Attorney–Client Privilege and Work Product Protection: Avoiding Litigation Pitfalls

Effective Strategies for Maintaining Confidentiality

Recording of a 90-minute CLE webinar with Q&A

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Conducted on Tuesday, May 13, 2008

Course Materials

Description

The attorney–client privilege is perhaps the most important challenge that attorneys face on a daily basis. Confidentiality is at the heart of the practice of law, and the intent of the privilege is to encourage full disclosure by the client. Maintaining the privilege is crucial.

Attorneys often equate the work product doctrine with the attorney–client privilege, despite the dramatic differences between the two. Failure to understand these differences can be damaging, and there are many areas where confidentiality can be jeopardized.

It is critical that both client and counsel understand the privilege, take steps to avoid the areas where privilege is commonly destroyed, and implement best practices to maintain confidentiality.

Listen as our authoritative panel of litigation specialists examines common pitfalls, waiver of the privilege, work product protection, the differences between the privilege and work product doctrine, and best practices for maintaining confidentiality.

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Outline

  1. Common pitfalls
    1. Communications with experts
    2. Dealing with former employees
    3. Witness preparation
    4. Joint defense relationships
    5. Privilege logs
    6. Email/electronic communication
  2. Waiver
    1. Who can waive the privilege?
    2. Implied waiver
    3. Boilerplate disclaimers
    4. Waiver to governmental agencies
    5. Security of communication
    6. Inadvertent disclosure
      1. Repercussions for sending attorney
      2. Obligations of receiving attorney
      3. Implications for privilege
  3. Work product protection
    1. Qualifications on work product protection
    2. Protecting counsel’s mental impression
    3. Exceptions
    4. Waiver
  4. Best practices for preserving the privilege
    1. Common interest arrangements
    2. Considerations for protecting the privilege in email
    3. Encryption and passwords
    4. Metadata
    5. Education/training

Benefits

The panel reviewed these and other key questions:

  • Which communications and documents within the attorney–client relationship are protected and which are not?
  • Does the attorney–client privilege extend to former employees of the client?
  • How do joint defense relationships jeopardize confidentiality?
  • What steps should counsel and clients take to maintain confidentiality of communications and documents?

Faculty

David M. Greenwald
David M. Greenwald
Partner
Jenner & Block

Mr. Greenwald is a tested trial lawyer with over 27 years of commercial litigation, domestic and international...  |  Read More

Douglas R. Richmond
Douglas R. Richmond
Senior Vice President
Aon Risk Services

He advises law firm clients on professional responsibility and liability issues. Before joining Aon, he was a partner...  |  Read More

Stuart M. Altman
Stuart M. Altman
Partner
Hogan & Hartson

He focuses on white collar criminal investigations and defense, including representing clients in securities...  |  Read More