Attorney client privilege work product refers to the legal protection of the information gathered by an attorney while preparing for a case. Frequently, legal cases can bring up very sensitive information, especially if it gets into the wrong hands, such as the opposing counsel.

What Is Attorney-Client Privilege?

Attorney-client privilege is a privilege that has been around since the beginning of common law and dates back to the courts of ancient Rome. The idea behind this privilege or protection of information is to help clients feel able to be completely honest with their attorney's without worrying about incriminating themselves or the information they provide being shared with others. 

Attorney-client privilege is automatically in place when confidential communication is happening between an attorney and their client as the client is seeking legal advice or preparing for a case. The privilege here refers to the legal protection of anything communicated between client and counsel.  

Discovery is another aspect of attorney-client privilege as communication between client and counsel is not discoverable by opposing counsel. This means that everything a client says to their attorney is not required to be shared with the opposing side of the case. 

What Is Work Product Protection?

The legal protection of attorney work product did not fully form until 1947 in the important case of Hickman v. Taylor. Work product doctrine protects the confidentiality of a lawyer's work in preparation for a trial. This includes any tangible or intangible material like:

  • Video and voice recordings
  • Written documents
  • Notes
  • Photographs

What technically constitutes an attorney's work product is hard to nail down, so enforcing this protection of work product will fall to the ruling of a judge. 

An attorney's work product is very similar to attorney-client privilege, but it broadens the scope of what is protected. If the opposing counsel in a case was able to see everything their adversary prepared for the trial before the trial took place, it would throw off the balance of justice. 

Over 20 years after the Hickman v. Taylor ruling and its formation of the doctrine of work product, this concept was put into code in the Federal Rules of Civil Procedure in Rule 26(b) (3).

Case Preparation

While preparing for a case, lawyers need to be able to gather lots of relevant and even potentially relevant information without concern that such information is available to their opposition. Theories and strategies must be formed in order to be ready to argue a case, but if a lawyer is constantly concerned about their work being discovered, it will be much harder for them to prepare. 

During this preparation, an attorney may ask for sensitive information from their client, and such conversations are protected to ensure that the client is given every opportunity to be entirely forthcoming. 

These protections also encourage original work from both counsels in a case. If one side did a ton of work to prepare for the case and the other side could easily get their hands on that work product, there would be no incentive for both lawyers to work on the case. In our legal system, the concept of adversaries in a courtroom is based on the idea that each side prepares its case separate from the other and develops all original work. 

Confidentiality Agreement

Business owners need to be especially careful to keep certain information protected even in the case of a lawsuit. Their attorney's work product could contain trade secrets and other valuable information. The best way for a company to ensure that all of their information is protected is to form confidentiality agreements with anyone they work with, whether attorneys, government agencies, or other companies. 

Confidentiality agreements:

  • Limit what the signing party is able to disclose about the company
  • Protect confidential communications and attorney work product from being shared with a nonwaiver provision
  • Prevent the government from asserting a waiver on broad subject-matter that allows the disclosure of privileged information
  • Attempt to further prevent unwanted disclosures of information with clawback clauses that require certain monies to be repaid to the company in the event of such disclosure

The enforcement of a confidentiality agreement in the case of protecting work product from a third party varies depending on the court. Even if a confidentiality agreement doesn't work to completely protect against unwanted disclosure, it is an important level of protection to have. 

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