Federal Court Articulates Basic Differences Between The Attorney-Client Privilege And The Work Product Doctrine: Part I

Many lawyers understand that the attorney-client privilege differs from the work product doctrine, but do not realize how many basic differences can affect the protections' practical applications.

In Texas v. United States, Civ. A. No. 11-cv-1303 (RMC), 2012 U.S. Dist. LEXIS 5 (D.D.C. Jan. 2, 2012), the court described many of the basic elements of the attorney-client privilege and the work product doctrine. The court's discussion highlighted a number of important distinctions.

First, the privilege only protects communications "'between attorneys and their clients,'" and protects a lawyer's communications to a client "'only insofar as the attorney's communications disclose[d] the confidential communications from the client.'" Id. at *7-8 (citations omitted). In contrast, the work product doctrine can protect "'documents and tangible things'" prepared in anticipation of litigation "'by or for another party or its representative'" – thus not requiring a lawyer's