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The Differences between the Attorney-Client Privilege and the Work Product Doctrine

The Differences between the Attorney-Client Privilege and the Work Product Doctrine

The attorney-client privilege and the work product doctrine are two important concepts in the litigation process and the law in general.

At first glance, you may think the attorney-client privilege and the work product doctrine are interchangeable and govern the same exact scope of information, but that is not the case. According to the Cornell Law School Legal Information Institute, the “attorney-client privilege refers to a legal privilege that works to keep confidential communications between an attorney and his or her client secret.”  On the other hand, the Cornell Law School Legal Information Institute proclaims “the work product doctrine states that an adverse party generally may not discover or compel disclosure of written or oral materials prepared by or for an attorney in the course of legal representation, especially in preparation for litigation.” 

To have a better understanding of the two legal concepts keep the following few characteristics in mind:

1.Communication

Communication is a key part of any attorney-client relationship. In order for the attorney-client privilege to be involved there must be some sort of communication between the attorney and the client. With that said, no communication is required for the work product doctrine. Memorandums and other notations will most likely be protected if those documents were made in anticipation of litigation.

2.Litigation Requirement

You would assume in order for both of these legal concepts to be in effect that litigation must be commenced. That is not necessarily the case. The attorney-client privilege protects legal advice regardless of whether you have filed suit against a defendant or if someone filed suit against you. In regard to the litigation requirement and the work product doctrine, the crucial phrase is “in anticipation of litigation.” The work product doctrine protects documents, notes, and other materials that were created in anticipation of litigation, but not materials that were not created for such a purpose.

3.Duration

The duration of the attorney-client privilege and the work product doctrine may differ depending on the court. The attorney-client privilege normally lasts forever; while, the work product doctrine may be limited to the litigation and can be terminated when the litigation ceases. 

The attorney-client privilege and the work product doctrine do have some basic similarities, but it is important to understand some of the fundamental differences between the two legal concepts. Although the above list does not encompass all the differences between the attorney-client privilege and the work product doctrine, it provides an insight into some of the underlying distinctions.

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