What are the Attorney-Client Privilege (A-C) and the Attorney Work Product Doctrine in the U.S.?

In the United States there are two types of Legal Professional Privilege:

⚖️ The Attorney-Client Privilege; and

⚖️ The Attorney Work Product Doctrine.

What is the Attorney-Client Privilege?

Attorney-Client Privilege refers to a legal privilege that works to keep confidential communications between an attorney and their client private.

Communications made to and by a lawyer in the presence of a third party may not be entitled to this privilege on grounds that they are not confidential.

The privilege can be affirmatively raised in the face of a legal demand for the communications, such as a discovery request or a demand that the lawyer testify under oath. A client, but not a lawyer, who wishes not to raise attorney-client privilege as a defense is free to do so, thereby waiving the privilege.

This privilege exists only when there is an attorney-client relationship.  

Under the Model Rules of Professional Conduct, the attorney-client privilege exists for a potential client. Under Togstad v. Vesely, 291 N.W.2d 686 (1980), a non-client can claim to be a prospective client if:

⚖️ The non-client seeks legal advice,

⚖️ Then the non-client reasonably relies on that advice as legal advice, and 3) the attorney does not attempt to dissuade the non-client from relying on the advice.

⚖️ The non-client is considered a prospective client under Togstad, then the attorney-client privilege will extend to that prospective client.

What is the Attorney Work Product Doctrine?

Work Product includes all material prepared in anticipation of litigation.

Generally, Work Product is privileged, meaning it is exempt from discovery.

However, there are exceptions.

Work Product is divided into two categories: ordinary and opinion.

Ordinary Work Product is the result of gathering basic facts or conducting interviews with witnesses, and is discoverable if there is a showing of substantial need, like a witness that becomes unavailable.

Opinion Work Product is the record of an attorney’s mental impressions, ideas or strategies, and is almost never subject to discovery.  

The presumption of non-disclosure is a rebuttable one.

Sources:

Cornell Law School LII Legal Information Institute ➲ Definition of Attorney-Client Privilege

‍Cornell Law School LII Legal Information Institute ➲ Definition of Work Product

If you have any questions, please contact our legal team for assistance.

Credits:

This FAQ was created by James D. Ford Esq., GAICD CIPP/US | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.