dissenting.
In almost every instance, in my view, were a lawyer asked to disclose what advice he gave his client, a Missouri trial judge would sustain the objection to the question, based on privilege. I believe law practice has been conducted on this basis in Missouri for years, and I see nothing in State ex rel. Great American Insurance Company v. Smith, 563 S.W.2d 62 (Mo. banc 1978) which will, as a practical matter, change the situation.
But there are a few situations where a lawyer’s advice is not privileged unless it fits the limitations of the statute, § 491.060, exactly. One such situation is where the insured is suing on the policy, as here, and is claiming damages for vexatious refusal to pay. Suppose, for example, that Mr. Ris-jord’s three letters advised relator not to pay the claim because he mistakenly believed the proof of loss was filed a day late and the insurer acted accordingly. Why shouldn’t the insured be able to discover this fact and use it against the insurer? What is there about permitting discovery of this fact which would in any way hinder prospective clients from consulting lawyers and making a complete disclosure of the facts to counsel?
The proposed opinion, however, makes everything that takes place from lawyer to client privileged. All communications, not just advice, are to be protected and privileged.
The proposed opinion cites Bussen v. Del Commune, 239 Mo.App. 859, 199 S.W.2d 13 (1947) as supporting the proposition that the determinative issue with respect to whether or not a communication is privileged is whether the relationship of attorney and client existed between the parties at the time of the communication with reference to its subject matter. Since the relationship did not exist in the Bussen case, it was not a privileged communication; ergo, since it does exist in the present case (Risjord concededly was attorney for rela-tors), the communication is privileged.
*388This view ignores the important fact that the communication under examination in the Bussen case and the context, therefore, in which the court’s language must be considered, was a communication from the alleged client to the lawyer, which is why, under the statute (then § 1895, RSMo 1939) it would have been privileged had the attorney-client relationship been found to exist. Mrs. Del Commune was urging that “the note indicates on its face that it was addressed to Mr. Bovarie in his professional capacity, and that it consequently constituted a privileged communication between attorney and client”, 199 S.W.2d at 20. The Bussen decision is not authority for the proposition that if the attorney-client relationship exists, any communication by the attorney to the client is privileged, as contended by the proposed opinion in the present case. The Bussen case is authority only for the proposition that if the relationship does exist, then a communication by the client to the lawyer is privileged, but that is not what we have before us at the moment.
The proposed opinion also relies heavily on the law review article in 24 Ohio St.L.J. 1, written in 1963, by Professors Sedler and Simeone (now a judge of this court) which frankly states the view that anything that materially interferes with the attorney-client relationship is to be restricted or eliminated and anything that fosters its success is to be retained and strengthened and expresses concern that the “preserve” of lawyers is constantly being entered by other professions. In my opinion, our view as judges must be broader than the protection of a “preserve”. Not long ago this court saw fit to create an “insured-insurer” privilege. State ex rel. Cain v. Barker, 540 S.W.2d 50 (Mo. banc 1976). Now we are about to expand greatly the attorney-client privilege. We keep making it harder for the facts to be ascertained. We have gotten along all right in Missouri for well over one hundred years with the attorney-client privilege as it was until the present decision. There is no need to broaden it at this late date. It may be, as the above article states, that “the heavens will not fall if all relevant and competent evidence cannot be admitted”, id. at 3, but by the same token, people will not stop consulting lawyers if the attorney-client privilege is not broadened, either.1
The broadened scope of attorney-client privilege established by the proposed opinion will dismantle a good part of the scope of Missouri discovery. Under rule 56.-01(b)(1) discovery is limited to matters “not privileged.” Suppose Mr. Risjord, or one of his lawyer associates, had made the factual investigation and reported it to the client instead of its having been made by General Adjustment Bureau or the Federal Bureau of Investigation. Under the proposed opinion all this factual material, clearly discoverable up till now, would become privileged and not discoverable. The proposed opinion states that it does not mean that factual information can be made privileged by being recited by the lawyer to the client and gives the illustration of the GAB investigation and reports and the FBI investigations and report, both of which were furnished plaintiff through its discovery efforts. But, as said above, these investigations and reports were made by third parties and the fact that they were discoverable in this case does not mean that factual investigation made by the lawyer will be discoverable from now on. Lawyers are being presented with a legitimate way to avoid disclosing what has up till now been discoverable facts.
Rule 56.01(b)(3), the work product rule, will not help. For it to apply the material must be “otherwise discoverable under subdivision (b)(1)” and under the latter the material to be discovered must be “not privileged.” Under the proposed decision work product can now easily be made privileged and hence immune from discovery. I am unable to predict exactly what methods and procedures will be used by resourceful lawyers to avail themselves and their clients of the discovery insulation now made possible, *389but I am sure that the ingenuity of the bar will be equal to the occasion.
I am in complete accord with Canon 4 of rule 4 that a lawyer should preserve the confidence and secrets of a client. A client expects a lawyer to keep his affairs in confidence and not to talk or gossip about them. A lawyer with a loose tongue is an abomination. But that is not the problem before us and the fact that the ethical lawyer does not talk about his client’s confidences does not answer the present problem. We have here a question of discovery, where the courts are being asked to order production of what may be highly relevant evidence, not heretofore privileged, and which cannot otherwise be brought to light.
It is conceivable that communications or advice from the lawyer to the client might be pieced together to discern communications made by the client to the lawyer. In such a case, the lawyer to client communications would be privileged under the present statute, § 491.060, which forbids disclosure by the attorney of any communications made to him by the client. The statute adequately protects against indirect as well as direct disclosure of the client’s communications and there is no need for us, ex gratia, to expand the rule so as to cover, carte blanche, everything the lawyer passes to the client. In the instant case, there is no cause to fear revelation of any communications by the client in the three Risjord letters under consideration by a “piecing together”, if Judge Smith has read them correctly. Relators do not dispute the accuracy of Judge Smith’s findings as to what the letters contain. Relator’s position is that even so the letters are privileged.
I would rely on Judge Smith’s appraisal of the situation as set forth in his letter to counsel (which up until now is in full accord with the Missouri law on the subject) and would permit him to deliver copies of the three letters to plaintiff’s counsel.
I respectfully dissent.
. The present statute, § 491.060, on attorney-client privilege, has remained unchanged ever since it first appeared in RSMo 1855, Ch. 168, § 6, p. 1577.