Attorney Client Privilege & Work Product Doctrine Flashcards
The classic definition of the attorney-client privilege from Wigmore on Evidence is as follows:
1.
2. ?
3.
4.
5.
6.
7.
8.
From a professional legal advisor in his capacity as such,
The classic definition of the attorney-client privilege from Wigmore on Evidence is as follows:
1. ?
2.
3.
4.
5.
6.
7.
8.
Where legal advice of any kind is sought
The classic definition of the attorney-client privilege from Wigmore on Evidence is as follows:
1.
2.
3. ?
4.
5.
6.
7.
8.
the communications relating to that purpose,
The classic definition of the attorney-client privilege from Wigmore on Evidence is as follows:
1.
2.
3.
4. ?
5.
6.
7.
8.
made in confidence
The classic definition of the attorney-client privilege from Wigmore on Evidence is as follows:
1.
2.
3.
4.
5. ?
6.
7.
8.
by the client
The classic definition of the attorney-client privilege from Wigmore on Evidence is as follows:
1.
2.
3.
4.
5.
6. ?
7.
8.
are at his insistence permanently protected.
The classic definition of the attorney-client privilege from Wigmore on Evidence is as follows:
1.
2.
3.
4.
5.
6.
7. ?
8.
from disclosure by himself or by the legal adviser,
The classic definition of the attorney-client privilege from Wigmore on Evidence is as follows:
1.
2.
3.
4.
5.
6.
7.
8. ?
except when the protection is waived
- Where legal advice of any kind is sought
Meaning?
The client must be communicating with the attorney for purposes of securing legal advice.
- From a professional legal advisor in his capacity as such,
Meaning?
Anybody working in the law office is governed by the privilege.
- The communications relating to that purpose.
Meaning?
The communication has to relate to that and that is fairly broad. If you are calling your lawyer and talking about the football game that is not privilege. It must connect to the issue and that is what is privileged.
- made in Confidence
Meaning?
The attorney and the client must believe that the communication is being made in confidence.
Made in confidence - you have to keep it confidential. Fairly common for people to come in and bring with them a support mechanism (ex. Sibling, good friend). If they come and bring somebody in the problem, is you had to kick someone else out because they are not bound by privilege. It is not protected if some third-party is there, it is effectively waiver.
- By the client
Meaning?
Client always owns the privilege! Privilege is held by the client and only they can give authorization to tell somebody.
Who owns the privilege?
The client
- Are at his insistence permanently protected.
- from disclosure by himself or by the legal adviser.
Meaning?
The privilege exists to protect the client and can only be waived by the client. Privileged is owned by the client, this means only the client can authorize you to break privilege.
- Except when protection is waived.
the privilege must not be waived.
The privilege protects only communications between the attorney and client, not the _________________ or ________ ____________ __________ _______________.
information
facts underlying those communications
The privilege protects only ______________ between the attorney and client, not the information or facts underlying those communications.
communications
What somebody has ___________ is protected.
What somebody is______ _______ _____ is not.
You have an obligation and duty to report what somebody is_____ ______ _______.
You have an obligation to report __________ crimes not _________ crimes.
done
about to do
about to do
future
past
There has to be a triggering event. If you do it all the time it is not in _________ ____ _________.
anticipation of litigation
There has to be a ________ _________. If you do it all the time it is not in anticipation of litigation.
triggering event
In order to overcome the protections of the attorney work-product doctrine, a requesting party must show both a _________ ________ for the information and that it is _______ _______ ________ ________ _______ ________.
substantial need
not available from any other source
In order to overcome the protections of the attorney work-product doctrine, a requesting party must show both a “substantial need” for the info and that it is not available from any other source.
In other words, it must present some ______ ________ that the information is important to its case.
solid indication
In order to overcome the protections of the attorney work-product doctrine, a requesting party must show both a “substantial need” for the info and that it is not available from any other source.
In other words, it must present some solid indication that the information is important to its case.
The requesting party must also ___________ an _________ to obtain _____ __________ without _____ _______.
demonstrate
inability
equivalent evidence
undue hardship
In order to overcome the protections of the attorney work-product doctrine, a requesting party must show both a “substantial need” for the info and that it is not available from any other source.
In other words, it must present some solid indication that the information is important to its case.
Even if the requesting party makes this showing, the “________ _________, ____________, ___________ or _________ ___________ of a party’s attorney” are still protected.
mental impressions
Conclusions
Opinions
legal theories
What is protected even if there is a substantial need for the info and it is not available from any other source?
Mental impressions
Conclusions
Opinions
or
Legal Theories
of a party’s attorney are still protected.
Some courts have interpreted this requirement to mean “primarily or exclusively to assist in litigation.”
The majority of courts have taken a broader view, protecting documents “_________ ___________ _______ __________.”
prepared because of litigation
This approach looks to the date a document came into existence, the date of attorney involvement, and the date on which the lawsuit was first filed or threatened.
Material generated in the ordinary course of business is generally not considered to have been developed in ________ _____ _______.
This may raise difficulties when the client faces recurring litigation that is highly similar in nature.
anticipation of litigation
Protects only communications between attorney and client (and all of the staff at the firm).
Attorney- Client Privilege
Protects all Documents and Tangible Things.
Work-Product Doctrine
Communication must be made in confidence.
Attorney-Client Privilege
Extends to material prepared by non-attorney reps. (legal assistant goes out and does something).
Work-Product Doctrine
Extends to all communications, so long as legal advice is being sought. (emails, phone calls, text messages, etc.)
Attorney- Client Privilege
Only extends to material prepared in anticipation of litigation or trial.
Work-Product Doctrine
If privilege is established, information not discoverable unless waived by client.
Attorney-Client Privilege
Even where it exists, can be overcome by showing of substantial need (except for mental impressions of attorney).
Work-Product Doctrine
