Earlier this month, the American Bar Association filed an amicus brief with the United States Supreme Court to protect work product doctrine.
The ABA is urging SCOTUS justices to review a decision made by a federal appeals court that takes away an attorney’s right to maintain confidentiality of attorney work product in a case between Boehringer Ingelheim Pharmaceuticals Inc. and the Federal Trade Commission.
The decision by the U.S. Court of Appeals for the D.C. Circuit found the Federal Trade Commission was entitled to documents if they were relevant to its investigation, had a unique value, and could not reasonably be obtained elsewhere because of special circumstances.
However, the ABA argued that this ruling contradicts five other cases in federal circuits and the ABA Model Rules of Professional Conduct. Therefore, they felt the need to step in after the decision blurred the line between attorney documents that are opinion work product and fact work product.
According to the brief, the ABA formulated a task force back in 2005 to educate legal professionals on the role of attorney-client privilege and work product doctrine.
Along with the creation of said task force came an ABA policy which states that the preservation of both principles (attorney-client privilege and work product doctrine) is essential to maintaining a confidential relationship between a client and a lawyer, the elimination of which discourages clients to openly discuss legal matters with counsel.
Furthermore, the ABA went on to reference an observation made thirty five years ago by the United States Supreme Court in Upjohn v. United States:
a(n) uncertain privilege, or one of which purports to be certain but results in widely varying applications by the courts is little better than no privilege at all.”
Do you think anything will come of this amicus brief? What is the fate attorney-client privilege?