(dissenting).
I respectfully dissent. The legal 'theories that should control the resolution of the critical and delicate issue presented in this case are absent from the analysis adopted by the majority. Consequently, many dangerous traps are set by the majority opinion that will snare unsuspecting attorneys and clients — as done in this case — and unnecessarily erode one of the most noble and venerable principles of our legal system.
The attorney-client privilege is -recognized as one of the pillars of our system of justice. Over the centuries, only a few carefully crafted exceptions have surfaced. See Hickman, 329 U.S. at 510-12, 67 S.Ct. at 393-94, 91 L.Ed. at 462-63. These *644exceptions have been limited due to the detrimental effect they have on attorney advocacy. See id.
One exception, now widely recognized, exists when two or more persons jointly consult with the same attorney to act for them in a matter of common interest. See City of Coralville, 634 N.W.2d at 677-78. See generally 1 Rice § 4:30-:33, at 152-90 (providing a general overview of the joint client exception); Edward J. Imwinkelried, The New Wigmore: Evidentiary Privileges § 6.13.2(b), at 956-58 (Richard D. Friedman ed., 2002) (same); 3 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 503.21[1], at 503-67 to -68 (Joseph M. McLaughlin ed., 2d ed.2004) (same). This exception is based largely on the concept that joint clients have no intention or expectation to keep their communications confidential as between themselves. See City of Coral-ville, 634 N.W.2d at 677.
It is clear the joint client exception is sensitive to the rights and interests of all of the parties in the mix, including the other client who has his or her privilege invaded by the exception. For this reason, the exception only applies when a clear justification exists, and when all clients should understand that disclosure would occur because of the multi-party relationship. Disclosure is based primarily on the rights of clients who have entered into an attorney-client relationship.
On the two prior occasions we have permitted discovery of communications between an attorney and a client under the joint client exception, we have followed an analysis that considers all the surrounding circumstances to determine the existence of the essential relationship between an attorney and a client. In Henke, the attorney hired by the insurer actually defended the insured in litigation that included a trial. 249 Iowa at 617, 87 N.W.2d at 923. The relationship created between the attorney and insured was purposeful, known, and very real. It involved a relationship permeated by actions that gave rise “to the usual confidences of client and attorney.” Id. at 618, 87 N.W.2d at 923. In City of Coralville, we again employed the surrounding circumstances analysis to determine when and if an attorney-client relationship comes into existence. 634 N.W.2d at 679. In doing this, we rejected the notion that an attorney-client relationship is created solely because an attorney agrees to represent another. See id. Instead, the attorney-client relationship is not created until all of the circumstances and factors reveal a commitment to a relationship marked by “the usual confidences of client and attorney.” Henke, 249 Iowa at 618, 87 N.W.2d at 923. Thus, we did not immediately recognize an attorney-client relationship between the police officer and the attorney retained by the city. City of Coralville, 634 N.W.2d at 679. No attorney-client relationship initially existed even though the police officer apparently wanted the city to obtain an attorney for him, was told the city would provide an attorney, and the attorney was employed by the city to represent the police officer. Id. at 676, 679. We did not recognize the exception to apply until it became clear that the attorney had taken sufficient action to show an intent to represent the police officer. Id. at 679.
The important point in Henke and City of Coralville is that an attorney-client relationship is not built on appearances, but substance. It is built on what an attorney-client relationship is and has always been, a close relationship of trust and confidence as shown by the circumstances. See Henke, 249 Iowa at 617-18, 87 N.W.2d at 923.
The majority acknowledges that an attorney-client relationship requires the at*645torney to undertake to represent the purported client, and requires the purported client to accept the attorney’s services. Prom that statement of law, it concludes Thill undertook to represent Brandon by naming Brandon as the plaintiff in West Bend’s subrogation action against the tort-feasor. It further concludes Brandon accepted Thill’s service when Brandon’s attorney informed West Bend in the March 7, 2001, letter that Brandon did not intend to pursue a lawsuit against the tortfeasor, and if West Bend wanted to pursue the tortfeasor “such action should be brought by West Bend through its subrogation rights' as set forth in ... the policy.” Brandon’s attorney then concluded the letter by indicating that Brandon would cooperate “with any subrogation case” as required by the policy. I do not believe either of these events supports an attorney-client relationship.
First, Brandon clearly acknowledged that West Bend sought to pursue a subro-gation claim. A subrogation claim, in the context of insurance law, is a claim by the insurer against the tortfeasor responsible for the loss to the insured. Allied Mut. Ins. Co. v. Heiken, 675 N.W.2d 820, 824 (Iowa 2004). A subrogation claim is not a claim by the insured. Thus, placed in the proper context of the law, the March 7 letter expresses the opposite meaning given to it by the majority. Brandon’s attorney was simply informing West Bend that Brandon had no intention to pursue her personal injury claim against the tortfea-sor and if West Bend wanted to protect its subrogation interests against the tortfea-sor, it would need to pursue its own claim. This position is consistent with our law. Our law permits a partially subrogated insurer to assert a subrogation claim' directly against a tortfeasor when the insured is unwilling (or unable) to pursue a claim against the tortfeasor for the entire loss. Farm Bureau Mut. Ins. Co. v. Allied Mut. Ins. Co., 580 N.W.2d 788, 789 (Iowa 1998). Thus, the claim in this case was entirely West Bend’s claim, not Brandon’s, and Brandon’s decision not to pursue her own, independent claim cannot be construed as assent for Thill to represent her, or to represent her in whatever interest she could ultimately acquire as a result of the subrogation action.
The same is true with the majority’s claim that the cooperation clause of the insurance policy required Brandon to assent to the representation. I think insurance defense attorneys in this state will be shocked to learn that the contractual duty of an insured to cooperate with the insurer when the insurer pursues its subrogation rights means the insured agrees to enter into an attorney-client relationship with the insurer’s attorney. None of these events establishes assent to an attorney-client relationship.
Second, Thill never undertook to represent Brandon by pursuing West Bend’s subrogation claim against the tortfeasor in the name of the insured. Under Illinois law, a subrogation claim based on an insurance policy may be brought in the name of the insured if the insured has at least a de minimis interest in the lawsuit. Orejel v. York Int’l Corp., 287 Ill.App.3d 592, 222 Ill.Dec. 811, 678 N.E.2d 683, 692 (1997). However, the interest of the insurer-subro-gee cannot be concealed, and the insurer must either be named as á plaintiff or disclosed in the pleadings or by affidavit as the real party in interest. Id. Nevertheless, Illinois law clearly authorizes an insurer to use the insured’s name when pursuing a subrogation claim. This statutory authorization certainly does not create an attorney-client relationship with the insured, but primarily serves to minimize the existence and impact of insurance. See Nitrin, Inc. v. Bethlehem Steel Corp., 35 Ill.App.3d 577, 342 N.E.2d 65, 75-76 (1976) *646(motion to prohibit mention of insurance coverage properly denied when insurer was real party in interest). Moreover, an attorney-client relationship is not established merely because a person may have an interest in a lawsuit.3 Finally, even if Thill may have improperly used Brandon’s name in the lawsuit, such a mistake would not create an attorney-client relationship. The mere fact that Brandon may have had an interest in the litigation does not mean Thill represented that interest.
It is abundantly clear that the facts of the case show Thill never undertook to represent Brandon. Brandon never agreed to have Thill • represent her and there were no other indicia of an attorney-client relationship. Brandon and Thill never communicated with each other personally and Brandon was at all relevant times represented by another attorney, who eschewed any thought of having Brandon pursue a claim against the tortfeasor. Moreover, neither Brandon nor Thill maintained a subjective belief that an attorney-client relationship had been established. See 1 Rice § 4:31, at 159-60 (listing relevant factors to determine the existence of an attorney-client relationship in the joint client context). Only when Brandon later sought discovery from West Bend did she claim the existence. of an attorney-client relationship with West Bend’s attorney. Until that time, the existence of an attorney-client relationship between Thill and Brandon was never contemplated or imagined.
The majority looks beyond the reality of the circumstances of this case and transforms the joint client exception from a fact-based analysis of a relationship into a blunt inquiry into the existence of a legal interest a person may have in a lawsuit brought by an attorney on behalf of another. It declares the existence of an attorney-client relationship based on the manner in which the lawsuit was brought and the nature of the lawsuit itself. It relies on what could have been, not on what actually occurred. This is a grand departure from our prior cases, as well as the approach followed in other jurisdictions. See Henke, 249 Iowa at 617, 87 N.W.2d at 923 (“It is no answer that under the contract the insured agrees to cooperate and aid the insurer’s attorney.”); see also 1 Rice § 4:31, at 159-60. It places appearances above substance, and serves only to punish a lawyer and to unjustifiably invade the sanctity of the lawyer’s relationship with the other innocent party. “The nature of the relationship, not the nature of the cause of action,” is the controlling factor. Palmer by Diacon v. Farmers Ins. Exch., 261 Mont. 91, 861 P.2d 895, 906 (1993).
The majority has also twisted the presumption we established in Henke relating to the filing of an appearance by an attorney, and utilizes this new presumption to bypass any serious consideration of the facts of the case that clearly dispel any notion of an attorney-client relationship between Thill and Brandon. In Henke, we said an attorney-client relationship is presumed to exist when a person knowingly assents to the appearance in court of an attorney on his or her behalf- Henke, 249 Iowa at 617, 87 N.W.2d at 923. The majority simply drops the knowingly assents to the appearance prerequisite, and declares that a presumption is created when an attorney enters an appearance in court on behalf of another, which only then may *647be rebutted by evidence that the client did not assent to the appearance. This change in the law is made without any acknowl-edgement or explanation. We should not change legal principles in such a manner.
This case is not about filing an appearance on behalf of Brandon. It is about an attorney filing a subrogation claim against the responsible tortfeasor on behalf of an insurance company, using the insured’s name as the plaintiff as authorized by law. It is not about the creation of an attorney-client relationship. An attorney-client relationship is not artificial and detached, but is derived from conduct and intention signifying a relationship of trust, confidence, and devoted service. It requires an attorney to understand the representation has been undertaken, and for the client to accept receipt of services. See id. at 617-18, 87 N.W.2d at 923. These matters are absent in this case.
. I acknowledge that an attorney-client relationship between the insurer’s attorney and the insured could develop in a subrogation action. However, it would develop based upon the facts of the relationship and the extent of the actual claim asserted, not the mere existence of a subrogation claim naming the insured as the plaintiff.