The attorney‑client privilege provides a much more fragile protection than the work product doctrine. The cases that highlight this difference often involve documents which a court finds to deserve both privilege and work product protection.
In Chase v. City of Portsmouth, Civ. No. 2:05cv446, 2006 U.S. Dist. LEXIS 29294 (E.D. Va. Apr. 20, 2006), the court held that a city attorney’s letter to the City Council and others deserved privilege protection. However, the court found that the City had lost the privilege protection by not treating the letter carefully enough ‑‑ pointing to the transmission of the letter in unsealed plain envelopes and through use of a fax machine in a City Council member’s home. The court even pointed to the lack of a written policy on the treatment of privileged documents, and to the lack of any training programs on privilege. The court also found that the letter deserved work product protection, which can survive “[l]imited disclosure to third parties” and therefore continued to protect the letter. Id. at *20. The City thus lost the privilege battle but won the protection war.
Chase serves as a good reminder that (1) lawyers and their clients should treat privileged communications like the client’s crown jewels, and (2) lawyers should always look for opportunities to claim both the privilege and the work product protections.