WORK PRODUCT RULE-KEEPING THE ATTORNEY’S WORK PRODUCT PRIVILEGED
The attorney client privilege is one of the most important protections available to a person seeking legal advice. As discussed in other articles on this web site, it means that all conversations and written communications you have with your attorney or someone you may eventually retain as your attorney are privileged and neither you, nor the attorney, can be compelled to testify about what was communicated without your consent. There are various restrictions: the communication must be in the attorney-client context and must not be overheard or communicated to third parties; it must not involve a plan to commit a crime in the future, etc. etc. But the key factor is that if you are working with legal counsel, your communications remain privileged absent your consent.
The rationale for this privilege is to allow a person to communicate freely with legal counsel without fear that his or her words will end up in court or other proceeding as evidence. The freedom to communicate with counsel without such fear is considered a fundamental right of a person in the United States and is a privilege jealously guarded by the courts. The courts reasoned that one cannot have adequate legal counsel without the privilege remaining in place.
But the issue inevitably arises as to how far the privilege applies to work prepared by or for the attorney. If the attorney conducts investigations, research, creates notes and strategy, etc., does the privilege apply to such documentation?
That is the subject of this article.
The Basic Law:
The privilege as to the work product of an attorney does apply, but there are limitations and balancing of competing public interests that may also apply.
Normally the privilege applies to all writings prepared by the attorney which are directed to preparation of the representation, including all written materials, charts, note of conversations, investigations, summaries, abstracts, and legal or factual analysis. The key factor is that if evidence is developed which the lawyer wants to use in a proceeding by entering it into evidence, the privilege may be eliminated for discovery purposes to avoid unfair surprise to the other party. Facts are not privileged. Work product analyzing the facts may be.
Usually, an opposing party may not discover or compel disclosure of work product. As examples, it can be a client’s description of the events or facts when seeking legal advice; exchanges between lawyer or client investigating the facts; and the actual legal advice given. Attorney work product privilege permits attorneys to withhold from production documents and other tangible things prepared in anticipation of litigation or representation by or for another party or its representative. See: Fed. R. Civ. P. § 26(b)(3). It is vital to understand that just as with the general attorney-client privilege, work product privilege does not protect underlying facts or evidence, merely the work product created by the attorney. .
Work product privilege may be waived when an attorney discloses the work product to a third party in a way that creates a significant likelihood that an adversary or potential adversary in the anticipated litigation will obtain it. See U.S. v. Stewart, 433 F.3d 273 (2d Cir. 2006). This is based on the idea that opposing counsel should not be able to prepare a case on borrowed wits, and only disclosures of work product that are inconsistent with the adversarial system of litigation are contrary to the purposes for which work-product is granted.
For the attorney-client privilege to attach, the following aspects must exist:
- The person or entity asserting the privilege must be a client or a person that may become a client;
- The person to whom the communication was made must be an attorney acting in that capacity at the time of the communication;
- The communication must have been made by the client, not a third-party;
- The communication must be made in confidence; and
- The communication must be for the purposes of obtaining legal advice or assistance in a legal proceeding.
It is vital to understand that if the privileged information is communicated to a third party, the privilege is likely destroyed. As an example, if you are discussing it in a crowded hallway and it is overheard by a third party, that third party may disclose that information to the opposing parties without violating the privilege since you have “waived” the privilege by allowing the third party to hear the information.
When attorneys retain third-party consultants to assist in rendering legal advice, communications with the third-party consultant may still be privileged as long as the consulting service is rendered for legal rather than business advice and communications with the consultant are kept confidential.
Additionally, work product immunity generally extends to materials prepared by a party’s agent other than an attorney—such as a third-party consultant. However, reports or statements made by or to the consultant without an attorney’s direction or supervision are presumably made in the ordinary course of business and so are usually not privileged.
WEIGHING THE INTERESTS:
A key difference as to work product is that the work product privilege may be overcome if there is a substantial need for materials to prepare the case and the opposing party cannot reasonably obtain their substantial equivalent by other means. For instance, if there is no contemporaneous record and no witnesses to interview, the court may not provide work product privilege if you have unique information you developed which pertains to the facts at issue.
The attorney-client privilege is a rule of evidence whereas the work product doctrine is embodied in the court’s civil procedure rules. The case law that has arisen around both the privilege and the work product doctrine reflect a tension between the two competing interests of ensuring confidentiality while at the same time promoting the search for truth in litigation.
Adjusting to the Competing Interests
- When retaining consultants, either legal counsel should be the party entering into the engagement. The engagement letter/agreement should make explicit that the consultant is being retained to assist counsel in providing legal advice and is retained by the legal counsel.
- Counsel should emphasize at the outset of each consultant engagement that all communications and documents generated in the engagement should be considered confidential and only shared with individuals within the company who have a need for the information—and never with a third party without prior written approval of counsel.
- Consultants should be advised to communicate only with senior company employees and counsel who are familiar with the legal nature of the consultant’s work.
- Written communications relating to the engagement should make explicit—such as through a plain statement in the header of the communication—the author’s intent that the communication is confidential and intended to be protected by the attorney-client privilege and/or the attorney work product doctrine.
- In-house or outside counsel and the consultant must regularly consult with each other about the engagement and counsel should oversee the consultant’s work. Simply retaining outside counsel to engage the consultant is probably not enough to ensure protection from subsequent discovery. Key meetings and communications should involve counsel.
- With respect to work product, counsel must be mindful that only information prepared in anticipation of litigation will be protected. The anticipated litigation should be specifically described. Note that a theoretical potential regulatory violation and/or enforcement action may not suffice. However, engaging a consultant to assist in responding to a regulator’s inquiry or official agency request may be enough to support the conclusion that litigation is anticipated.
- If the company anticipates litigation, the company should circulate a “litigation hold” memorandum to appropriate personnel to ensure the preservation of potentially relevant records. Indeed, if the company does not distribute such a memorandum, this could be used as evidence by an opponent seeking discovery in future litigation that the company did not anticipate litigation and, therefore, the work product doctrine should not apply.
The writer well remembers the reaction of opposing counsel when ordered by a court to provide to our client documentation of a delivery that had been prepared by his paralegal based on delivery receipts now missing. Counsel was outraged that what he had worked weeks to produce (and billed his client for in a large amount) was now to be delivered to our firm.
What he had failed to understand is that while “game playing” is an inherent part of much litigation, the Court’s focus is on fairness and discovering the truth. The attorney (and his client) did not fully grasp that whether or not they worked to develop the information, if their work was the only source to allow the court to determine the truth, their interests would become secondary.