The Attorney-Client Privilege and the Work Product Doctrine: A Practitioner's Guide

"I wrote this book to describe attorney-client privilege and work product principles from the perspective of a practicing lawyer rather than an academician. The attorney-client privilege is the most important doctrine that every lawyer must know, because every communication in which the lawyer engages can implicate that protection. And the work product doctrine obviously involves litigators' communications. I thought that lawyers could use practical advice to help them make this sort of fast-paced privilege and work product decisions that practicing lawyers make every day." - Thomas E. Spahn, author

The attorney-client and work product protections can profoundly affect the outcome of litigation, especially when invoked or challenged early in the process. This expanded edition has the practical advice that litigators need in making decisions during privilege reviews or writing briefs in the midst of discovery disputes.

The material is presented in a way that greatly assists the practitioner in identifying and addressing the often subtle issues that can arise in this area. Several chapters are devoted to the subject of asserting and litigating the protections. This publication is national in scope and thoroughly researched with citations to federal and state law.

NOW AVAILABLE! A condensed version of this book, focused on Virginia-specific issues. A Virginia-Specific Summary Guide: The Attorney-Client Privilege and the Work Product Doctrine is designed to help Virginia practitioners understand general attorney-client and work product concepts, with a specific focus on Virginia law addressing those evidentiary protections.

Tom Spahn continues to monitor attorney-client and work product cases throughout the country, and has made summaries of those cases available at an online database at http://attorneyclientprivilege.mcguirewoods.com. Though available to everyone, the database will be most beneficial to those owning either the Practitioners Guide or the Summary Guide, as the database is keyed to the chapter and section headings common to both books. By using the database in concert with the book, you’ll have the most up-to-date information on these very important, and often misunderstood and misapplied, legal doctrines.

You may also be interested in:

A Virginia-Specific Summary Guide: The Attorney-Client Privilege and the Work Product Doctrine	Virginia Civil Practice Forms	Federal Civil Practice in Virginia	A Guide to the Rules of Evidence in Virginia	Objections: Interrogatories, Depositions, and Trial
Civil Discovery in Virginia	Appellate Practice - Virginia and Federal Courts	Attorney Fees and Sanctions - Virginia and Federal Courts	Insurance Law in Virginia	The Virginia Arbitration Roadmap

 

TABLE OF CONTENTS

Chapter 1:  Organization of the Book

Chapter 2:  Attorney-Client Privilege: Introduction snd Basic Principles

Chapter 3:  Clients: Introduction and Basic Principles

Chapter 4:  Client Relationships

Chapter 5:  Joint Clients

Chapter 6:  Corporate Clients

Chapter 7:  The “Fiduciary Exception”

Chapter 8:  Client Agents/Consultants

Chapter 9:  Lawyers

Chapter 10:  Lawyer Agents/Consultants

Chapter 11:  Unprotected Background Information

Chapter 12:  Content and the “Communication” Element

Chapter 13:  Content: Legal Advice Requirement

Chapter 14:  Analyzing the Lawyer’s Role

Chapter 15:  Business and Other Nonlegal Advice

Chapter 16:  Client-to-Lawyer Communications

Chapter 17:  Lawyer-to-Client Communications

Chapter 18:  The Crime-Fraud Exception

Chapter 19:  Presence of Third Parties

Chapter 20:  The Joint Defense/Common Interest Doctrine

Chapter 21:  Intent to Disclose Content

Chapter 22:  Internal Corporate Investigations and Insurance

Chapter 23:  Waiver of the Privilege

Chapter 24:  Power to Waive the Privilege

Chapter 25:  Express Waiver

Chapter 26:  Intentional Express Waiver

Chapter 27:  Inadvertent Express Waiver

Chapter 28:  Implied Waiver

Chapter 29:  The “At Issue” Doctrine

Chapter 30:  Subject Matter Waiver

Chapter 31:  Scope of a Subject Matter Waiver

Chapter 32:  Waiver: New Rules and Public Policy Debates

Chapter 33:  Work Product Doctrine: Historic Perspective

Chapter 34:  Creating and Asserting Work Product Protection

Chapter 35:  Context and Timing of Work Product

Chapter 36:  “Litigation” Element

Chapter 37:  “Anticipation of Litigation” Element

Chapter 38:  “Motivation” Element

Chapter 39:  Work Product Content

Chapter 40:  Fact Work Product

Chapter 41:  Opinion Work Product

Chapter 42:  Facts Reflecting the Lawyer’s Opinion

Chapter 43:  Protection for Internal Corporate Investigations

Chapter 44:  Overcoming Work Product Protection

Chapter 45:  Overcoming Fact Work Product Protection

Chapter 46:  Overcoming Opinion Work Product Protection

Chapter 47:  Power to Waive Work Product Protection

Chapter 48:  Intentional, Inadvertent, or Implied Waiver

Chapter 49:  Disclosure of Work Product to and by Experts

Chapter 50:  Subject Matter Waiver: Applicability and Scope

Chapter 51:  Asserting and Litigating the Protections

Chapter 52:  Source and Choice of Attorney-Client Privilege Law

Chapter 53:  Source and Choice of Work Product Law

Chapter 54:  Assertingt he Protections

Chapter 55:  Privilege Logs

Chapter 56:  Evidentiary Support

Chapter 57:  Litigating the Protections

Chapter 58:  Other Discovery Issues

Chapter 59:  Courts’ Role

Chapter 60:  Appellate Review

Table Of Authorities

Index

Author

Thomas E. Spahn

Thomas E. Spahn has practiced law as a commercial litigator with McGuireWoods since graduating magna cum laude from Yale University and receiving his J.D. from Yale Law School in 1977. He regularly advises a number of Fortune 500 companies on issues involving ethics, conflicts of interest, the attorney-client privilege, and corporate investigations.

Mr. Spahn has received the Virginia Law Foundation’s highest award for Continuing Legal Education efforts; a special commendation from the Virginia State Bar “in recognition of his outstanding service to the Bar”; and the Virginia Bar Association’s William B. Spong, Jr. Professionalism Award and Walker Award of Merit. He is a Member of the American Law Institute and a Fellow of both the American Bar Foundation and Virginia Law Foundation. He was also selected as the 2013 metro-Washington DC “Lawyer of the Year” for “Bet the Company Litigation” by The Best Lawyers in America (Woodward/White, Inc.).

In addition to authoring this book on the attorney-client privilege and the work product doctrine, Mr. Spahn has researched and written several editions of The Law of Defamation in Virginia, another Virginia CLE publication, and contributes chapters to several other Virginia CLE handbooks as well. He has also published a book on ethics issues facing Virginia in-house lawyers and written over 75 articles that have appeared in both Virginia and national publications. The ABA’s General Practice Section chose his article on Litigation Ethics in the Modern Age as one of the “Best Articles Published by the ABA” in 2004.

Since 1988, Mr. Spahn has spoken at more than 1,000 CLE programs throughout the United States and in several foreign countries. In March 2009, he was invited to Reykjavik, Iceland, to discuss an ethics issue on Iceland’s leading news and interview show. In July 2012, he was invited to Erbil, Iraq, to participate in a panel assisting the Kurdistan Bar Association in establishing ethics rules.

Mr. Spahn has served on the ABA Standing Committee on Ethics and Professional Responsibility; on the Virginia State Bar Standing Committee on Legal Ethics; as the Reporter for the Committee that drafted Virginia’s ethics Rules; as Chairman of The Virginia Bar Association’s Professionalism Task Force and Commission on Professionalism; on the Committee that revised Virginia’s lawyer discipline rules; on the faculty for the Professionalism Course that all new Virginia lawyers attend; and on the Virginia Judicial Ethics Advisory Committee. After personally reading, summarizing, and categorizing over 1,600 Virginia Bar Legal Ethics Opinions, Mr. Spahn made his work available to the public online through his bio page on the McGuireWoods website.

The Attorney-Client Privilege and the Work Product Doctrine: A Practitioner's Guide