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Understanding What The Attorney Work Product Is And How It Differs From Privilege

Communications between the counsel and the client, including required third parties, are protected by the right of the attorney-client privilege. Work product is not a “privilege” and is thus handled somewhat differently from the treatment of privileged knowledge.


The fundamentals

Two types of work product do exist: brain work and everything else.

Brain work can’t be discovered.

In any case, writing that represents the impressions, assumptions, beliefs or legal analysis or hypotheses of a lawyer is not discoverable. All other work products are subject to conditional immunity.

The work product of a lawyer is not observable unless the court decides that the refusal of discovery is unfairly prejudicial to the party seeking discovery in the preparation of the argument or protection of that party or results in injustice.


What is the work product anyway?

Work product is not specified by law and is therefore decided on a case-by-case basis. In a series of cases culminating in Coito v. Superior Court, the courts have decided that the information collected by lawyers or their agents is a work product. If the notes or impressions of a lawyer are “inextricably intertwined” with that statement, the statement shall be considered as completely covered.

Coito case distinguishes between disclosures that a attorney has a testimony against the conditions for withholding it. Opposing counsel doesn’t just get a free pass on the work of the first solicitor. There must be proof of such requirements as unavailability of a witness or some other prejudgment in order to be questioned. In addition, if the witness list itself discloses the impressions of the lawyer, then the lawyer has a fair reason for asserting the work product.


Privilege trumps the status of discovery

Work product confidentiality is waived if in house attorney shows an employee an otherwise covered report in preparation for a deposition. However, Sullivan v. Superior Court, exempted a statement made by a client to a lawyer for revocation under the right of a attorney-client privilege. The difference is that the right of the attorney-client trumps the position of the discovery.

The transmission to a lawyer of an unprotected document does not turn it into a secure document. Coito insists that a declaration individually prepared by a witness is not a protected text. Bank of America v. Supreme Court.

That the transmittal is a luxury. It also tells us that the study of the transmittal and the enclosure must be conducted separately.

In comparison to privileged records, courts can require the creation of a work product in camera to decide if an object is protected; and, where applicable, whether the claim of an absolute or conditional work product should be upheld. Therefore, both the right and the labor product should be asserted separately, and the courts should first decide on the matter of privilege.


How far is the defense going?

There is no criminal misconduct exception to the protection of work product unless an attorney is investigated by a public prosecutor for intentionally engaging in a crime or fraud. However, the lawyer also has the right to a hearing on the assertions of the work product.

Protection of the work-product shall not be waived by the delivery of the product to the customer. Nor does defense stop at the close of the representation. Fellows v. Supreme Court overruled Coito on other grounds. Nor will the plaintiff receive a completely secured work product on the basis of the objections of the solicitor.

The trustee has the sole fiduciary responsibility to the beneficiary, but the trustee’s counsel has responsibilities only to the trustee’s client. Thus, the work-product judgment of the counsel for the trustee is entitled to absolute work-product privilege, irrespective of the conflicting interests of the beneficiary of every other conflict.

However, protection of work-products is not limited to civil discovery. (People v. Supreme Court (2001) 25 Cal.4th 703, 719.) Therefore, a lawyer may exercise defense during a criminal investigation and prosecution.



The security given to a lawyer’s work product is legally not a “privilege.” However, the protection is far wider than the privilege accorded to an attorney-client relationship. Work product also overlaps with protected correspondence, sensitive information and information subject to the protection of the client to privacy. It is therefore necessary, where applicable, to claim all of them, even if the applicable law may be somewhat different.