(Assigned) 1 , joined by Justice HECHT and Justice RAMEY (Assigned)2 dissenting.
The legal profession recognizes few duties more important than protecting a client’s confidences. Because the Court’s opinion opens the door to disclosure of those confidences, I dissent.
I agree with much of the Court’s opinion. I agree Relators have not waived
their objection to transfer of work product (Part II). I agree Ms. Anderson’s attorneys should get any documents filed by or exchanged among the parties, subject to Relators’ right to seek protection under current rules (Part III). See Tex.R. Civ. P. 76a, 192.6. I agree that disposition of the remainder of a disqualified attorney’s files depends upon the reasons for disqualification, and that the reasons in this case justify restriction (Part IV). I part company with the Court only with respect to the extent of that restriction.
The Court’s analysis of the few precedents that exist on this question is fair and thorough. I agree we should reject those precedents that require a balancing test or place the burden on a former client to point out confidences for protection (Parts V[B] & [C]). I disagree, however, with the Court’s decision to reject the rule adopted by most courts (Part V[A]) in favor of one that apparently has never been tried by any court in the country.
I believe this rule will prove to be impractical, calling as it does for the parties to conduct piecemeal disputes about confidences they cannot disclose in documents they cannot see. I believe it unfairly shifts costs from the party who should bear them to others who should not. Most importantly, I believe the rule may prove to be more porous than protective in the critical area of trust and confidence between attorney and client.
I
The question in this case is not whether a disqualified attorney may transfer files that do not reveal a former client’s confidences. If the files contain nothing confidential, then of course there is no harm in transferring them. But how can one be sure?
*523Client confidences are not the same as attorney work product. A client confidence is any secret disclosed by a client to a lawyer. Tex. Disciplinary R. Profl Conduct 1.05(a). It need have nothing to do with a prior representation, or even with the law. It may be the name of a company targeted for takeover, or the price a client would pay for real estate. It may be a client’s plans for marriage, for divorce, or for children. Even the most important client confidence may be no more than a name, a number, a list, a diagram, a password, or a plan. It may be as terrible as an admission of crime, as delicate as a family secret, as fleeting as an idea.
Because it is impossible to list every kind of client confidence, it is impossible for a trial judge to recognize and expunge every confidence from work product. Deposition summaries or research memos may be unlikely to contain client confidences, but only if that’s all they are. While it is easy to imagine documents that probably contain no confidences, it is just as easy to imagine situations where they do. The difficult question presented by this case is whether to transfer files where, given the circumstances of disqualification proceedings, one cannot be sure.
II
The Court recognizes, even expects, that confidences will be reflected in a disqualified attorney’s files. The Court also recognizes that transfer of those confidences would defeat the purposes underlying the disqualification. But it stops short of the one measure that would practically and effectively accomplish those purposes, namely, barring the transfer of work product to successor counsel.
When a tainted lawyer moves to a new firm, that firm may no longer work on the case. Tex. Disciplinary R. Profl Conduct 1.09(b). The new firm is not allowed to wall off the tainted member or certain parts of the litigation. Henderson v. Floyd, 891 S.W.2d 252, 253-54 (Tex.1995). The same rule should apply when it is the client’s file rather than the client’s lawyer that moves to a new firm. Why should a film be disqualified if it takes on the lawyer, but not if it takes on the lawyer’s work product?
The Court adopts a different rule here, on the basis that all work product is unlikely to be tainted. Hopefully, the same might be said of lawyers. Some lawyers who switch sides might not know any client confidences, and those who do may be unlikely to share them. Nonetheless, a bright-line rule applies to lawyers, because it is impossible for a former client to prove what did or did not go on within the walls of a hostile firm. Henderson, 891 S.W.2d at 254. Former clients face the same obstacles with respect to work product they are not allowed to see.
To be consistent, the same rule should apply to work product that applies to lawyers and firms. A disqualified law firm should not be able to do indirectly what it cannot do directly. Only a complete bar on transfer would treat lawyers, their firms, and their work product the same.
This does not mean work product cannot be re-created. It must, however, be generated from some source other than the tainted lawyer’s files. To the degree this requires wasteful duplication, it is a price that sometimes must be paid in a system of justice that depends to a large degree on its integrity for its power. See, e.g., Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939) (prosecutor may use neither evidence improperly obtained nor the fruits of the poisonous tree).
Ill
A
The Court hopes to screen out confidential information by document inventories and in camera inspections. Given the difficulties inherent in disqualification cases, I believe these instruments are ill-suited for the purpose.
*524A document inventory or “privilege log” is useful in determining whether a privilege applies because one can compare, for example, a list of senders and recipients with a list of attorneys and clients. Client confidences, however, cannot be identified from matters that appear in a document inventory.3
In the first place, work product does not always fit into tidy categories. Attorney notes, memos to the file, status letters, and jury consultant reports, to name but a few, may cover many different claims, topics, and aspects of the case. Even where the general type of document or subject matter is more limited in scope, this information is still misleading if the document contains anything else. Confidences, after, all, may easily appear in a short comment, suggestion, or handwritten note on any document, regardless of type or subject matter. In short, unless the inventory is completely candid and exhaustive, it may conceal more than it reveals.
But the Court’s proposed inventory will be prepared (as it must) by none other than the disqualified attorney. By reason of the disqualification, a court has already found a risk of disclosure where this attorney saw none. Moreover, any admission that a document on the list contains confidential information from a former client would be an automatic admission of a new violation of the disciplinary, rules. Tex. Disciplinary R. Profl Conduct 1.05(b). This is expecting too much.
Armed with this suspect inventory, trial judges are then asked to review each entry for its relationship to a prior representation. This will be no easy task. It is one thing to compare pleadings to see if two cases are substantially related, though the number of recent disqualification matters before this Court suggests that reasonable minds may differ even on this point. But it is quite another for a trial judge to check every letter, memo, note, report, summary, time sheet, and attachment on an inventory list to see if it might relate to a prior representation.
The Court suggests that successor counsel may assist the trial judge with other evidence, but I have trouble imagining what that might be. Clearly, none of the attorneys remaining in the case can swear out affidavits concerning the contents of documents they have never seen. Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984) (affidavits must unequivocally state facts upon which perjury can be assigned). Nor can the disqualified attorneys provide credible evidence that particular authors or documents are unlikely sources of confidential information, as this Court has never given any weight to such denials before. In re American Home Products Corp., 985 S.W.2d 68, 74 (Tex.1998) (denials of access to confidential information irrelevant where there is a genuine threat of disclosure). Even lawyers acting in utmost good faith may not be aware of their receipt or use of confidential information. EZ Paintr Corp. v. Padco, Inc., 746 F.2d 1459, 1463 n. 6 (Fed.Cir.1984). Given these weaknesses, I do not share the Court’s confidence that an inventory list or other information will allow trial judges to make an informed decision without inspecting each and every document in the disqualified attorney’s file. I doubt that will help much either, though, as any judicial inspection of documents would be not just in camera but in the dark. There is little point in asking trial judges to look for something without telling them what it is. But as this Court has often noted, a client should not have to describe its confidences to a trial judge in order to protect them. NCNB Texas Nat. Bank v. Coker, 765 S.W.2d 398, .400 (Tex.1989). There is nothing self-identifying about client confi*525dences, especially to a judge unfamiliar with the client or the issues in the prior case.
And finally, what of appellate review? As a loss of confidentiality cannot be adequately remedied by appeal, appellate courts will have to oversee this process on a regular basis. This satellite litigation stems from motions filed four years ago, and has already been to this Court twice. By remanding for further proceedings instead of disposing of the issue now, the Court may be simply sending it around for another orbit.
B
The Court justifies these risks and complexities by pointing to the delay and cost to Ms. Anderson if work product must be re-created. But she will hardly be starting from scratch. All members of the Court agree she will receive all pleadings, discovery requests, discovery responses, documents produced by any party, correspondence with the court, correspondence between the attorneys, and all exhibits and transcripts from the previous trial. This may not be everything her disqualified lawyers did, but they will still need a truck to make the delivery.
As to whatever work product remains, it seems to me there would be less delay and expense by simply telling successor counsel to start doing their own work now. If the Court is correct about the high burden imposed by the procedures it adopts, the end result may be about the same.
But even if the new procedures save some trouble and expense for Ms. Anderson, they do so by shifting them to the opposing parties and the trial judge. Parties who are not to blame for the disqualification should not have to bear its costs. A party whose confidences are at risk already incurs considerable cost in disqualifying an opposing attorney, costs that are probably unrecoverable. At least under a rule banning transfer of work product, that is the end of it. Under the rule adopted today, it may only be the beginning.
Of course, there is nothing in the record to suggest Ms. Anderson will have to pay for duplicated work. Indeed, the client should not bear the cost in most cases. Before taking a case that may be substantially related to a prior representation, an attorney must fully disclose the existence, nature, implications, and possible adverse and advantageous consequences of the overlap. Tex. Disciplinary R. Profl Conduct 1.06(b), (c). If the attorney fails to do so, it is the attorney who must bear the costs. Burrow v. Arce, 997 S.W.2d 229, 241 (Tex. 1999) (client should not have to pay for services necessary because of lawyer’s misconduct). If the attorney does disclose the conflict, then the client may choose to take the risk, but she should not be absolved from the consequences. Either way, only the party who is responsible for the disqualification bears the burden of delay and expense.
I agree with the Court that Ms. Anderson should not be deprived of her property without a compelling reason, but attorney-client confidentiality is a compelling reason. If the facts of a case justify depriving a party of her lawyer, I do not see why they fall short when considering her lawyer’s papers.
C
The Court points to two prior opinions to support its adoption of a rebuttable presumption in this case. The term used in those cases is the same, but the remedies adopted are not.
In Phoenix Founders, Inc. v. Marshall, the Court allowed a non-tainted firm to rebut the presumption that a newly-hired paralegal shared confidences with her new employers. 887 S.W.2d 831, 834 (Tex. 1994). But rebuttal was limited to a structural showing — the so-called “Chinese Wall” — proving the tainted paralegal had not worked on the litigation in the past and would not do so ever again. A similar “rebuttable presumption” in this case *526would prevent use of tainted files ever again.
In re American Home Products Corp. also allowed an attorney in one firm to rebut the presumed receipt of confidential information from a tainted attorney in another firm. 985 S.W.2d at 81. Again, however, there was a structural separation-the two attorneys worked for different firms in cities almost two hundred miles apart, and because of the disqualification could never work together on the case again.
In both cases, the rebuttable presumption involved a structural separation that cut off the communication of client confidences both in the past and in the future. There is no similar separation between disqualified or successor lawyers and their files. The correct analogue to the wall adopted in previous cases would be a total restriction on the transfer of work product in this case. Instead of a wall, the Court has erected a gate.
IV
A complete bar on transfer of work product is not a harsh remedy when compared to the rights the remedy is meant to protect. Occasionally crimes may go unsolved or injustices may be done because attorneys do not divulge all they know. But the preservation of clients’ secrets and confidences is not an option. Coker, 765 S.W.2d at 399.
Work product can be re-created; confidentiality cannot. Because there is no practical way short of banning the transfer of work product to make sure the policies behind disqualification are fulfilled, I would grant the mandamus.
. Hon. Scott Brister, Judge, 234 th District Court, sitting by commission of Hon. George W. Bush, Governor of Texas, pursuant to Section 22.005 of the Texas Government Code.
. Hon. Tom B. Ramey, Jr., Chief Justice, Court of Appeals for the Twelfth Court of Appeals District, siting by commission of Hon. George W. Bush, Governor of Texas, pursuant to Section 22.005 of the Texas Government Code.
. In an appropriate case, a date indicating preparation before a tainted lawyer arrived might justify transfer. See EZ Paintr Corp. v. Padco, Inc., 746 F.2d 1459, 1461 (Fed.Cir. 1984). Such documents would still need to be reviewed for post-taint additions or artful usage of dates. But in this case it is uncontested that the tainted attorneys were present at all times work product was prepared.