[Repurposed from the State Bar of Texas, 2013]
A client’s relationship with a lawyer is unique. Lawyers and clients must be able to communicate freely for clients to receive the help they need, and the attorney–client privilege and the work-product doctrine make this possible.
The attorney–client privilege protects confidential information learned by an attorney during client representation. The work-product doctrine protects the thoughts and materials prepared, and communications made, when lawyers and clients think litigation is possible.
The privilege belongs to the client.
The work-product doctrine protects the ideas and strategic decisions made concerning a case by guarding information revealing the thought process of an attorney, a client, or their agent. This can include notes, memoranda, letters, e-mails—not just communications. Protecting work product helps the litigation process by safeguarding an attorney’s work in preparing for trial and requiring an opposing party to prepare its own case.
The work-product doctrine is also broader. It protects more than just attorney–client communications, extending to notes and other materials prepared for litigation. Unlike the attorney–client privilege, work product can be disclosed to an ally or person with common interest without waiving the protection (though consult with a lawyer before doing so).
The attorney–client privilege and the work-product doctrine are important tools necessary for attorneys to effectively represent their clients.
But both attorneys and clients should be mindful of how these protections apply, and whether their communications are confidential and protected. Above all, clients should think clearly before sending a communication intended to be protected and have a clear understanding of who the lawyer they are speaking with represents before divulging confidential information.