Public Health Law Map - Beta 5 - Medical and Public Health Law Site

elationship. To be legally privileged, a communication must pass directly from one
party to the other, and it must pass intentionally. It may be written, spoken, signed, or
otherwise communicated. It extends only to the communication itself, it cannot be
used to hide information that was not previously privileged. The privilege only
prevents the court from forcing the attorney to testify. For example, if the client tells
the same information to a friend as to the attorney, the friend may be forced to testify
about the information. The privilege cannot be used to hide documents that were not
prepared by the attorney, and it does not extend to physical evidence.
This example from criminal law will help illustrate the nature of a communication.
One of the traditional privileges in criminal law is the protection of communications
between husband and wife. This privilege is intended to preserve domestic relations.
It prevents people from testifying about information they were told by their spouse.
If a husband is told by his wife that she has been filing fraudulent Medicare claims,
he may not testify if she is prosecuted for criminal Medicare fraud. However, if he
actually watches her filling out fraudulent forms on their home computer, he may be
compelled to testify as to his observations.
The only exception to the attorney–client privilege is the threat of future harm. The
attorney may alert the police if the attorney believes the client is going to commit a
crime that would endanger others. The state may also require attorneys to report
child abuse and other public health problems, but few states do.
3. Attorney Work Product Doctrine
Attorney work product is the work that an attorney performs, other than
communication with the client. Notes that the attorney prepares from a client
interview would be related to the client communication and would be protected by
the attorney–client privilege. An independent investigation that the attorney carries
out for the client would not be a communication, but would be work product. The
U.S. Supreme Court found that there would be privilege if the communications were
sought or given in “anticipation of litigation,” a term of art from a key case
establishing the bounds of privilege for attorneys conducting an investigation of
corporate behavior. [Upjohn Co. v. United States, 449 U.S. 383 (1981).] Anticipation
of litigation is a broad umbrella. The threat of litigation need only be potential, not
imminent. For example, a severe medication reaction would carry the potential of
litigation. An investigation of a medication error could satisfy the criterion of
anticipation of litigation. If the attorney directs the investigation, the information that
is communicated to the attorney would be privileged, if it is not otherwise available
to others.
The key distinction between attorney–client privilege and attorney work product
involves whether the document in question contains information obtained from the
client. The reason for making this distinction is that information protected by the
attorney–client privilege is (almost) never available to discovery. Attorney work
product is available, however, if the opposing party can show that justice would be
denied if the work product was unavailable. For example, if an attorney made
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