Considerations for producing attorney work product in a client’s file

There may come a time when an attorney receives a request for a copy of a client’s file. An attorney may, for example, receive a subpoena from a third party requesting documents related to a prior representation. A client may also request a copy of the attorney’s file upon the termination of the representation. These requests may be routine, but can have significant ethical implications for the attorney.

The typical first step for an attorney in responding to these types of inquiries is to assess what specifically is being requested. Many attorneys may know what materials and documents will generally be considered part of a client’s file. Indeed, the file typically includes public materials, such as court pleadings, and nonpublic materials, like communications exchanged between the attorney and the client. However, a client or subpoena may also seek the attorney’s internal communications and draft documents that are generally considered privileged, confidential, or protected by the work product doctrine.

If the attorney determines that the request includes the attorney’s work product, properly responding to the request could become more complicated. In evaluating requests for the production of the attorney’s work product, it is helpful to understand the basic parameters of the doctrine, which has evolved at both the state and federal levels since it was first recognized by the U.S. Supreme Court in Hickman v. Taylor over 75 years ago.

Below are some steps attorneys can consider when evaluating requests for the attorney’s work product.

Types of work product and who created it

Generally, attorney work product may be divided into two distinct categories. The first category is “general work product” (or “fact work product” or “ordinary work product”), which usually consists of documents and tangible items prepared by the party or the party’s representative in anticipation of litigation. The second, narrower category is “opinion work product,” which usually consists of only those trial or litigation preparation materials that include the conclusions, opinions, legal theories, or other mental impressions of the party’s attorney or other representative.

Evaluating whether certain documents constitute work product not only involves a review of the materials themselves, but it also involves consideration of who created them. Of course, the client and attorney are the common parties who generate work product. However, depending on the circumstances and the nature and scope of the representation, many others may have also had a role in creating work product material. Some jurisdictions recognize that a party’s insurer, agents, or attorney’s employees – like assistants and paralegals – may also generate work product.

The inquiry may be more complicated as it pertains to non-client requests for expert and consultant materials. For example, under the Federal Rules, the issue generally turns on whether the expert will testify at trial. If so, the work-product doctrine may not protect the opinions held or the facts known by those experts because the purpose of retaining a testifying expert is to use his or her opinions, and the facts in support, at trial. On the other hand, when the client makes the request for expert materials in the file, Rule 1.16(e) of the California Rules of Professional Conduct provides that all expert reports must be produced.

Third-party requests

When a third-party requests material to which an attorney claims work product, the type of work product involved is important because the categories are afforded different levels of protection.

Under California law, opinion work product is entitled to an absolute privilege and is generally not discoverable. See Cal. C.C.P. § 2018.030(a). On the other hand, only a qualified privilege applies to general work product materials. As a result, a court may order the production of general work product if certain requirements are satisfied, such as unfair prejudice to the requesting party if the materials are not disclosed. See Cal. Cal. C.C.P. § 2018.030(b).

When confronted with a request for work product, the attorney or firm may also consider whether the situation calls for affirmative defensive action, such as moving to quash the subpoena, which may require significant time and resources to pursue and resolve. Many attorneys in this situation will also consider notifying the client whose materials are being sought.

Requests from a client

A majority of jurisdictions, including California, have found that a document created by the attorney pursuant to an attorney-client relationship generally belongs to the client. The California Rules of Professional Conduct provide detailed guidance on the type of documents and materials in the file that a client is entitled to receive. Rule 1.16(e), which applies in the event of termination of a representation, provides that “subject to any applicable protective order, non-disclosure agreement, statute or regulation, the lawyer promptly shall release to the client, at the request of the client, all client materials and property,” which includes “correspondence, pleadings, deposition transcripts, experts’ reports and other writings, exhibits, and physical evidence, whether in tangible, electronic or other form, and other items reasonably necessary to the client’s representation, whether the client has paid for them or not.”

With respect to the attorney’s work product, statute provides that “[i]n an action between an attorney and a client or a former client of the attorney, no work product privilege under this chapter exists if the work product is relevant to an issue of breach by the attorney of a duty to the client arising out of the attorney-client relationship.” Cal. C.C.P. § 2018.080. Clients may, therefore, argue that they are entitled to any document that the attorney created during the representation, including work product, if the client has, for example, sued the attorney for malpractice and the requested materials are relevant to the issue of breach of the duty of care.

Inadvertent waiver

Once the documents are produced, clawing back materials protected by the work-product doctrine may be difficult. In deciding whether to do so, courts will typically examine whether a waiver was intentional or inadvertent, or whether the disclosure was made to an adversary. To avoid these issues, some litigants may set forth a procedure for handling inadvertent disclosures of protected materials at the outset of the litigation.

By being mindful of these issues upon receiving a request for “the file” – whether from a client or a stranger to the relationship – lawyers can help ensure that their response complies with their ethical obligations.