Duhaime's Law Dictionary


Attorney Work Product Definition:

A privilege that shields from discovery, the private notes or other documents of a lawyer as she or he, or their agents, prepare in the context of a matter considered for litigation.

Related Terms: Client-Solicitor Privilege

Often stated as the work-product doctrine1 or even the work-product rule. Further, some present the privilege using a hyphen, as in attorney-work product.

Similar to the litigation privilege.1

In the context of managing a file, many of which are commenced under the shadow of litigation, lawyers (attorneys) often document a variety of private work documents such as, but not at all limited to, private impressions of the client, their family or other relevant individuals or of witnesses or of the relative strengths and weaknesses of their client's position and that of the other side; even opinions on judge's, rulings and other lawyers.

attorney work productRecognizing the unique feature of an attorney's file and contents thereof, the United States Supreme Court unequivocally recognized the attorney work product privilege in the 1947 case, Hickman v Taylor, Justice Murphy penning the opinion of the court:

"Historically, a lawyer is an officer of the court and is bound to work for the advancement of justice while faithfully protecting the rightful interests of his clients. In performing his various duties, however, it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client's case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients' interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways — aptly though roughly termed by the Circuit Court of Appeals in this case as the 'work product of the lawyer'.

"Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney's thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served."

The privilege hinges on the theory that the courts must protect against the disclosure of the recorded and often evolving, if not private and personal impressions, conclusions, opinions, or legal theories of a party's attorney concerning litigation.

Adopting words from another case, Justice William Renquist of the United States Supreme Court used these words:

"(I)t is essential that a lawyer work with a certain degree of privacy and reasoned that if discovery of the material sought were permitted much of what is now put down in writing would remain unwritten. An attorney's thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served."2

"Like most privileges," wrote Justice Howard Tallman of the United States Bankruptcy Court in Re Oltmann, "the attorney work product privilege may be waived. In most cases, work product reflecting the legal theories or opinions of a parties' attorney or the attorney's agent receive almost absolute protection. However, the vitality of the adversary system requires that even non-opinion work product receive a high degree of protection."

In a 2013 United States Bankruptcy Court case, Fundamental Long Term Care, Justice Michael Williamson adopted these words:

"The purpose of shielding attorney work product from disclosure is to protect the adversarial process by providing an environment of privacy in which a litigator may creatively develop strategies, legal theories, and mental impressions outside the ordinary realm of federal discovery provisions, thereby insuring that the litigator's opponent is unable to ride on the litigator's wits."

In the United States of America, circa 2013, Rule 26(b)(3) of the Federal Rules of Civil Procedure presents a codification of the attorney work product privilege as follows:

"Ordinarily, a party may not discover 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)."

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