Are in-house counsel communications privileged?

Although historically courts held there was no privilege, more recently courts—including one California court—have concluded that communications between attorneys and their firm’s in-house counsel are privileged.

What is covered by work product privilege?

Overview. The work product doctrine states that an adverse party generally may not discover or compel disclosure of written or oral materials prepared by or for an attorney in the course of legal representation, especially in preparation for litigation.

Who does work product privilege belong to?

Proc. § 2018.030. Even though the attorney client privilege and the work product doctrine are similar in many ways, the holders of these privileges are distinct. Rather than the client, the attorney is the holder of work product protection.

Is work product a privilege?

Material prepared in anticipation of litigation. Generally, work product is privileged, meaning it is exempt from discovery.

Are communications between two attorneys privileged?

As a general rule, any communications between a person and their attorney are presumed to be confidential—and thus covered by the lawyer-client privilege. If the prosecutor wants to argue that they are not, it is his/her burden to prove it.

Who can assert attorney-client privilege?

2d 330, 334 (1993). The privilege is held by the client, who has the sole authority to waive the privilege. Nonetheless, the attorney is required to assert or invoke the privilege when necessary on behalf of the client, even without an express instruction by the client. There are few exceptions to the privilege.

Who can assert work product privilege?

Whoever creates work product has the right to assert the privilege – typically attorneys and their clients (or “representatives” of either). So long as it was created in anticipation of litigation and meets the other prongs of the test set out above in No. 1.

How do I know if a file is privileged?

Accurately Identify Privileged Documents Because of this strict requirement, maintaining a rolling privilege log citing, in detail, each document to be withheld, along with dates, purpose, authors, recipients, document description, and what type of privilege is being asserted, is invaluable.

What is the difference between work product and attorney-client privilege?

Decision Highlights a Key Difference Between Attorney-Client Privilege and Work Product Doctrine Protection. The attorney-client privilege provides absolute but fragile protection. In contrast, work product doctrine protection can be overcome — but offers more robust safety than the privilege.

At what point does attorney-client privilege begin?

Generally, the attorney-client privilege applies when: an actual or potential client communicates with a lawyer regarding legal advice. the lawyer is acting in a professional capacity (rather than, for example, as a friend), and. the client intended the communications to be private and acted accordingly.

What is not covered under attorney-client privilege?

The attorney-client privilege does not apply to every communication with an attorney. For the privilege to exist, the communication must be to, from, or with an attorney, and intended to be confidential. In addition, the communication must be for the purpose of requesting or receiving legal advice.

Does the work product privilege apply to legal advice?

There does not need to be a communication for the privilege to apply, nor does it necessarily need to be confidential. Work product does not need to be “legal advice.” It’s difficult to waive the work product privilege, e.g., providing it to “friendly” third-parties (like between father and son) is not a waiver.

Does the privilege protect in-house counsel?

Additionally, in-house counsel should keep in mind that even if a communication is made predominantly for the purpose of legal advice, the privilege protects only the communication itself, not the underlying facts. Claxton v. Thackston, 201 Ill. App. 3d 232, 238 (1st Dist. 1990).

What is the difference between attorney-client privilege and work product privilege?

The attorney-client privilege belongs to and can only be asserted by the client. Work product is different. Whoever creates work product has the right to assert the privilege – typically attorneys and their clients (or “representatives” of either).

What is the work product privilege in civil procedure?

Most U.S. states have equivalent rules in their civil procedure codes (but for my purposes I am going to discuss the federal version). The work product privilege protects from discovery those “documents and tangible things” that are “prepared in anticipation of litigation” by (or for) a party or its representative.