Attorney-Client Privilege and Work Product Doctrine Issues: Basic Rules and New Trends

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This program will explore perhaps the most important legal doctrine all lawyers should understand: the attorney-client privilege. It will also address the separate but related issue of work product doctrine protection.

The following ten topics will be discussed: (1) how to determine which attorney-client privilege and work product law will apply; (2) clients' nearly universal misunderstanding of the privilege's applicability and the key legal advice component; (3) privilege protection in a corporate setting, including the danger of widespread intracorporate communications, beyond those with a "need to know"; (4) sources of proof courts examine in analyzing privilege protection and practical steps for maximizing the protection; (5) basic work product principles, including the "litigation," "anticipation," and "motivation" elements; (6) identifying who is outside privilege protection, including clients' and lawyers' agents and consultants; (7) privilege waiver, including implied, "at issue" and subject matter waivers; (8) joint defense and common interest agreements and their unpredictability; (9) work product waiver, which dramatically differs from privilege waiver; (10) privilege and work product issues arising before, during and after internal corporate investigations.

Educational Objectives:
• Understand the critical differences between the attorney-client privilege and the work product doctrine.
• Learn about the surprising narrowness and fragility of the attorney-client privilege.
• Discover the nuances of privilege protection in a corporate setting.
• Find out about the great risks involved in relying on common interest/joint defense agreements.

Who would benefit most from attending this program?
Every lawyer must be familiar with the attorney-client privilege. Although litigators primarily deal with the work product doctrine, every lawyer should also know the advantages and disadvantages of that separate, but related, protection.



Tom Spahn practices as a commercial litigator with McGuireWoods in Tysons Corner, Virginia. Mr. Spahn was selected as the 2013 metro-Washington, D.C. "Lawyer of the Year" for "Bet the Company Litigation" by The Best Lawyers in America. He has served on the ABA Standing Committee on Ethics and Professional Responsibility and is a Member of the American Law Institute and a Fellow of the American Bar Foundation.

Mr. Spahn has written extensively on the attorney-client privilege, ethics and other topics, and he has spoken at more than 1,200 CLE programs throughout the U.S. and in several foreign countries. He graduated magna cum laude from Yale University and earned a J.D. from Yale Law School. Mr. Spahn in licensed to practice in Virginia.