Summary: 2) Wpd, Pdc, Acp, And Other Basic Duties
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1 2) Overview of WPD, PDC, and ACP
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Work Product Doctrine (WPD) - SOURCE
Common law; now codified in FRCP 26(b)(3) -
ACP - WHO CONTROLS
C can assert or waive directly. L can assert or waive as an agent of the C. -
PDC - WHO CONTROLS
L has a duty to keep confidential information secret unless C consents to disclosure. -
WPD - WHO CONTROLS
Varies.- Some courts san the client and lawyer can assert or waive
- Some courts permit a lawyer to assert over client objection
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ACP - REMEDY FOR BREACH
Breach of privilege operates as a waiver; C would then have malpractice action against L if waiver was negligent. -
PDC - REMEDY FOR BREACH
L may be subject to professional discipline or action by C for breach of fiduciary duty. -
WPD - REMEDY FOR BREACH
Failure to assert WPD in opposition to discovery request operates as a waiver. Client may be able to sue L for malpractice if waiver was negligent. -
Identify ABA R- PDC
The basic duty is set out in 1.6(a), followed by exceptions to the duty in 1.6(b). -
ABA 1.6(a) [Professional Duty of Confidentiality] - In Brief
L shall not reveal information relating to the representation of a client [confidential information] UNLESS (1) informed consent, or (2) a 1.6(b) exception applies. -
How does the ACP provide greater protection that PDC?
The ACP can be asserted in opposition to a request for information (subpoena, interrogatory, deposition question).
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