Attorney-Client Privilege and Work Product (Amy Lee Stewart Commentary)

The attorney-client privilege is a bit like a soufflé — much described and assumed, finicky, tricky and easily damaged, but a precious thing when properly created and maintained. At its core, it is a rule of evidence that protects confidential communications of clients (whether individual or corporate) with their attorneys when the communications are made for the purpose of obtaining and providing legal advice. The privilege does not protect facts; it protects oral, written and visual communications made to obtain or provide legal advice. If the communication or the information contained in it can be obtained from a nonprivileged source, it may be obtained from that source.

With few exceptions, when the privilege attaches it protects both the attorney and the client from being compelled to reveal certain information and advice. Such information and advice is protected when it is:

  • Disclosed and maintained confidentially,
  • For the purpose of seeking or giving legal advice,
  • By or to the client or its representatives,
  • To or by the attorney acting in the capacity of attorney for the client.

Marking a communication “Attorney-Client Privileged” does not make it privileged. Each of the four elements is necessary for the privilege to apply, regardless of how the communication is labeled or described.

For instance, a conversation at a cocktail party between a client, his attorney and their mutual friend will not likely be privileged; it was held in the presence of one who did not represent the client or share his privilege. A memo from a manager to her team, with a “cc” to counsel, reporting the company’s most recent sales results will not likely be privileged; the manager sought no legal advice from the attorney. A call from a client’s neighbor to the client’s attorney to express concern that the client has been acting erratically will not likely be privileged; the neighbor was not the client or her legal representative. And an email from the president of the duck club to a member who happens to be an attorney, asking whether the member thinks the club must pay the carpenter who hung the bunks too close together will not likely be privileged; the member was not acting in the capacity of attorney for the duck club.

The privilege belongs solely to the client. Only the client or its current corporate management officers and directors acting on behalf of the client have the authority intentionally to waive the privilege or authorize anyone else to waive it. Like most privileges (and soufflés), however, the attorney-client privilege can also be destroyed accidentally. The client or its representatives may inadvertently waive the privilege by, for example, discussing counsel’s advice with friends or disclosing the advice in blogs, tweets and other social media.

If the attorney-client privilege is a soufflé, then the work product doctrine inhabits the less rarified position of the humble egg: baked into the case, mostly hidden, emulsifying into privileged communication when shared with the client, curdling if inadvertently exposed to anyone else. The work product doctrine protects the mental impressions of an attorney, or work done by or at the request of an attorney, under certain circumstances. It is broader than the attorney-client privilege in that it protects work regardless of whether it has been disclosed to the client. On the other hand, it is narrower in that it only protects work specifically done in anticipation of a possible legal proceeding rather than for general legal advice. Such mental impressions and work product are generally protected from disclosure to anyone, although a court may require the disclosure of “factual” work product upon a showing of “substantial need” for the information which cannot reasonably be obtained through any other source. As with the attorney-client privilege, disclosure of work product to anyone other than the client or its relevant corporate representatives may result in a waiver of the protection.

Amy Lee Stewart is a member of the Rose Law Firm in Little Rock, and her practice includes litigation and appeals, class action, antitrust, trade regulation and unfair competition. Email her at AStewart@RoseLawFirm.com.