Attorney-Client Privilege and Work Product Doctrine Comprehensive Overview (On-Demand)

Course Description

In American legal jurisprudence, the attorney-client privilege is frequently referred to as “sacrosanct,” with origins pre-dating the Constitution. Although it is commonly understood to be an “absolute privilege,” the privilege does not actually apply to all aspects of the attorney-client relationship. This CLE will begin with a general overview of the basics of the Attorney-Client Privilege & Work Product Doctrine, and then engage a more detailed analysis of emerging issues and technology considerations; key differences between attorney-client privilege and the work product doctrine; selected differences between state privilege law and federal privilege law and practical tips for protecting and promoting work product, attorney-client privilege and confidentiality

Principles

• Basics of Attorney-Client Privilege and Work Product Doctrine
• Key Differences Between Attorney-Client Privilege and Work Product Doctrine
• Key Differences Between State and Federal Laws
• Technology and its Impact on Attorney-Client Privilege, Confidentiality, and the Work Product Doctrine
• Ethical Considerations, Practice Pointers and Tips for Protecting and Promoting Confidentiality, Attorney-Client Privilege and Work Product Doctrine

Syllabus

1. Introduction
   • Overview of course
   • General introduction to the concepts of confidentiality, attorney-client privilege, and the work product doctrine
2. Basics of Attorney-Client Privilege
   • Definition, purpose and history of attorney-client privilege
   • Elements of attorney-client privilege:
     • • Who is the client
       • When does the attorney-client privilege attach
       • Communication
       • Made in confidence
       •  Purpose of seeking, obtaining, or furnishing legal advice or assistance
   • Examples of privileged and non-privileged communications
   • Invoking attorney-client privilege
   • Exceptions to attorney-client privilege
   • Waiver of attorney-client privilege
   • Sources of attorney-client privilege (federal and state)
   • Attorney’s duty of confidentiality versus attorney-client privilege
3. Basics of Work Product Doctrine
   • Definition, purpose of, and history of work product doctrine;
   • Elements of work product doctrine:
     • • What constitutes work product
       • Materials prepared in anticipation of litigation or trial
       • During the course of representation
   • Examples of work product
   • Who can produce work product
   • Who can invoke the protections of the work product doctrine
   • Exceptions and waiver of the work product doctrine
   • Impact of certain disclosures of work product:
     • • Disclosure of work product to non-testifying experts
       • Disclosure of work product to testifying experts
       • Disclosure of work product to auditors
       • Disclosure of work product to the Government
       • Disclosure to third parties
   • Work product doctrine inapplicable to trial documents
   • Sources of work product doctrine (state and federal)
4. The Difference between Attorney-Client Privilege and Work Product Doctrine
   • Differences in the level of protection and waiver;
   • Invoking both the attorney-client privilege and work product doctrine; and
   • Examples of disclosures that may result in waiver of attorney-client privilege, but not the work product doctrine.
5. Selected Differences between State and Federal Laws
   • Attorney-Client Privilege
   • Work Product Doctrine
6. Technology and its Impact on Attorney-Client Privilege, Confidentiality and Work Product Doctrine
   • E-Communications: issues involving e-mail, instant messaging, text messaging and other forms of electronic communications
     • • Shared smartphones and other electronic devices
       • Shared e-mail and access to e-mail accounts
   • Issues related to client use of social media, blogs, and the internet
   • Issues related to attorney use of social media, blogs, online reviews, and attorney communications on the Internet
   • Issues related to data and document storage, cloud computing, mobile devices, and third-party vendors
   • E-Discovery and complications with production of voluminous data:
     • • “Claw-Back” and “Quick-Peak” Agreements
       • Party agreements
       • Court orders
7. Ethical Considerations, Practice Pointers and Tips for Protecting and Promoting Confidentiality, Attorney-Client Privilege and Work Product Doctrine
   • General
   • Corporate issues and considerations
   • Trans-Border and multi-national issues and considerations

Instructors

Kathleen C. Chavez, Esq.

Elizabeth C. Chavez, Esq.