Privileges and other policy exclusions - Attorney-client and work product

Learning Outcomes

This article examines the attorney-client privilege and the work product doctrine, two key concepts frequently tested on the MBE within the broader topic of privileges and policy exclusions. After reading this article, you will be able to identify the requirements for establishing each protection, distinguish between them, analyze common exceptions, and understand how waiver can occur, enabling you to apply these rules accurately to MBE fact patterns.

MBE Syllabus

For the MBE, you are expected to understand the rules governing privileges, particularly the attorney-client privilege and the work product doctrine. You should be prepared to:

• Define the elements necessary to establish the attorney-client privilege.
• Identify who holds the attorney-client privilege and how it applies to corporations.
• Recognize situations that constitute exceptions to the attorney-client privilege (e.g., future crime or fraud).
• Determine when the attorney-client privilege has been waived.
• Define the elements of the work product doctrine.
• Distinguish between qualified and absolute work product protection.
• Analyze the requirements for overcoming qualified work product protection (substantial need and undue hardship).
• Differentiate between attorney-client privilege and work product protection.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is essential for the attorney-client privilege to apply?
   1. The communication must relate to ongoing litigation.
   2. The communication must be made in confidence for the purpose of seeking legal advice.
   3. The client must explicitly state that the communication is privileged.
   4. The attorney must actually provide legal advice based on the communication.
2. A client tells her attorney, in confidence, about her plan to commit perjury at an upcoming trial. Is this communication protected by the attorney-client privilege?
   1. Yes, because it is a confidential communication between attorney and client.
   2. Yes, because the attorney is obligated to keep all client communications secret.
   3. No, because the communication concerns a future crime or fraud.
   4. No, because the attorney has not yet provided advice based on the communication.
3. An attorney interviews a key witness and prepares a detailed memorandum summarizing the witness's expected testimony and the attorney's thoughts on the witness's credibility and potential weaknesses. This memorandum is primarily protected by:
   1. The attorney-client privilege.
   2. The spousal privilege.
   3. The work product doctrine.
   4. The physician-patient privilege.
4. Under the work product doctrine, an opposing party seeks discovery of materials prepared by an attorney in anticipation of litigation. Which type of work product receives the highest level of protection?
   1. Witness statements taken by the attorney.
   2. Factual reports compiled by investigators hired by the attorney.
   3. The attorney's mental impressions, conclusions, opinions, or legal theories.
   4. Photographs of the accident scene taken by the attorney.

Introduction

In litigation, certain communications and information are shielded from discovery and disclosure based on specific privileges or public policy considerations. Privileges protect confidential relationships deemed socially important, while policy exclusions prevent the admission of certain relevant evidence to encourage desirable conduct or avoid unfair prejudice. This article focuses on two critical protections: the attorney-client privilege and the work product doctrine. Understanding their distinct requirements, scope, exceptions, and potential waiver is essential for success on the MBE Evidence section.

Key Term: Privilege A rule of evidence law that permits a person to refuse to disclose, and to prohibit others from disclosing, certain confidential information in judicial proceedings.

Attorney-Client Privilege

The attorney-client privilege protects confidential communications between a client and attorney made for the purpose of obtaining or rendering legal advice or services. Its purpose is to encourage full and frank communication between attorneys and their clients.

Elements Required

For the privilege to apply, all the following elements must be met:

1. Client: The privilege holder is the client (or prospective client seeking legal advice). The attorney asserts the privilege on the client's behalf.
2. Attorney: The communication must be with an attorney (or their representative) acting in a professional capacity.
3. Communication: The protection applies to communications (oral, written, or conduct intended as communication) between the attorney and client. Pre-existing documents or physical evidence are generally not covered simply because they are handed to an attorney.
4. Confidentiality: The communication must be made in confidence, meaning the client reasonably believes it is not being disclosed to third parties unnecessary to the rendition of legal services. The presence of non-essential third parties can destroy confidentiality.
5. Legal Advice Purpose: The primary purpose of the communication must be to seek, obtain, or provide legal assistance, not business or personal advice.

Key Term: Attorney-Client Privilege A privilege protecting confidential communications between an attorney and client made for the purpose of obtaining or providing legal advice.

Scope and Holder

• Client Holds the Privilege: The client is the holder of the privilege and decides whether to assert or waive it. The attorney must assert it on the client’s behalf.
• Corporate Clients: For corporations, the privilege covers confidential communications between corporate employees and corporate counsel made at the direction of superiors for the purpose of seeking legal advice for the corporation (Upjohn Co. v. United States). The scope is generally determined by the subject matter of the communication and whether it was made for legal advice purposes, not just the employee's rank.
• Duration: The privilege survives the client's death in most jurisdictions.

Key Term: Confidential Communication A communication made under circumstances where the client reasonably believes it will not be disclosed to unnecessary third parties.

Exceptions

The privilege does not apply in certain situations:

1. Future Crime or Fraud: Communications made to enable or aid anyone to commit what the client knew or should have known was a crime or fraud are not privileged.
2. Client-Attorney Disputes: Communications relevant to a dispute between the attorney and client (e.g., malpractice suit, fee dispute) are not privileged in that dispute.
3. Joint Clients: If two or more clients consult the same attorney on a matter of common interest, communications between them and the attorney are not privileged as between those clients in a subsequent dispute between them.

Waiver

The privilege can be waived, intentionally or inadvertently.

• Express Waiver: The client explicitly agrees to disclose the communication.
• Implied Waiver (Subject Matter): Disclosing a significant portion of a privileged communication generally waives the privilege as to the undisclosed remainder concerning the same subject matter if fairness requires disclosure of the whole.
• Failure to Assert: Failure to object when privileged information is sought constitutes a waiver.
• Putting-in-Issue: If the client puts the attorney-client communication at issue in a case (e.g., claiming reliance on counsel's advice as a defense), the privilege is waived.

Key Term: Waiver The intentional or inadvertent relinquishment of a known right or privilege, such as the attorney-client privilege or work product protection.

Worked Example 1.1

Scenario: Client consults Attorney about potential liability for past tax evasion. Client truthfully discloses all relevant financial details. Later, Client is sued by the IRS. The IRS seeks to compel Attorney to testify about the conversation regarding the past evasion. Question: Is the communication privileged?

Answer: Yes. The communication involves a client seeking legal advice from an attorney regarding past conduct. It was presumably made in confidence. None of the exceptions (e.g., future crime/fraud) apply. The client holds the privilege and can prevent the attorney from testifying.

Work Product Doctrine

Distinct from the attorney-client privilege, the work product doctrine protects materials prepared in anticipation of litigation from discovery by opposing counsel. Its purpose is to protect the adversary system by shielding an attorney's mental processes and litigation strategy.

Elements Required (Work Product Doctrine)

To qualify for work product protection, the material must be:

1. A document or tangible thing.
2. Prepared in anticipation of litigation or for trial. This means the prospect of litigation must be identifiable; materials prepared in the ordinary course of business are not covered.
3. By or for another party or its representative (including attorneys, consultants, insurers, agents).

Key Term: Work Product Doctrine A rule protecting materials prepared by or for a party or its representative in anticipation of litigation or for trial from discovery by opposing parties.

Qualified vs. Absolute Protection

The work product doctrine provides two levels of protection:

1. Qualified Protection: Applies to general work product (e.g., witness statements, factual reports). These materials can be discovered if the opposing party shows:
   • A substantial need for the materials to prepare its case; and
   • An inability, without undue hardship, to obtain the substantial equivalent by other means.
2. Absolute Protection: Applies to the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative concerning the litigation ("opinion work product"). This type of work product is almost never discoverable.

Key Term: Qualified Work Product Materials prepared in anticipation of litigation (e.g., witness statements) discoverable only upon a showing of substantial need and undue hardship.

Key Term: Absolute Work Product An attorney's or representative's mental impressions, conclusions, opinions, or legal theories concerning litigation, which are generally not discoverable.

Waiver (Work Product Doctrine)

Like the attorney-client privilege, work product protection can be waived.

• Disclosure: Voluntary disclosure to an adversary or in a manner inconsistent with maintaining secrecy (e.g., public disclosure) typically waives protection.
• Putting-in-Issue: If a party relies on work product materials as part of a claim or defense, the protection may be waived.

Worked Example 1.2

Scenario: After a car accident, Plaintiff's attorney hires an investigator who interviews several eyewitnesses and prepares summaries of their accounts. Defendant's attorney seeks discovery of these interview summaries. Plaintiff's attorney objects, asserting work product protection. Question: Are the summaries discoverable?

Answer: Maybe. The interview summaries are documents prepared by a representative (investigator) for a party (Plaintiff) in anticipation of litigation. They constitute qualified work product. Defendant can obtain them only by demonstrating a substantial need (e.g., witnesses are now deceased or unlocatable) and an inability to obtain the equivalent information without undue hardship (e.g., cannot depose the witnesses). The attorney's mental impressions within the summaries, if any, would receive absolute protection.

Distinguishing Privilege and Work Product

It is important to distinguish between attorney-client privilege and work product:

Exam Warning

Do not confuse the absolute protection of attorney-client privilege (covering the communication itself) with the often-qualified protection of work product (covering materials prepared for litigation). A document containing privileged communications might also be work product, but the protections operate independently. Also, remember that pre-existing documents do not become privileged merely by being given to an attorney.

Key Point Checklist

This article has covered the following key knowledge points:

• Attorney-client privilege protects confidential communications between attorney and client for legal advice purposes.
• The client holds the attorney-client privilege.
• Exceptions to attorney-client privilege include future crime/fraud and client-attorney disputes.
• Waiver of attorney-client privilege can occur expressly, impliedly, or by putting communications at issue.
• Work product doctrine protects materials prepared in anticipation of litigation.
• Work product includes qualified protection (discoverable on need/hardship) and absolute protection (mental impressions).
• Waiver of work product can occur through disclosure or putting materials at issue.
• Privilege protects the communication itself; work product protects materials prepared for litigation.

Key Terms and Concepts

• Privilege
• Attorney-Client Privilege
• Confidential Communication
• Waiver
• Work Product Doctrine
• Qualified Work Product
• Absolute Work Product