what are the differences between attorney client and attorney work product privileges?

The duration of the attorney-client privilege and the work product doctrine may differ depending on the court. The attorney-client privilege normally lasts forever; while, the work product doctrine may be limited to the litigation and can be terminated when the litigation ceases.

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What is the Attorney work product doctrine?

Ten Things You Need to Know as In-House Counsel®

1. What is the work product privilege? First, I discovered that it’s not really considered a “privilege” in the pure sense of the word. ...
2. Must be prepared in anticipation of litigation. This is the key to seeking work product protection, the materials must have been prepared in anticipation of litigation . ...
3. What constitutes “litigation”? ...

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What is attorney work product rule?

The scope of the privilege is generally confined to:

• A client's request for legal advice from a lawyer.
• A client's communication to a lawyer of facts the lawyer needs to give legal advice.
• A lawyer's request for facts that the lawyer needs to give legal advice.
• A lawyer's legal advice.

What is work product privilege?

The work-product privilege or doctrine 1 originated in the seminal case of Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385 (1947, in which the U.S. Supreme Court held that statements of witnesses obtained by an attorney prior to trial were privileged and thus protected from discovery. The Court reasoned that to allow otherwise would be contrary to the public policy underlying the orderly and just prosecution and defense of claims.

What is the definition of attorney work product?

Written or oral materials prepared by or for an attorney in the course of legal representation, especially in preparation for litigation. Generally, an opposing party may not discover or compel disclosure of work product.

What is attorney client privilege?

In Florida, F.S. 90.502 provides that the attorney-client privilege exists when a client consults “a lawyer with the purpose of obtaining legal services, ” or with a lawyer who is rendering legal services. But, because corporate claims of attorney-client privilege are treated with more suspicion, the Florida Supreme Court in Southern Bell Tel. & Tel. Co. v. Deason held that a corporation must demonstrate the following, in order to assert attorney-client privilege:

Which rule governs claims of work product protection?

Claims of work product protection are governed by the principles set forth in Federal Rule of Civil Procedure 26 (b) (3) , which reads in pertinent part:

Do you have to anticipate litigation when drafting documents?

Thus, a party must anticipate litigation at the time the documents were drafted for these protections to apply. Materials or documents drafted in the ordinary course of business are not protected. The burden is on the party withholding discovery to show that the documents should be afforded work-product immunity.

What is attorney client privilege?

Attorney-client privilege protects lawyers from being compelled to disclose your information to others. Many times, law enforcement officers, insurance companies, or judges try to ask attorneys for information that is disclosed to assist them in other cases or investigations. The privilege protects the client and the attorney in these instances.

What is work product in litigation?

It also prevents disclosure of any work-related information that an attorney creates in the course of litigation. Work- related information, also known as work product, may include notes taken during meetings or mental impressions or strategies that attorneys have documented and planned to use at trial. Attorney client confidentiality is ...

How does attorney-client confidentiality work?

Because attorney-client confidentiality and attorney-client privilege both have the ultimate goal of protecting clients’ information, there are some similarities between the two regarding how information can be disclosed and when it can be disclosed. Generally, both attorney-client confidentiality and privilege must be maintained until the client gives permission for the information to be disclosed. In addition, the information will still be confidential after representation ends. In other words, attorneys are still under a duty to keep your personal information private, even if representation has ended.

Can an attorney disclose confidential information?

Confidentiality rules provide that attorneys are prohibited from disclosing any information for privacy reasons, unless it is generally known to others. If information is known by a majority of individuals, it may lose confidentiality under the rules.

Do attorneys have to keep client information confidential?

Generally, both attorney-client confidentiality and privilege must be maintained until the client gives permission for the information to be disclosed. In addition, the information will still be confidential after representation ends. In other words, attorneys are still under a duty to keep your personal information private, ...

What is an attorney's work product?

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.

What is client privilege?

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 discovery in attorney-client privilege?

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?

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: 1 Video and voice recordings 2 Written documents 3 Notes 4 Photographs

Why are conversations protected in a lawyer?

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.

What is the work product doctrine?

Work product doctrine protects the confidentiality of a lawyer's work in preparation for a trial. This includes any tangible or intangible material like: 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.

How to ensure that all information is protected?

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.

What is attorney-client privilege?

The attorney-client privilege is one of the oldest privileges for confidential communications. This privilege assist when there is an attorney-client relationship. The privilege is asserted in the face of a legal demand for the confidential communications, such as a discovery request or a demand that the lawyer testify under oath.

Why is privilege important in legal practice?

The privilege also ensures that lawyers can provide candid and frank legal advice to their clients. For example, a lawyer might be more circumspect in discussing whether a client’s course of conduct amounts to fraud if that conversation could be disclosed to prosecutorial authorities or a potential adversary in civil litigation.

Is a client's advice privileged?

If a client seeks advice from an attorney to assist with the furtherance of a crime or fraud or the post-commission concealment of the crime or fraud, then the communication is not privileged. If, however, the client has completed a crime or fraud and then seeks the advice of a legal counsel, such communications are privileged unless the client considers covering up the crime or fraud.

Can a testator-client be breached?

Death of a client. The privilege may be breached upon the death of a testator-client if litigation ensues between the decedent’s heirs, legatees or other parties claiming under the deceased client.

Is a retainer agreement necessary?

The communication must be made by a client . A formal retainer agreement is not necessary. It is enough for the individual to honestly believe he or she is consulting the lawyer for purposes of obtaining legal advice in advancing his or her own interests. A corporation can be a “client” too. In that case, the privilege protects communications between the company’s lawyer – whether an “in-house” lawyer employed by the company, like a general counsel, or “outside” counsel at a law firm – and the company’s employees so long as the communications fall within the scope of the employee’s duties.

Who does the client's communications have to be made to?

The client’s communications must be made to counsel – a lawyer . The privilege also covers a client’s communications with individuals who assist the lawyer in the representation, such as a paralegal or an investigator.

Is email privileged?

Communication must meet certain criteria . Communication (i.e. emails, correspondence, oral communication, etc.) will only be privileged when the subject communication meets certain criteria, and it is confidential (meaning that it is not shared with non-attorney/non-client third parties).

What is the work product doctrine?

The work product doctrine states that an adverse party generally may not discover or compel disclosure of written or oral materials prepared by or for an attorney in the course of legal representation, especially in preparation for litigation.

Is the work product doctrine a rebuttable presumption?

Specifically, the Court clarified that there is a presumption that an adverse party may not have access to materials prepared by a party's lawyers in anticipation of litigation . The Court maintained that this presumption may be overcome when a party has relevant ...

July 24, 2018

Work Product Protection

Attorney-Client Privilege

• In diversity actions, the attorney-client privilege is governed by state law. In Florida, F.S. 90.502 provides that the attorney-client privilege exists when a client consults “a lawyer with the purpose of obtaining legal services,” or with a lawyer who is rendering legal services. But, because corporate claims of attorney-client privilege are trea...

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