Protecting Our Work: The Attorney Work Product Doctrine
June 26, 2007
By George J. Ramos, Jr.
When most people think about a lawyer’s ability to protect their work, the term Attorney-Client privilege invariably comes to mind. Yet this is a misconception; in reality, attorneys have a much more powerful set of guidelines at their disposal: the attorney work product doctrine.
The "attorney work product" doctrine protects documents and theories
prepared by an attorney in the course of an investigation if litigation is pending or is anticipated. The most common questions associated with the attorney work product doctrine are: What specifically is protected under the doctrine? What and what does not count as anticipation of litigation? How far does the attorney work doctrine extend? Hopefully, this article will help guide you to a better understanding of this powerful and often misunderstood form of legal protection.
First, the specifics of what is protected from discovery by opposing counsel. Although there have been arguments as to the scope of what is considered an attorney’s “work”, it is generally accepted that an attorney's work includes statements, notes, reports, and other materials created in the course of preparing for litigation. These materials can also include interrogatories, signed statements, memoranda, briefs, and other information they have obtained in preparation for the defense or prosecution of a case.
In other words, the attorney work product doctrine acts as a safe; it protects a lawyer’s most valuable tool: their ability to prepare for trial unencumbered from the stress of opposing counsel discovering their trial strategy. Since the trial process can accurately be described as adversarial, it is of key importance to each lawyer to protect his thoughts, opinions, mental impressions, theories, and strategy from opposing counsel.
To most people, “Anticipation of litigation” can sound a bit like a loaded term. “If I thought about suing him ten years ago, then everything I’ve done in preparation for trial is protected, right?” Wrong. In order to meet the criteria of attorney work product, a document must be “prepared in anticipation of litigation”. This means that the doctrine doesn’t attach until a debatable claim has occurred. For example, if an employer believes that one of its employees has been embezzling money while working in the accounting department, it can hire an impartial, outside third party private investigator and attorney to begin preparing a case against the employee (the information they gather may be used for civil and possibly criminal prosecution by the District Attorney’s office). This is the point at which the ‘anticipation of litigation’ begins.
This leads to the wide reaching extent of the attorney work product doctrine. It is well recognized that non-attorneys can draft documents that are considered shielded by the attorney work product doctrine. The caveat is that these documents must have been authored under the general direction of the attorney. Think about our previous example: The employer has hired a qualified private investigator and is now discussing their options. They want to create a strong plan for prosecuting the embezzling employee. Early on in the investigation, is not uncommon for the private investigator to suggest that they bring in outside council to advise the employer and aid in the preparation of employment termination, and other legal action. The lawyer will direct and help the private investigators and employers navigate through sensitive issues that could adversely affect the employer’s business. Any work product resultantly produced by us (the private investigator) would then be provided to the attorney, and the attorney would then disseminate the information as they deem appropriate. Anticipating potential litigation, some of our cases today are conducted at the direction of counsel; thus, our work is protected by the attorney work product doctrine.
When taking on a case, any reputable private investigation firm has to consider the risks at hand: the attorney work product doctrine creates a foundation for in-depth investigation because it protects the work being performed by both the attorney and the licensed private investigator. Furthermore, it also protects us from interference from opposing counsel should there be litigation. Most importantly, it allows the thoughts of the attorney and private investigators to breathe freely in preparation for legal action. After all, an attorney’s thoughts are often home to their entire case.