The Client File: What’s Work Product and What Belongs to the Client?

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February 3, 2015
Joseph Trevino
SmithAmundsen Milwaukee Alert

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The last thing any practicing attorney wants to think about is a malpractice claim against them. For better or for worse, malpractice claims are all-too-common occurrence. Once a claim is made, the inevitable discovery request from plaintiff to defendant attorney is some derivative of:

Request No. 1: Please produce your entire file from the case Smith v. Jones, 12CVxxxx. This request includes, but is not limited to all drafts and final products of pleadings, correspondence (electronic or physical), memoranda, and attorney notes.

Such requests can be unsettling. Two common questions arise when responding: 1) who actually owns the file; and 2) is there any aspect of a client “file” that the attorney can claim belongs exclusively to the attorney as work product? In general, the client owns the file, and has the ability to claim or waive attorney-client privilege over the file. However, Wisconsin is an “end-product” state, which means that the general rule is that only the “end product” of an attorney’s work becomes the property of the client. As such, there are certain portions of a file that can be considered exclusively the attorney’s work product.

The law remains relatively unsettled in Wisconsin on these issues. Appeals concerned with pre-trial discovery are infrequent, and more infrequent still are such appeals arising out of a legal malpractice context. However, the State Bar Professional Ethics Committee’s Ethics Opinions provide some guidance. An examination of Ethics Opinions E-00-03, E-82-7, and 4/78 B establishes that the following categories of documents are likely work product, and may not be discoverable in a legal malpractice case:

  1. “[d]ocuments used by the attorney to prepare initial documents for the client, in which a third party, for example, another client, has a right to nondisclosure.”
  2. Internal memoranda
  3. Conflict checks
  4. Personnel assignments
  5. Lawyer notes

The Ethics Opinions acknowledge that the line between materials belonging to the client and the attorney’s own work product remains ill-defined. Attorneys should remain cognizant of these rules in the course of maintaining their files.