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1 CLE hour
The attorney-client privilege and related work product doctrine overlap with lawyer ethics rules but largely diverge, though they are often confused with each other. Privilege protections are essential to every form of practice. Yet the types and scope of communications it protects are often misunderstood and confounded with the duty of confidentiality under ethics rules. This program will cover how the privilege and ethics rules diverge and review significant recent developments in privilege protections, the work product doctrine, and ethics. The program will cover identifying your client, distinguishing between legal advice and non-legal advice and communications, how the privilege may or may not apply to client and lawyer agents and consultants, and the often overlooked “motivation” element for creating the privilege. This program will provide you with a practical guide to recent developments in privilege protection, the work product doctrine, and related ethics rules.
• Ethics and the attorney-client privilege – how they overlap and diverge
• Review of significant developments in creating and asserting the attorney-client privilege and the work product doctrine
• Identifying the "client" in a representation, including when you represent an entity – entity v. officers v. employees
• Recent developments regarding the "primary purpose" and “one significant purpose” tests when distinguishing between legal and business advice
• Understanding the narrowness of privilege protection for client and lawyer agents/consultants
• The "motivation" work product element – and distinguishing it from the “litigation” and “anticipation” elements
• Trends in courts’ increasing focus on the four corners of withheld documents – and related challenges for lawyers
Thomas E. Spahn is a partner in the McLean, Virginia office of McGuireWoods, LLP, where he has a broad complex commercial, business and securities litigation practice. He also has a substantial practice advising businesses on properly creating and preserving the attorney-client privilege and work product protections. For more than 20 years he has lectured extensively on legal ethics and professionalism and has written “The Attorney-Client Privilege and the Work Product Doctrine: A Practitioner’s Guide,” a 750 page treatise published by the Virginia Law Foundation. Mr. Spahn has served as member of the ABA Standing Committee on Ethics and Professional Responsibility and as a member of the Virginia State Bar's Legal Ethics Committee. He received his B.A., magna cum laude, from Yale University and his J.D. from Yale Law School.