Abstract: This article addresses scenarios in which a lawyer and client might disagree about the potential disclosure of attorney work product. The recent Restatement of the Law Governing Lawyers takes the emphatic position that work product is the client's to waive, or not, entirely at the client's discretion. The Restatement barely acknowledges the position several jurisdictions have taken, at the other extreme, that the work product privilege is designed to protect the ability of lawyers to operate freely and therefore belongs to the lawyer who produced it. The article explores the issue of who has, or who should have, the power to control or waive the work product privilege. Case law has thoroughly identified and vetted the theoretical justifications for the privilege itself. But, as in many other areas of the law, scant attention has been paid to the theoretical justifications for waiver. The failure of scholars, courts, and rulemakers to distinguish issues regarding control of the privilege from the substantive underpinnings for the privilege has led to rules that are both simplistic and inadequate. The article sets forth five possible theoretical approaches to delineating an appropriate control and waiver principle, some reconcilable only with the Restatement rule, others with the contrary position. It then highlights the ways in which the existing rules mesh with, and diverge from, the alternative theories and identifies a series of situations in which the choice of rule becomes significant. The article illustrates why blind application of either extreme approach fails to account for important considerations underlying the work-product principle. The article therefore proposes an alternative approach that more directly serves the reasons why work product privilege developed.
Publication Year: 2005
Publication Date: 2005-10-19
Language: en
Type: article
Access and Citation
Cited By Count: 1
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