The last several Privilege Points have emphasized the different waiver implications of disclosing privileged communications and protected work product. For the most part, the distinctions rest on the very different societal benefits and costs of the ancient attorney-client privilege and the relatively new work product doctrine.
In Stevens v. Sullum, the court explained that the "attorney-client privilege serves laudable purposes and thus is '[w]orthy of maximum protection'" — but "obstructs the truth-finding process and is to be construed narrowly." Civ. A. No. 3:20-CV-01911, 2023 U.S. Dist. LEXIS 31485, at *13-14 (M.D. Pa. Feb. 24, 2023) (alteration in original) (citation omitted). So "[t]he privilege 'protects only those disclosures — necessary to obtain informed legal advice — which might not have been made absent the privilege.'" Id. at *14 (citation omitted). In contrast, "the work product doctrine promotes the adversary system directly by protecting the confidentiality of papers prepared by or on behalf of attorneys in anticipation of litigation." Id. at *15.
Lawyers should remember these two contrasting societal interests, which underlie important distinctions in the evidentiary protections’ creation and (especially) the waiver implications of disclosing protected communications or documents to third parties.
Published May 22, 2023.
