmanship aspects here involved, referring to the defendants’ contention that plaintiff caused Foley & Lardner to generate the work product by its predisqualification interrogatories, but quells any doubts by finding the issue not dispositive of this case in the light of the strong public interest in preserving client confidences and the integrity of the litigation process. Considering those aspects separately it has already been observed in this dissent that the confidentiality aspect really is nothing more than a straw man which should be appropriately eliminated. The integrity of the judicial process is, of course, another matter and I recognize that an argument to the effect that the slate should be wiped clean might have some prima facie appeal, particularly in egregious situations such as the use of confidential information in work performed during the disqualified period, the knowledgeable participation of the client, or other unconscionable conduct, none of. which apparently exists here. Here it is the client who will suffer by additional cost for having the identical work done twice, and the litigation will also suffer by virtue of the inherent delays in that same process. Also, the slate, in any event, is not being wiped clean because the plaintiff is willing to let pleadings, answers to interrogatories and similar materials go unchallenged. Finally, if we are to speak of integrity of the litigation process, it would seem that it would be most appropriate to find dispositive significance in the delay in moving to disqualify Foley & Lardner until after the completion of certain discovery aspects of plaintiff’s trial preparation.
II
Perhaps an initial difficulty was interjected into, the present issue by the use of the term “work product” by the defendants in their motion. The landmark case on the subject, of course, is Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), which refers to the generic tag of work product as being apt though rough. Id. at 511, 67 S.Ct. 385. However imprecise the term may have been, Hickman spawned a multitude of cases and extra-judicial writing. See the 74-page summary in Annotation, Development, since Hickman v. Taylor, of Attorney's “Work Product” Doctrine, 35 A.L.R.3d 412 (1971).
There probably is little question that what Foley & Lardner produced by way of analysis would fall within the definition by *402most courts of “work product,” although in view of the underlying premise of federal discovery procedures of eliminating the sporting element of a trial, i. e., surprise, I find myself in agreement with the limited scope laid down by Judge Campbell for that very reason in Richards-Wilcox Manufacturing Company v. Young Spring & Wire Corp., 34 F.R.D. 212, 213 (N.D.Ill.1964):
[A]n attorney’s work product can generally be defined to encompass writings, statements or testimony which would substantially reflect or invade an attorney’s legal impressions or legal theories as to a pending or reasonably anticipated litigation.
Assuming, in any event, that the Foley & Lardner work, having been performed in preparation for trial, constituted “work product” as that term is generally defined, we nevertheless have an entirely different context in the present case than is involved in the numerous cases dealing with the subject, which are concerned with the extent to which material in the attorney’s file is discoverable by his or her opponent. Hickman makes it clear that the protection given to the work product is not because of the attorney-client privilege, 329 U.S. at 508, 67 S.Ct. 385, but the rationale rather is “the general policy against invading the privacy of an attorney’s course of preparation.” Id. at 512, 67 S.Ct. at 394. Indeed, it has been stated that to the extent the work product doctrine is a privilege it is the privilege of the attorney and not that of the client. 35 A.L.R.3d at 423. Even though there is a close relationship between the work product doctrine and the attorney-client privilege, id., here the work was not performed for the plaintiff and rather obviously the defendants are imposing no objection to the use of the material. Further, Foley & Lardner are not objecting.
What I am saying at this point is not that the principles developed in the work product discovery cases should be considered but rather that they should not be. Nevertheless I am not able to discount that the result reached by the majority may have been influenced by the large body of law that holds work product to be sacrosanct in the discovery situation. The reasoning and result of the discovery cases are clearly not applicable here.
While, as is quite apparent from this dissent, I would have held that the present defense counsel should have been permitted to receive the work product generated by Foley & Lardner, I have, in accordance with the record presented to us, gone on the assumption that that work product contains no information derived from a former confidential relationship between Foley & Lardner and the plaintiff and, further, is basically of the type of documentation which the successor lawyers can themselves produce. I would assume that both Foley & Lardner and the successors would not give or receive any other type of material. This assumption appears to me to be entirely warranted. If we assumed anything else this entire aspect of the litigation is an exercise in futility because if the attorneys involved contemplated transferring any improper information there would have been little point in seeking court authority in the first place. Those not willing to have honored ethical precepts could have initially resorted to clandestine oral conferences.
Finally, I note that the motion also asked, in addition to the actual work product, for an explanation of said work. I would, while granting the motion, curtail its grant to the limited extent reasonably necessary to the transfer of the work to the new counsel. See Hutton, supra, 305 F.Supp. at 377. I understand the defendants are seeking nothing more than an explanation of what work has been done to the point of new counsel’s takeover.
I note also the possibility that a gamesmanship advantage somewhat different from that 1 have described will result from the majority’s decision here. Plaintiffs counsel has offered to waive objections to defendants’ use of the work product in question if plaintiff, which could not have discovered the material, is also allowed to use it. The untenable choice created by the majority for defendants between incurring huge costs for totally duplicative legal work or accepting this offer could, then, produce a windfall to plaintiff of a legal analysis which it, of course, can duplicate, just as new counsel for defendants can, but only with a considerable expenditure of time and effort.