From the Winter 2007 issue of The News Media & The Law, page 30.
Many state public records laws make exceptions for materials made confidential in the context of an attorney-client relationship. This relationship begets three separate, but overlapping, sets of protected communications.
Attorney-client privilege is a rule of evidence that prevents an attorney from disclosing in a legal proceeding the content of discussions with his client.
Attorney-client confidentiality is a broader protection whereby the attorney, in accordance with professional codes of conduct, agrees not to disclose to anyone the content of discussions with his or her client without the client’s permission.
The two types of protection arise in different situations. For example, the attorney-client privilege is implicated in formal legal proceedings and prevents activities such as a lawyer taking the stand and testifying against his client.
Attorney-client confidentiality is broader, and would prevent an attorney from, say, holding a press conference to discuss a client’s communications or even confirming to a third party that a particular client has retained him or her, without the client’s consent.
Attorney work product is a third protection spawned from the attorney-client relationship. It blocks disclosure of an attorney’s mental impressions or opinions about a specific case, even those not specifically communicated to the client.
For example, a lawyer may take notes from a witness interview or prepare a memorandum of law that he refers to in preparation for a client’s case. Even though he may not communicate these things to his client, they are protected from compelled disclosure to an opposing party during litigation based on the attorney work product doctrine.
When government bodies decline a records request, reporters should be aware of the distinct legal differences between the three types of protection arising from an attorney-client relationship. The attorney-client privilege is widely asserted in situations when the specific requirements for its existence are not met, and the mere fact that a client has communicated with an attorney does not mean a protected attorney-client relationship exists. Understanding the differences between the three doctrines will help a reporter evaluate whether a privilege is being properly asserted. — NW