Work Product Protection Can Be Overcome in Some Circumstances, but the Privilege Is Absolute — Right?

October 18, 2023

Most lawyers know that fact work product protection can be overcome in certain circumstances, opinion work product is “absolutely or nearly absolutely” protected, and that the attorney-client privilege is absolute. But as with other supposedly universal concepts, there are exceptions.

Attorney-client privilege deserves absolute protection under federal common law and all but one state’s law. They recognize the societal benefit of such assured protection — allowing clients to feel totally safe in disclosing facts to their lawyers, knowing that the lawyers will keep them secret (our confidentiality duty) and that no third party will ever discover those conversations (the attorney-client privilege). But as in other key societal issues (such as motorists’ ability to pump their own gas), New Jersey stands alone. In Grand Maujer Development, LLC v. Hollister Construction Services, LLC, the court noted under New Jersey law the “privilege is ‘neither absolute or sacrosanct.'” No. A-0012-22, 2023 N.J. Super. Unpub. LEXIS 1208, at *8 (N.J. Super. Ct. App. Div. July 18, 2023) (citation omitted). The court then articulated the standard required “[t]o pierce the attorney-client privilege.” Id. at *9. That standard is frighteningly easy — there must be a “‘legitimate need . . . to reach the evidence sought to be shielded'”; “the evidence must be relevant and material”; and “there must be a finding, by a fair preponderance of the evidence, that the information sought cannot be obtained from a less intrusive source.” Id. (alteration in original) (citation omitted).

Much like motorists discovering to their surprise that they cannot pump their own gas on the New Jersey Turnpike, lawyers from other states should realize that in New Jersey the attorney-client privilege does not deserve absolute protection.