Attorney work product is the legal work that an attorney performs or
supervises. It does not include communications with the client because these
are protected by the attorney-client privilege. An independent investigation
that the attorney carries out for the client is work product. The key
distinction involves whether the work in question contains information obtained
from the client. The reason for making this distinction is that information
protected by the attorney-client privilege is (almost) never available to
discovery. Attorney work product is available, however, if the opposing party
can show that justice would be denied if the work product was unavailable.
Assume that a defense attorney made detailed notes from a medical chart, and
the chart later disappeared. The plaintiff's attorney could get access to the
notes if the judge decided that this was necessary for a just proceeding. In
contrast, if the physician defendant communicated incriminating information
about Medicaid fraud in the patient's care, that information would be protected
if the chart disappeared. The prosecutor could not obtain that information even
if it was vital to the case against the physician. In practice, the distinction
between attorney work product and attorney-client communications is seldom
made; judges tend to protect both equally.
When privileged information is mixed with unprivileged information, the courts
usually disallow the legal privilege for all the information. If a physician
files a letter from defense counsel in the patient's medical record, this
letter might lose its legal privilege when the plaintiff obtains the medical
records. This conservative attitude stems from the underpinnings of legal
privilege. Privilege is a statutory doctrine intended to encourage people to
use legal counsel in the hope that this will increase compliance with the laws.
(This applies only to civil law; privilege in criminal law is based on
constitutional mandates.) Although the full extent of legal privilege is
uncertain, the courts continue to clarify the extent of legal privilege.
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