Who Holds the Work Product Privilege?

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When a lawyer leaves a law firm, who holds the work product privilege?  Is the law firm the holder?  Or, does the lawyer hold the work product privilege?  Please see my article in the latest ABTL Report for an in-depth discussion of the recent case Tucker Ellis LLP v. Superior Court, 12 Cal.App.5th 1233 where the court discusses the issue, a matter of first impression in California.  While lawyers may believe that we know the answer to this question, the statute, California Code of Civil Procedure section 2018.030, is not specific as to whether the law firm or the lawyer is the holder of the work product privilege after the lawyer leave the law firm.  Accordingly, the court’s determination is based upon policy considerations.  Like many recent cases, the matter concerned a lawyer’s email communications.  The law firm’s policy on the point was also a significant consideration for the court in making its determination, and therefore something that a law firm should consider in addressing this issue at the practical level.  Because lawyers change firms with some frequency, and may or may not take cases with them, the work product of a departing lawyer is in play.  Reading the article and the opinion, will also make you think about what you are putting in email, given that it lives on after you have left the firm, and may be disclosed with potentially unanticipated harmful consequences, as it was in the Tucker case.  While the opinion provides guidance, certain scenarios are not addressed and merit careful consideration if you are addressing this issue in your firm, or in your practice.

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