Because the attorney-client privilege provides only a fragile protection, disclosing privileged communications to third parties almost always waives the privilege. The work product doctrine offers a more robust protection, so disclosing work product to third parties does not automatically waive that separate protection.
In Grochocinski v. Mayer Brown Rowe & Maw LLP, Case No. 06 C 5486, 2008 U.S. Dist. LEXIS 45011 (N.D. Ill. June 9, 2008), a Chapter 7 trustee filed a malpractice case against the Mayer Brown law firm. Mayer Brown claimed that the trustee waived both the attorney-client privilege and the work product protection covering some documents by disclosing the protected documents to a creditor. The court found the trustee and the creditor shared only a “joint financial interest rather than a joint legal interest,” so that the common interest doctrine did not protect the trustee from having waived the attorney-client privilege when disclosing privileged communications to the creditor. Id. at *29. In contrast, the court held that the creditor was not the trustee’s adversary, so that the trustee’s disclosure of work product to the creditor did not waive that protection. The court even held that documents the creditor prepared could themselves deserve work product protection, because they were “prepared for the purpose of assisting [the trustee] with this litigation,” and “contain[ed] the legal theories and mental impressions” of the creditor, the trustee or the trustee’s lawyer. Id. at *36.
It might seem counter-intuitive that a bankrupt estate’s creditor would be considered (1) a stranger for attorney-client privilege waiver purposes, but (2) an ally for purposes of analyzing work product waiver and even work product creation. Lawyers should always remember the dramatically different waiver rules that apply in the privilege and the work product contexts.