Attorney-Client Privilege and Work Product

The two protections that keep what a client tells a lawyer, and what a lawyer prepares for a case, from being forced into evidence - what the privilege covers and what it does not, who holds it and how it is waived, the crime-fraud exception, the separate and narrower work-product doctrine, and how each is asserted in discovery.

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What it means

The attorney-client privilege protects confidential communications between a client and a lawyer made for the purpose of obtaining or providing legal advice. It belongs to the client, not the lawyer; it survives the end of the representation and, in most jurisdictions, the client's death; and it permits the client to refuse to disclose, and to prevent the lawyer from disclosing, the communication itself. The protection has limits that are often misunderstood. It covers communications, not facts: a client cannot make a fact privileged by telling it to a lawyer, and can be asked about the fact in a deposition, only not about what was said to counsel. It requires confidentiality: a conversation in the presence of a third party who is not needed for the advice, an email copied to a friend, or a document later shown to others is not protected. It requires a legal purpose: business advice, a lawyer acting as a negotiator or scrivener, and communications with a lawyer who is not acting as a lawyer fall outside it. And it does not cover the identity of the client, the fee arrangement, or the fact that a consultation occurred, except in unusual circumstances.

A corporation holds the privilege for communications between its lawyers and its employees made to obtain legal advice for the company, at the direction of management and within the scope of the employee's duties, and the company - not the employee - controls it, which is why in-house counsel warn employees that the privilege is the company's. The privilege is waived by voluntary disclosure of the communication to an outsider, and a waiver can extend to other communications on the same subject where fairness requires; it is also waived by a client who puts the advice in issue, for instance by claiming to have relied on counsel. An inadvertent production in discovery does not waive the privilege if reasonable steps were taken to prevent and to correct it, and litigants commonly agree to a clawback order in advance. The crime-fraud exception withdraws protection from communications made in furtherance of a crime or fraud the client intended to commit, whether or not the lawyer knew; the exception applies to future or ongoing wrongdoing, not to a client's confession of a completed one, which is exactly what the privilege exists to protect. Related privileges cover communications through the lawyer's staff, interpreters and consulting experts, and parties with a common legal interest may share privileged material under a joint-defense agreement without waiving it as to outsiders.

Work product is a separate doctrine, created by the rules of procedure rather than the law of evidence, protecting materials prepared by or for a party or its representative in anticipation of litigation: the lawyer's notes, memoranda, witness interviews, investigation and strategy. Ordinary work product may be obtained only on a showing of substantial need and an inability to get the equivalent without undue hardship; opinion work product - the lawyer's mental impressions, conclusions, opinions and theories - is almost absolutely protected. Unlike the privilege, work-product protection belongs to the lawyer as well as the client, is not waived by disclosure to a friendly third party, and covers documents prepared by investigators, insurers and consultants as well as by counsel; but it reaches only materials prepared because of prospective litigation, so a report an insurer or a business would have prepared in the ordinary course is not protected. Both protections are claimed in discovery by withholding the document and describing it in a privilege log with enough detail for the other side to assess the claim, and a court decides any dispute, often after reviewing the document privately.

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The practical advice is short: tell the lawyer everything, in private, and do not repeat the conversation to anyone else, because candor is protected and disclosure destroys the protection. Employees interviewed by company counsel should understand whose privilege it is and ask whether they need their own lawyer. Anyone facing discovery who has documents involving lawyers, insurers or investigators needs counsel to review them before production, to log what is withheld, and to negotiate a clawback order, since an inadvertent production without one can be argued as a waiver. A person who suspects a lawyer's advice was used to further a fraud should know that the crime-fraud exception exists and that the privilege will not hide it.

Worried about the cost? A lawyer can be hired for one part of a case only (limited-scope representation), may be paid from what a claim recovers (contingency fee), or may be free through a pro bono program or legal aid; a court can also waive its own filing fees.

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Related terms

Other entries in the same area of law, each written from the same primary sources.

• AppealThe review of a trial court's decision by a higher court - what can be appealed and when (the final-judgment rule and its exceptions), the notice of appeal and why missing it is fatal, what "standard of review" means and why most appeals are lost on it, preserving error at trial, the record and briefs, and what an appellate court can and cannot do with the result.
• Burden of Proof (Standards of Proof)Who has to prove what, and how convincingly, before a court will rule for them - the difference between the burden of production and the burden of persuasion, the three standards (preponderance of the evidence, clear and convincing evidence, beyond a reasonable doubt) and where each applies, presumptions that shift the burden, and why the burden decides cases where the evidence is in balance.
• Complaint and Answer (Pleadings)The documents that start a civil case and frame what it is about - what a complaint must contain, how a defendant answers it, what an admission, denial and affirmative defense each do, counterclaims and cross-claims, and what happens when a pleading is late, deficient or needs to be amended.
• Contempt of CourtThe court's power to punish disobedience of its own orders - the mechanism that makes a court order more than a piece of paper.
• Court Fee Waiver (In Forma Pauperis)How a person who cannot afford court filing fees asks the court to excuse them - the federal and state procedures, who usually qualifies, and what a waiver does not cover.
• Default JudgmentA judgment entered because the person sued did not respond in time - the way most consumer debt lawsuits actually end.
• DepositionSworn, recorded, out-of-court questioning of a witness by the opposing lawyer, before any trial.
• DiscoveryThe pre-trial process in which each side must hand over relevant evidence to the other.
• Expert Witness (Daubert and Frye)A witness allowed to give opinions rather than only facts because of specialized knowledge - who qualifies, the gatekeeping test a judge applies to the reliability of the method (Daubert in federal court and most states, Frye in the rest), the written report and deposition that precede trial, the difference between a retained expert and a treating professional, and why a case can be lost when its expert is excluded.
• Fee Agreement and RetainerThe engagement letter that sets what a lawyer will do and how they are paid - hourly, flat or contingent fees, retainers held in trust, costs, and what to do about a fee dispute.
• Injunction and Temporary Restraining OrderThe court orders that require a party to do or stop doing something rather than pay money - the three stages (temporary restraining order, preliminary injunction, permanent injunction), the four-factor test for emergency relief, the bond the applicant must post, how an order is enforced through contempt, and why a violated order is obeyed first and challenged second.
• Jurisdiction and VenueThe three questions every lawsuit has to answer before its merits can be heard - whether the court has power over this kind of case (subject-matter jurisdiction), power over this defendant (personal jurisdiction), and whether this is the right place within the system to bring it (venue) - what each requires, how each is challenged, and why a judgment entered without jurisdiction is void.
• Limited-Scope Representation (Unbundled Legal Services)Hiring a lawyer for one defined part of a legal matter - advice, drafting a document, or a single hearing - instead of the whole case, and the written agreement that sets the boundary.
• Mediation and ArbitrationTwo ways of resolving a dispute outside a trial that are constantly confused - one produces an agreement you can walk away from, the other a decision you generally cannot appeal.
• Motion to DismissA request to end a case at the outset on the basis that, even if everything alleged is true, it does not amount to a legal claim.
• Pro Bono Legal HelpFree legal work by volunteer lawyers - what the professional rules ask of lawyers, how people of limited means are matched with a volunteer, and why it is not the same as legal aid.
• Release and Settlement AgreementThe document that ends a claim by giving up the right to bring it - normally final, and normally broader than people expect.
• Representing Yourself (Pro Se)The right to conduct your own case without a lawyer - available in almost every civil court, and held to almost the same standards as a lawyer.
• Res Judicata and Collateral Estoppel (Preclusion)The rules that stop a dispute from being litigated twice - claim preclusion, which bars a second suit on a claim that was or could have been decided, and issue preclusion, which bars re-arguing a specific issue actually decided, the elements of each, who is bound, the exceptions, and why "could have been raised" is the part that surprises people.
• Service of ProcessThe formal delivery of court papers that gives a court power over the person sued - and the step whose failure undoes more judgments than any other.
• Small Claims CourtA simplified court for lower-value disputes, designed to be used without a lawyer - and in some states lawyers are not allowed in it at all.
• Statute of LimitationsA deadline, set by statute, after which a legal claim can no longer be brought at all.
• SubpoenaA court-backed order to give evidence or hand over documents - enforceable against people who are not parties to the case at all.
• Summary JudgmentA ruling that decides a case, or part of one, without a trial because the essential facts are not genuinely in dispute.

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