Attorney-Client Privilege & Work Product Doctrine: Basic Rules, Emerging Challenges, Special Issues, and Practice Pointers


Re-Broadcast on February 6, 2017

In American legal jurisprudence, the attorney-client privilege is frequently referred to as “sacrosanct,” with origins pre-dating the Constitution. Although it is commonly understood to be an “absolute privilege,” the privilege does not actually apply to all aspects of the attorney client relationship. Additionally, there are exceptions and waivers that can both intentionally and inadvertently compromise communications that would otherwise be typically protected. Similarly, the protections of the Attorney Work Product Doctrine now face significant practical challenges, especially in an era of increasing e-discovery and reliance on technology.

This webinar will begin with a “nuts-and-bolts” review of the Attorney-Client Privilege & Work Product Doctrine, and then engage a more detailed analysis of: special practice area issues, the impact of technology, conflicts of law and selected differences between state privilege law and federal privilege law.

This course is co-sponsored by the Federal Bar Association.

Key topics to be discussed:

  • Understanding the Basics and Not-So-Basics of Attorney-Client Privilege and Work Product Doctrine
  • Special Issues and Emerging Challenges
  • Practice Pointers
  • Attorney-Client Privilege and Business Entities: Communications between in-house counsel, officers, directors, and employees
  • International Law: Attorney-Client Privilege and Work Product Doctrine Issues in global litigation and legal matters
  • Emerging Technology and its impact on Attorney-Client Privilege, Confidentiality and Work Product Doctrine

Date / Time: February 6, 2017

  • 2:00 pm – 5:15 pm Eastern
  • 1:00 pm – 4:15 pm Central
  • 12:00 pm – 3:15 pm Mountain
  • 11:00 am – 2:15 pm Pacific

Choose a format:

  • Live Video Broadcast/Re-Broadcast: Watch Program “live” in real-time, must sign-in and watch program on date and time set above. May ask questions during presentation via chat box. Qualifies for “live” CLE credit.
  • On-Demand Video: Access CLE 24/7 via on-demand library and watch program anytime. Qualifies for self-study CLE credit. On-demand versions are made available 7 business days after the original recording date.



kathleen-chavezKathleen C. Chavez, Esq. is a founding partner of Foote, Mielke, Chavez & O’Neil, LLC. Ms. Chavez earned her Juris Doctor degree in 1998 from Northwestern University School of Law. She was admitted to the Illinois bar in 1998 and is admitted in the United States District Court for the Northern District of Illinois, United States District Court for the Southern District of Illinois, the Federal Trial Bar and the Federal Court of Claims. Ms. Chavez has also been admitted pro hac vice in numerous cases nationwide. She has extensive litigation experience in multi-district litigation (“MDL”), federal and state civil litigation, class action litigation, arbitrations (including class and multi-plaintiff) and litigation before administrative tribunals, such as the Equal Employment Opportunity Commission.

Ms. Chavez is an accomplished trial attorney who has extensive experience in all aspects of complex civil litigation including such tasks as: case investigation, pleadings, discovery, e-discovery, document review, motion practice, trial (including class action), appeals and mediation/settlements. Her practice is focused on complex civil cases (including class, multi-plaintiff, mass tort and individual) involving competition, consumer fraud, unfair trade practices, environmental, technology, trademark, qui tam, civil rights, breach of contract, Racketeering Influenced and Corrupt Organizations Act (“RICO”), employment, wage and hour, insurance and other state and federal statutory and common law claims. Ms. Chavez is involved in numerous professional organizations and is a speaker at conferences and seminars on topics such as alternative dispute resolution, mediation, class arbitration and employment law litigation.

Ms. Chavez frequently serves in leadership roles, on committees and as a team member in some of the most challenging and transformative complex civil litigation nationwide. Ms. Chavez has utilized her diverse experience and unique background to consistently provide invaluable contributions in cases that require the cooperation and collaboration of multiple plaintiffs’ counsel. Whether as a leader or a team member, Ms. Chavez consistently offers an unparalleled level of advocacy, energy, enthusiasm and commitment to her clients. Recoveries from the cases in which she has been involved (including verdicts, judgments and settlements) exceed $7 billion dollars and involve a diverse range of complex civil claims.

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Part 1: Understanding the Basics and Not-So-Basics of Attorney-Client Privilege and Work Product Doctrine

I. Attorney–Client Privilege
a) A brief history of the origin and purpose of the attorney-client privilege
b) Scope and general elements necessary to establish attorney-client of privilege
c) Communications subject to the attorney-client privilege
d) Common aspects of the attorney-client relationship that are not privileged
e) Exceptions and waivers
f) Selected differences between federal privilege law and various state privilege law

I. Attorney Work Product Doctrine
a) Overview of Work Product Doctrine: Definition and Elements
        i. Definition, Elements and Scope of Attorney Work Product Doctrine
        ii. Documents and data typically protected by Attorney Work Product Doctrine
        iii. Examples of documents and data determined not protected by the Work Product Doctrine
        iv. Exceptions and waivers
                • The basics of waiver and exceptions,
                • The split among the different States
                • Federal Courts, with respect to “selective waiver” Theory and “Partial Waiver” doctrine
                • The Lack of Good Faith Exception
                • The Self-Defense Exception
                • “Crime-fraud”
        v. Differences between federal attorney work product doctrine and state attorney work product doctrine laws
        vi. Differences in how courts use a narrow or broad view of the protections of work product
                • “Made in anticipation of litigation”
                • Dual Purpose documents
                • “Opinion” vs “fact” work product

Part 2: Special Issues and Emerging Challenges

I. Attorney-Client Privilege and Business Entities: Communications between in-house counsel, officers, directors, and employees
a) Are communications between corporate counsel and corporate employees protected by the attorney/client privilege?
b) Does an employee have to make the communication to counsel, acting as counsel to provide legal advice to the corporation?
c) Must the substance of the communication involve matters that fall within the scope of the corporate employee’s official duties?
d) Must the employees themselves be aware that their statements are for the purpose of obtaining legal advice for the corporation?
e) Do the communications have to have been confidential when made? Must the company keep the communications confidential?
f) Who does the attorney-client privilege attach to: the corporation or the individual employees who communicate with counsel?
g) What corporate employees have the authority to waive the privilege?

II. International Law: Attorney-Client Privilege and Work Product Doctrine Issues in global litigation and legal matters

III. Emerging Technology and its impact on Attorney-Client Privilege, Confidentiality and Work Product Doctrine
a) Technology aided disclosure of information and threats to attorney-client privilege
b) E-Discovery and complications with production of voluminous data
        i. “Claw-Back” and “Quick-Peak” Agreements
        ii. Party agreements
        iii. Court orders
c) Use of enabling technologies in conducting privilege review
d) Issues involving E-Mail, instant messaging, text messaging, cloud computing and storage, mobile devices, third party vendors
e) Issues involving social media, blogs, online reviews and attorney communications on the Internet

IV. Understanding the nuances between Attorney-Client Privilege, Work Product Doctrine and Confidentiality