Resources to help counsel maneuver the various privilege and secrecy rules throughout the US and the world.
The attorney-client privilege is one of the oldest and most important evidentiary privileges in the US. It protects confidential attorney-client communications that relate to legal advice from disclosure to third parties. The purpose of the attorney-client privilege is to promote full and frank communications between attorneys and their clients. The protections afforded by the attorney-client privilege are absolute. They cannot be overcome by an adversary's showing of substantial need. However, under certain circumstances, the privilege may be waived.
The work product doctrine is a newer evidentiary protection. It protects documents and tangible things prepared by a party or its representative in anticipation of litigation from disclosure to third parties. In some ways, the work product doctrine is broader than the attorney-client privilege because its protections are not limited solely to communications or confidential matters. However, the work product doctrine is also narrower than the attorney-client privilege because its protections extend only to documents and other tangible things that are prepared in anticipation of litigation. In addition, work product protection is not absolute. Certain kinds of work product may be obtained by an adversary's showing of substantial need. As with the attorney-client privilege, work product protection may also sometimes be waived.
The area of law dealing with the attorney-client privilege and the work product doctrine is complex and constantly evolving. For example:
A federal magistrate judge in New York recently held that communications to and from a company's in-house attorney were not privileged because the attorney was not an active member of any state's bar (Gucci America, Inc. v. Guess?, Inc.). Although the decision was later overturned by a federal district judge for the same court, the magistrate's decision highlights the need for companies to verify that their in-house attorneys are authorized to practice law and in good standing.
The European Court of Justice (ECJ) ruled that the attorney-client privilege does not protect communications between company executives and in-house attorneys in the course of a European Commission antitrust investigation, on the basis that in-house attorneys are not sufficiently "independent" from their corporate employers (Akzo Nobel Chemicals Ltd. v. Commission). The refusal by the ECJ to extend the protection of the attorney-client privilege reminds in-house attorneys to exercise caution in the dissemination of their communications within a company.
Rule 26 of the Federal Rules of Civil Procedure was amended to extend work product protection to certain communications between attorneys and expert witnesses who are retained to testify on their client's behalf. Previously, virtually anything prepared by or shown to a testifying expert was discoverable in litigation.
The scope and application of the various privilege and secrecy rules vary widely from country to country. In-house attorneys advising companies in multiple jurisdictions should therefore be particularly careful. Failure to follow the specific rules that govern the creation (and proper maintenance) of the attorney-client privilege and work product protection may result in sensitive information falling into the hands of competitors and litigation adversaries.
This Attorney-client Privilege and Work Product Doctrine Toolkit contains several resources to help the in-house attorney maneuver the various privilege and secrecy rules throughout the US and the world.