Attorney Client Privilege & Work Product Doctrine

Question 1

The classic definition of the attorney-client privilege from Wigmore on Evidence is as follows:
1.
2. ?
3.
4.
5.
6.
7.
8.

Answer 1

From a professional legal advisor in his capacity as such,

Question 1

The classic definition of the attorney-client privilege from Wigmore on Evidence is as follows:
1. ?
2.
3.
4.
5.
6.
7.
8.

Answer 1

Where legal advice of any kind is sought

Question 2

The classic definition of the attorney-client privilege from Wigmore on Evidence is as follows:
1.
2.
3. ?
4.
5.
6.
7.
8.

Answer 2

the communications relating to that purpose,

Question 3

The classic definition of the attorney-client privilege from Wigmore on Evidence is as follows:
1.
2.
3.
4. ?
5.
6.
7.
8.

Answer 3

made in confidence

Question 4

The classic definition of the attorney-client privilege from Wigmore on Evidence is as follows:
1.
2.
3.
4.
5. ?
6.
7.
8.

Answer 4

by the client

Question 5

The classic definition of the attorney-client privilege from Wigmore on Evidence is as follows:
1.
2.
3.
4.
5.
6. ?
7.
8.

Answer 5

are at his insistence permanently protected.

Question 6

The classic definition of the attorney-client privilege from Wigmore on Evidence is as follows:
1.
2.
3.
4.
5.
6.
7. ?
8.

Answer 6

from disclosure by himself or by the legal adviser,

Question 7

The classic definition of the attorney-client privilege from Wigmore on Evidence is as follows:
1.
2.
3.
4.
5.
6.
7.
8. ?

Answer 7

except when the protection is waived

Question 8

1. Where legal advice of any kind is sought

Meaning?

Answer 8

The client must be communicating with the attorney for purposes of securing legal advice.

Question 9

2. From a professional legal advisor in his capacity as such,

Meaning?

Answer 9

Anybody working in the law office is governed by the privilege.

Question 10

3. The communications relating to that purpose.

Meaning?

Answer 10

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.

Question 11

4. made in Confidence

Meaning?

Answer 11

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.

Question 12

5. By the client

Meaning?

Answer 12

Client always owns the privilege! Privilege is held by the client and only they can give authorization to tell somebody.

Question 13

Who owns the privilege?

Answer 13

The client

Question 14

6. Are at his insistence permanently protected.
7. from disclosure by himself or by the legal adviser.

Meaning?

Answer 14

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.

Question 15

8. Except when protection is waived.

Answer 15

the privilege must not be waived.

Question 16

The privilege protects only communications between the attorney and client, not the _________________ or ________ ____________ __________ _______________.

Answer 16

information
facts underlying those communications

Question 17

The privilege protects only ______________ between the attorney and client, not the information or facts underlying those communications.

Answer 17

communications

Question 18

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.

Answer 18

done

about to do

about to do

future

past

Question 19

There has to be a triggering event. If you do it all the time it is not in _________ ____ _________.

Answer 19

anticipation of litigation

Question 20

There has to be a ________ _________. If you do it all the time it is not in anticipation of litigation.

Answer 20

triggering event

Question 21

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 _______ _______ ________ ________ _______ ________.

Answer 21

substantial need
not available from any other source

Question 22

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.

Answer 22

solid indication

Question 23

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 _____ _______.

Answer 23

demonstrate

inability

equivalent evidence

undue hardship

Question 24

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.

Answer 24

mental impressions

Conclusions

Opinions

legal theories

Question 25

What is protected even if there is a substantial need for the info and it is not available from any other source?

Answer 25

Mental impressions

Conclusions

Opinions

or

Legal Theories

of a party’s attorney are still protected.

Question 26

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 “_________ ___________ _______ __________.”

Answer 26

prepared because of litigation

Question 27

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.

Answer 27

anticipation of litigation

Question 28

Protects only communications between attorney and client (and all of the staff at the firm).

Answer 28

Attorney- Client Privilege

Question 29

Protects all Documents and Tangible Things.

Answer 29

Work-Product Doctrine

Question 30

Communication must be made in confidence.

Answer 30

Attorney-Client Privilege

Question 31

Extends to material prepared by non-attorney reps. (legal assistant goes out and does something).

Answer 31

Work-Product Doctrine

Question 32

Extends to all communications, so long as legal advice is being sought. (emails, phone calls, text messages, etc.)

Answer 32

Attorney- Client Privilege

Question 33

Only extends to material prepared in anticipation of litigation or trial.

Answer 33

Work-Product Doctrine

Question 34

If privilege is established, information not discoverable unless waived by client.

Answer 34

Attorney-Client Privilege

Question 35

Even where it exists, can be overcome by showing of substantial need (except for mental impressions of attorney).

Answer 35

Work-Product Doctrine