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Losing the Privilege

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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