Work Product Created through Inappropriate Conduct May Be Stripped of its Protection

September 12, 2001

In a civil analogy to criminal law principles, some courts find that the work product protection will not protect materials prepared through unethical lawyer conduct.

In the recent case of Anderson v. Hale, No. 00 C 2021, 2001 U.S. Dist. LEXIS 4994, at *29 (N.D. Ill. Apr. 20, 2001), for instance, the court found that defendants’ counsel’s surreptitious tape recordings of telephone conversations with witnesses fell within the definition of the work product protection, but would nevertheless have to be produced because they were the fruit of the lawyer’s unethical conduct. The court explained that “because we agree that Defendants’ counsel engaged in unethical conduct by surreptitiously taping conversations with witnesses, any work-product protection that otherwise may have existed is vitiated and Defendants’ tapes must be disclosed to Plaintiff.”

Lawyers tempted to engage in unethical conduct when preparing for trial should remember that the materials they create might not deserve work product protection.