Issue: Attorney-Client Privilege (also known as Legal Professional Privilege or Solicitor-Client Privilege) and Work-Product Protection (also known as Litigation Privilege)

Significance: A robust application of the attorney-client privilege around the world is crucial in order “to encourage full and frank communication between attorneys and their clients” (Upjohn, 449 U.S. at 399). When clients are uninhibited by the fear of their statements to an attorney becoming evidence, attorneys are able to provide more thorough and accurate legal advice. The privilege also promotes the public interest by helping corporate clients assess and comply with their many obligations under the law. ACC constantly reviews cases to determine whether it should intervene to defend the privilege concerns of in-house counsel and their corporate clients.

The work product doctrine or litigation privilege is crucial to ensure that corporate clients and their attorneys can analyze and prepare for existing and anticipated litigation. Specifically, the work product rule preserves a zone of privacy in which counsel can prepare and develop legal theories and strategies “with an eye toward litigation,” without fear that their work product will be used against their clients. Hickman v. Taylor, 329 U.S. 495, 510-11 (1947). Like the attorney-client privilege, work product protection promotes the rendering of effective legal services as well as corporate compliance with the law. In the corporate context, the doctrine is particularly important insofar as it enables companies to obtain full and accurate legal advice regarding the litigation risks of proposed business transactions.

Description: The attorney-client privilege is “the oldest of the privileges for confidential communications known to the common law” (Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)). The privilege generally requires proof of the five Cs: (1) a Communication (oral or written) (2) between a Client (3) and Counsel (4) in Confidence (5) for the purpose of obtaining or providing legal Counsel.

The work product doctrine (or litigation privilege abroad) shields from discovery “documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent).” Fed.R.Civ.P. 26(b)(3)(A). There are two categories of work product: fact and opinion. Fact work product is discoverable only upon a showing of “substantial need” and by demonstrating that one cannot otherwise obtain the “substantial equivalent” of such materials without “undue hardship.” Fed.R.Civ.P. 26(b)(3)(A). Opinion work product consists of “the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation.” Fed. R. Civ. P. 26(b)(3)(B). Opinion work product is discoverable only upon a showing of rare and exceptional circumstances.

Frequently Asked Questions

Q: Are dual-purpose communications made for both legal and business purposes protected?
A: Yes. As the D.C. Circuit recently held (agreeing with ACC), the privilege applies so long as a “significant” purpose of the communication was to obtain or provide legal advice. In re Kellogg Brown & Root, Inc., 756 F.3d 754, 758-59 (D.C. Cir. 2014).

Q: Are internal investigations into employee misconduct protected by attorney-client privilege?
A: Internal investigations may be protected if one of their primary (or significant) purposes was to obtain legal advice and if they were conducted by or under the supervision of counsel.

Q: Who is the “client” in the corporate context?
A: In Upjohn, the Supreme Court rejected the “control group” theory that limited the privilege to communications between high-level managers and their attorneys. Upjohn adopted a functional approach to determining the “client” in the corporate context that examines whether the communications at issue were made by employees with relevant information that was necessary to secure legal advice.

Q: What materials does the work product doctrine protect?
A: Work product applies only to “documents and tangible things,” not to a witness’s testimony.

Q: Does work-product protection apply to non-attorneys?
A: Yes. In some jurisdictions, the rule extends to materials prepared for or by a “party or its representative.” Thus, there is no requirement that the communications be made to or by attorneys or are prepared by attorneys. In particular, material prepared by accountants may be protected by the work-product doctrine.

Q: How does the work-product doctrine differ from the attorney-client privilege?
A: First, work product is not limited to communications. Second, work product applies to materials prepared by parties and their representatives, even, in some jurisdictions, if no attorney is involved. Third, the work-product privilege is not automatically waived by disclosure to third persons. Rather, courts generally find a waiver only if the disclosure “substantially increases the opportunity for potential adversaries to obtain the information.” Frank Betz Assocs., Inc., v. Jim Walter Homes, Inc., 226 F.R.D. 533, 535 (D.S.C. 2005).

Q: What does the phrase “anticipation of litigation” mean?
A: In determining whether a document was prepared “in anticipation of litigation,” courts ask whether it was prepared or obtained “because of” the prospect of litigation. United States v. Roxworthy, 457 F.3d 590, 593 (6th Cir. 2006). The test has both subjective and objective elements: “(1) whether a document was created because of a party’s subjective anticipation of litigation, as contrasted with an ordinary business purpose, and (2) whether that subjective anticipation of litigation was objectively reasonable.” Id. at 594. “[L]litigation need not already have commenced or be imminent; rather, litigation must be a real possibility at the time the documents in question are prepared.” Evergreen Trading, LLC, 80 Fed.Cl. at 132. Litigation includes adversarial proceedings before an administrative tribunal. Id.

Attorney Client Privilege Advocacy

Filing Update: NJ Supreme Court Grants Leave to Appeal Privilege Determinations

  • ACC Position: 

    On February 6, 2018, the New Jersey Supreme Court granted a motion for leave to appeal and remanded to the Appellate Division to hear the appeal on the merits, in a case in which ACC filed amicus urging immediate review … Continue reading

ACC Argues Against the Improper Extension of Privilege Waiver to In-House Post-Complaint Communications and Work Product

  • ACC Position: 

    In a patent infringement case before the U.S. District Court in Delaware, Johns Hopkins University v. Alcon Laboratories, Inc., Alcon is relying on an opinion of counsel defense, and accordingly has been ordered to produce privileged documents relating to legal advice … Continue reading

ACC Argues the Importance of Immediate Appellate Review of Privilege Determinations in Amicus Filed with Supreme Court of New Jersey

  • ACC Position: 

    In Sampson v. 3M Company, the Appellate Division of the New Jersey Superior Court denied appellate review of a lower court determination that documents, argued by counsel to be privileged attorney-client communications, be produced. While taking no position on the … Continue reading

FILING UPDATE: Attorney-Client Privilege Rule Supported by ACC Finalized By USPTO

  • ACC Position: 

    On November 6, 2017, the US Patent and Trade Office issued a finalized rule that extends attorney-client privilege to both domestic and foreign patent agents with regard to proceedings before the Patent Trial and Appeal Board (PTAB). The rule more … Continue reading

ACC Files Letter Supporting Review of Litigation Privilege Issue in the Supreme Court of Canada

  • ACC Position: 

    ACC and its Canadian chapters sent a letter in support of Suncor Energy Inc.’s leave for appeal to the Supreme Court of Canada to review the Alberta Court of Appeal’s ruling in Alberta v Suncor Energy Inc. The Alberta Court … Continue reading

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