Key Takeaways

  • Attorney-client privilege protects confidential legal communications, encouraging clients to be fully open with their attorneys.
  • Work product doctrine shields an attorney’s trial preparation materials—including notes, strategies, and evidence—from disclosure.
  • Confidentiality agreements (NDAs or CDAs) are contracts that protect sensitive business or legal information from being improperly shared.
  • Confidentiality agreements can be unilateral (one party discloses information) or bilateral (both parties disclose).
  • Common NDA provisions include definitions of confidential information, exclusions, obligations of receiving parties, term length, and remedies for breach.
  • NDAs play an important role in business transactions, litigation, and attorney-client relationships by reinforcing privilege and work product protections.

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. 

Confidentiality and Attorney-Client Communications

While attorney-client privilege arises automatically in legal settings, parties often strengthen these protections through confidentiality agreements. These contracts ensure that sensitive information—whether legal advice, client disclosures, or business secrets—remains protected beyond the courtroom. For example, an attorney representing a business may enter into a confidentiality agreement with outside consultants or expert witnesses to prevent accidental disclosure of case strategies.

Unlike privilege, which is rooted in legal doctrine, a confidentiality agreement is a contractual obligation enforceable in civil court. This dual protection provides stronger assurances to clients who may need to disclose proprietary, financial, or personal information when seeking legal advice.

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).

How Confidentiality Agreements Complement Work Product Doctrine

Work product protection prevents opposing counsel from accessing an attorney’s case materials. However, in collaborative legal or business environments, additional safeguards may be necessary. A confidentiality agreement can:

  • Restrict third parties (such as contractors, investigators, or expert witnesses) from disclosing privileged work product.
  • Define what constitutes “confidential information,” ensuring consistent handling across all parties involved in a case.
  • Include remedies for breach, such as injunctive relief or monetary damages, providing enforcement mechanisms not always available through work product doctrine alone.

By combining work product doctrine with a well-drafted confidentiality agreement, attorneys and clients can better shield sensitive trial preparation from exposure.

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. 

Types of Confidentiality Agreements

Confidentiality agreements, also called nondisclosure agreements (NDAs) or confidential disclosure agreements (CDAs), come in different forms:

  • Unilateral NDAs: One party shares confidential information and the other agrees to protect it.
  • Bilateral (Mutual) NDAs: Both parties disclose sensitive information and agree to protect each other’s disclosures.
  • Multilateral NDAs: Involving three or more parties, these agreements streamline obligations when several organizations share information.

The type of agreement chosen depends on the nature of the relationship. For example, in litigation, an attorney may require unilateral NDAs with expert witnesses. In business partnerships, mutual NDAs are more common.

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. 

Key Provisions in a Confidentiality Agreement

A strong confidentiality agreement typically includes the following provisions:

  • Definition of Confidential Information: Specifies what qualifies as protected information, such as trade secrets, financial data, or legal strategies.
  • Exclusions: Information already public, independently developed, or obtained lawfully elsewhere is excluded.
  • Obligations of the Receiving Party: Limits use of confidential information to agreed purposes and requires safeguarding against unauthorized disclosure.
  • Term and Survival: Sets how long obligations last, often extending beyond the business or legal relationship.
  • Return or Destruction of Materials: Requires the return or destruction of confidential documents when the agreement ends.
  • Governing Law: Determines which state’s laws will apply if disputes arise.

Including these elements ensures the agreement is both enforceable and tailored to the specific context.

Limitations and Risks of Confidentiality Agreements

Although confidentiality agreements are powerful, they are not absolute. Courts may refuse to enforce provisions deemed overly broad or against public policy. For example, a clause that attempts to conceal illegal activity would not be valid. Enforcement also varies by jurisdiction, and courts may interpret “confidential information” differently depending on state law.

Additionally, NDAs cannot prevent disclosures required by law, such as court orders or government investigations. Businesses and attorneys should therefore draft agreements carefully, balancing strong protections with realistic enforceability.

Frequently Asked Questions

1. What is the difference between attorney-client privilege and a confidentiality agreement?

Attorney-client privilege is a legal doctrine protecting communications between lawyer and client, while a confidentiality agreement is a contractual promise not to share sensitive information.

2. Are confidentiality agreements legally enforceable?

Yes, but enforcement depends on the terms and jurisdiction. Overly broad or unlawful restrictions may be struck down by courts.

3. What types of information can be protected under a confidentiality agreement?

Trade secrets, financial data, proprietary strategies, intellectual property, and sensitive legal documents are commonly protected.

4. Can a confidentiality agreement override work product doctrine?

No. Work product doctrine is a legal protection, while confidentiality agreements reinforce it by binding third parties to nondisclosure obligations.

5. How long does a confidentiality agreement last?

The duration depends on the contract terms. Some last for a fixed period (e.g., two to five years), while others continue until the information is no longer confidential.

If you need help with attorney-client privilege work product, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.