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Privileged Communications and Work Product

shredderAs a precursor to becoming a lawyer, every hopeful bar applicant must be familiar with certain core foundations of law.  One of the most important, which governs almost every aspect of trials, are the rules of evidence.  These rules shape the way in which trials are to be conducted, how evidence may be admitted, how witnesses may be qualified to speak, and which statements may or may not be deemed “hearsay” for the purpose of testimony.  The federal rules of evidence range from rule 100 to rule 1000.  Along the way there are over twenty exceptions to issues such as hearsay.  Additionally, Massachusetts has a counter part to the federal rules called the Massachusetts Guide to Evidence, that details additional and somewhat different rules that need to be followed in the courts.

One of the more interesting concepts that is articulated within the rules is the notion of privilege.  Generally, a party may be able to prevent the introduction of certain testimony or evidence under this principle of law.  The party seeking to assert that the testimony or evidence is “privileged” must make a showing that it falls into a category of speech (or evidence) that has previously been deemed as a confidential and private.  For instance, under section 504 of the Massachusetts Guide to Evidence, “a spouse shall not be compelled to testify in the trial of an indictment, complaint, or other criminal proceeding brought against the other spouse.”  Marriage has been an area of society that the legal system has deemed to be sacred, and therefore, impervious to the judicial system’s forced compulsion of speech- instead granting a privilege (or exception) to the general idea that one must testify when subpoenaed or called to the stand.

There are, however, other areas in which privilege may attach outside of a marriage context.  For instance, confidential communications between a lawyer and his or her client are deemed to be privileged.  Generally, neither the lawyer nor the client may be compelled to speak as to the communications that have occurred between the parties.  Under Rule 1.6 of the Massachusetts Rules of Professional Conduct, which governs a lawyer’s behavior, “A lawyer shall not reveal confidential information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation…” This notion also extends to the work done by the lawyer on the behalf of the client. This is known as the work product doctrine.  The work product doctrine is, “intended to enhance the vitality of an adversary system of litigation by insulating counsel’s work from intrusions, interferences, or borrowings by other parties as he prepares for the contest.” Ward v. Peabody, Supreme Judicial Court of Massachusetts, 380 Mass. 805.

The work product doctrine may prevent certain documents or information from a lawyer’s handiwork to be discovered by the other side in a case.  This includes not just information prepared by an attorney, but information prepared on behalf of an attorney- such as an insurance company, private investigator, consultant, etc., that was created in anticipation of litigation or for trial.  For instance, a Defense lawyer may want to get a copy of the Plaintiff’s lawyer’s internal memorandum regarding the risks associated with their case.  However, this is considered to be the work product of the attorney.  As such, it is precluded from discovery in the interests of fairness and zealous representation by attorneys in our society.

To schedule a free consultation with lawyer Daniel Cappetta, call our office today at (508) 969-9505 or fill out or contact form available on the right side of this page.

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