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AHLA Long Term Care and the Law February 2012 - Phoenix, Arizona

Legal Ethics – Common Ethical Issues for

Health Care Lawyers

Gavin Gadberry, Esq.

Underwood, Wilson, Berry, Stein & Johnson, P.C. Amarillo, TX

Christopher Puri, Esq.

Bradley Arant Boult Cummings, LLP Nashville, TN

Table of Contents

I.  LOBBYING FOR LAWYERS: ADVOCACY IN NON-ADJUDICATIVE

PROCEEDINGS ... 2 

A.  State Lobby Ethics Rules ... 2 

B.  Trade Associations ... 4 

II.  TRANSACTIONS WITH PERSONS OTHER THAN CLIENT ... 5 

A.  Governmental Entities—When Are They Represented ... 6 

B.  Unrepresented Persons ... 7 

III.  MULTI-STATE PRACTICE CONCERNS ... 8 

A.  Model Rule 5(d) ... 10 

B.  Other changes made to Multi-Jurisdictional Practice ... 12 

IV.  THE ATTORNEY WORK PRODUCT PRIVILEGE ... 12 

A.  Background and Overview ... 13 

B.  Work Product Doctrine Differs From The Attorney-Client Privilege ... 15 

C.  The “Anticipation of Litigation” Test ... 15 

1.  The “Because Of” Test ... 16 

2.  The “Primary Purpose” Test ... 17 

D.  What About “Dual Purpose” Documents ... 19 

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This paper addresses and discusses the ethical rules and principles that health care lawyers may commonly come across in their practice.

I. LOBBYING FOR LAWYERS: ADVOCACY IN NON-ADJUDICATIVE PROCEEDINGS

Model Rule 3.9 provides that a lawyer representing clients before a legislative or administrative tribunal in a non-adjudicative proceeding must disclose that the appearance is in a representative capacity. A lawyer acting in this capacity must also comply with Model Rule 3.3: Candor Toward the Tribunal; Model Rule 2.4; Fairness to Opposing Party and Counsel; and Model Rule 3.5: Impartiality and Decorum of the Tribunal. Comment 1 to Model Rule 3.9 recognizes that legislatures and administrative agencies have a right to expect lawyers to deal with them as they deal with Courts.

A. State Lobby Ethics Rules

Some states have Ethical Rules applicable to lobbyists, which may also apply to lawyers. Texas Government Code § 305.028 provides that a lobbyist must provide a conflict of interest notice to each affected or potentially affected client where the lobbyist is attempting to influence the same legislation or administrative act.. In Texas, a lobby registrant must provide this notice if any of the following circumstances exist pursuant to Texas Ethic Commission Rules:

1) the registrant represents opposing parties in communicating directly with a member of the legislative or executive branch to influence the same legislation or administrative action;

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1) the registrant's representation of a person involves a substantially related matter in which that person's interest are materially and directly adverse to the interest of another client of the registrant;

2) the registrant's representation of a person involves a substantially related matter in which that person's interests are materially and directly adverse to the interest of employer or concern employing the registrant;

3) the registrant's representation of the person involves a substantially related matter in which that person's interest are materially and directly adverse to the interest of another client of a partner or other person associated with the registrant;

4) The registrant's representation of a person reasonably appears to be or potentially be adversely limited by the registrant's, the employer's or concern's, or the partner's or other associated person's responsibilities to another client or to a third person;

5) The registrant's representation of a person reasonably appears to be or potentially to be adversely limited by the registrant's, employer's or concern's, or partner's or other associated person's own interests.

Pursuant to the Texas Ethics Commission Rule, a lobby registrant may represent a person if the registrant reasonably believes the representation of each client will not be materially affected and the registrant files a conflict of interest with the Texas Ethics Commission. The Texas Ethics Commission Rules, however, do not relieve an attorney with regard to the attorney's conflict of interest obligations.

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Unfortunately, the Model Rule 1.7’s conflicts of interest restrictions are not as easily applied to lobby activities which may have evolving interests as the topic develops. The lobbyist/lawyer may not know what entities are lobbying on a particular issue or the respective positions. In legislative activities, parties may be uniformly aligned initially, but later adverse because of a single amendment proposed by one.

Conflicts of interest may be even more subtle. For example, a conflict could arise where a lawyer is advocating for an increase in Medicaid funding for one association which results in a reduction in funding for another provider group that includes the clients of the lawyer’s firms. The lawyer may be lobbying only affirmatively for the association, but the action is adverse to the financial interests of the other provider group.

No easily identifiable solution probably exists to address these types of problems. One potential concept is for the lawyer/lobbyist to limit lobbying to the firm clients’ respective industries. Whether this is practical may not always be true.

Finally, most states and applicable federal laws require lobbyists to disclose certain client information when registering. Most clients would probably consider the information required for registration purposes to be a client confidence protected by the attorney client relationship. A lawyer/lobbyist should consider including language within the engagement letter, at a minimum, disclosures to the client the type of information which may be required to be disclosed.

B. Trade Associations

Serving as counsel to association often results in a lawyer to also becoming involved in lobbying activities. Whether a lawyer must register as a lobbyist usually

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depends on the amount of time serving as the lawyer versus as the lobbyist or the amount of compensation pertaining to lobbying activities. See e.g., 1 Tex. Admin. Code § 34.43(b) (“incidental lobbing”).

Unique conflicts of interest situations may also arise as a result of a lawyer’s representation of an association. Competing interests of association members may cause ethical concerns from both a legal and lobby standpoint. The concerns are often even greater where the attorney represents the association as well as its members. In any event, the attorney should take steps to ensure that the association and member clients understand the separate representation of each and not blur the distinction when providing advice.

II. TRANSACTIONS WITH PERSONS OTHER THAN CLIENT

Chapter 4 of the Model Rules addresses attorneys' dealings with persons other than their clients. Model Rule 4.1 requires attorneys to be truthful in the statements to others. Model Rules 4.2 and 4.3 addresses attorneys' obligation with respect to communications with the persons represented by counsel and with unrepresented persons. Model Rule 4.4 addresses attorneys' obligation to respect the rights of third persons. Persons Represented by Counsel

Model 4.2 expressly prohibits a lawyer from causing or encouraging others to communicate with a person or entity represented by counsel absent consent of opposing counsel. The Comments to Model Rule 4.2 state that parties may voluntarily speak to each other without the lawyer's consent. However, it is unethical and improper for a lawyer to assist or induce his client to communicate with a represented party.

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An attorney may communicate with employees of an opposing corporation or governmental entity as long as a person does not have a managerial responsibility that relates to the subject matter of the representation and whose acts or omissions in connection with the subject of the representation may constitute an admission on the part of the organization.

A. Governmental Entities—When Are They Represented

Generally, Model Rule 4.2 protects represented governmental entities from unconsented contacts by opposing counsel. However, Formal Opinion 97-408 recognizes that individuals have the constitutional right to petition and the derivative public policy of insuring a citizen’s right to access governmental decision makers. See also Model Rule 4.2, Comment 5. A lawyer representing a private party in a controversy with the government may communicate about the matter with governmental officials who have authority to take or to recommend action in the matter, provided that the sole purpose of a lawyer's communication is to address a policy issue, including settling the controversy. Formal Opinion 97-408; but see Comment 1, Tex. Disciplinary R. Professional Conduct 4.02 (“Paragraph (a) of this Rule is directed at efforts to circumvent the lawyer-client relationship existing between other persons, organizations or entities of government and their respective counsel. It prohibits communications that in form are between a lawyer’s client and another person, organization or entity of government represented by counsel where, because of the lawyer’s involvement in devising and controlling their content, such communications in substance are between the lawyer and the represented person, organization or entity of government.”)

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The lawyer must give government counsel reasonable advance notice of his intent to communicate with such officials, to afford an opportunity for consultation between government counsel and the officials on the advisability of their entertaining communication. Id. Where the right to petition has no apparent applicability, either because of the position and authority of the official sought to be contacted or because of the purpose of the proposed communication, Rule 4.2 prohibits communication without prior consent of government counsel.

One commentator finds the restrictions contemplated by the Model Rules, as contemplate by the ABA Ethics Committee Formal Opinion, directly contrary to the First Amendment:

To this author, a former member of the ABA Standing Committee on Ethics, the conclusion reached in the opinion is very dubious. It ignores the supremacy of, and potential chilling effect on, important First Amendment rights. More importantly, the opinion’s conditions are not found in either the language of the rule or its commentary. Without this underpinning, the opinion lacks a foundation.

Fitzpatrick, Ethical Considerations in Dealing with Administrative Agencies,

http://www.tal-fitzlaw.com/Papers/Ethical_Considerations-Administrative_Agencies.pdf. The author recognizes, though, that providing notice likely installs a necessary good working relationship with government attorneys.

B. Unrepresented Persons

Model Rule 4.3 provides that, in dealing with a person not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested where the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's

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role. The lawyer must make reasonable efforts to correct an misunderstanding. The Comments are that generally, the role of the lawyer is not to give advice to the unrepresented person, other than advice to obtain counsel. Model Rule 4.3, Comment 2.

III. MULTI-STATE PRACTICE CONCERNS

The most dramatic changes in 2002 to the Model Rules occurred in Chapter 5 of the Model Rules. The multi-jurisdictional practice of law has become a major concern faced in the legal profession. Multi-jurisdictional practice of law involves issues of not only ethics, but also bar admission, regulation of lawyers and unauthorized practice of law.

The issue of multi-jurisdictional practice of law has as its genesis the case of Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court of Santa Clara Co., 949 P.2d 1 (Cal. 1998). In Birbrower, New York licensed lawyers were providing advice to a New York company. The New York lawyers advised employees located at the New York company's branch office in the Silicon Valley, California. The New York lawyers represented the company in a California arbitration. The New York lawyers were not licensed in California.

The California Supreme Court held that the New York lawyers violated California's unauthorized practice of law rules. It ordered the New York company to pay for firm work done in New York, but not for firm work done in California.

The ABA revised Model Rule 5.5 to address the issues raised by the Birbrower case. In doing so, the ABA attempted to provide "the proper balance between the interests of a state in protecting its residents and justice system, on the one hand; and the

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interest of clients in a national and international economy in the ability to employ and retain counsel of choice economically.” New Model Rule 5.5 is attached in its entirety as Attachment “A”.

The general rule of Model Rule 5.5 provides that a lawyer may practice only in a jurisdiction in which the lawyer is authorized to do so. Model Rule 5.5(b) goes on to provide that a lawyer, who is not admitted to practice in the jurisdiction, may not establish an office or have a continuous presence in the jurisdiction to practice law, or hold out to the public or otherwise represent that the lawyer is admitted to practice law in the jurisdiction, even if the lawyer does not have an office.

Model Rules 5.5(c) attempts to allow the practice in another jurisdiction on a temporary basis where such practice does not create an unreasonable risk to the interest of the clients, the public or the courts. Model Rules 5.5, Comment 5. According to Comment 6, the lawyer's activity may be temporary even where the services are provided in the jurisdiction on a recurring basis. "Temporary basis" is not defined.

A lawyer licensed in another jurisdiction may associate with a lawyer licensed in the jurisdiction. Local counsel must participate on an active basis. Model Rules 5.5(c)(1), Comment 8.

Rule 5.5(c)(2) provides another exception. The lawyer may handle matters outside of the licensed state if the lawyer's services are in anticipation of litigation in the state in which the lawyer is located or in which the lawyer anticipates being admitted pro hac vice.

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Pursuant to Model Rule 5.5(c)(3), the lawyer may provide services in another jurisdiction where the services are related to the lawyer's practice in a jurisdiction in which the lawyer is admitted and his services to perform does not require a pro hac by submission. The representation must be temporary and be reasonably related to the lawyer's home state.

According to Model Rule 5.5(c) (4), the lawyer is allowed to provide services in another jurisdiction if they are reasonably related to the lawyer's practice in the jurisdiction in which the lawyer is licensed. Rule contemplates an existing client-attorney relationship. This exception, according to Comment 14, recognizes the practical realities of business practice today by considering the needs of national clients to retain counsel to assess similar matters in multiple jurisdictions.

A. Model Rule 5(d)

Model Rule 5.5(d) properly provides important exceptions for in-house counsel and lawyers representing clients in the federal system.

Model Rule 5.5(d)(1) permits a lawyer employed by a organizational entity to provide legal services to the employer or an affiliate of the employer so long as pro hac vice admission is not required. In other words, an in-house lawyer not representing the employer in a matter for an adjudicated tribunal should be protected. The Model Rule also does not authorize representation of employees or customers, if the lawyer is not licensed in the jurisdiction. Model Rule 5.5(d)(1), cmt. 16. The in-house lawyer must still comply with any registration requirements. Id. at cmt. 17.

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Model Rules 5.5(d)(2) protects the lawyer who is allowed to represent the client by federal or other law. Clearly, federal prosecutors and federal patent lawyers are protected. A long-term care attorney representing a nursing facility based in another state in the federal enforcement process should likewise be protected. However, the Report of the Commission on Multi-Jurisdictional Practice is less than clear.

[T]his provision would authorize legal services to be provided on a temporary basis outside the lawyer’s home state by a lawyer who, through the course of regular practice in the lawyer’s home state, has developed a recognized expertise in a body of law that is applicable to the client’s particular matter. This could include expertise regarding nationally applicable bodies of law, such as federal, international or foreign law. A client has an interest in retaining a specialist in federal tax, securities or antitrust law, or the law of a foreign jurisdiction, regardless of where the lawyer has been admitted to practice law. This could also include expertise regarding the law of the lawyer’s home state if that law governs the matter, since a client has an interest in retaining a lawyer who is admitted in the jurisdiction whose law governs the particular matter and who has experience regarding that law.1 The provision would, thus, bring the law into line with prevalent law practices. For example, many lawyers who specialize in federal law currently practice nationally, without regard to jurisdictional restrictions, which are unenforced.2 The same is true of lawyers specializing in other law that applies across state lines.

1

The ABA Section of Intellectual Property Law commented:

our expertise in intellectual property law and in the subject matter, often combined with knowledge of a client’s business, is the overriding reason our clients retain us.… In fact, our clients frequently place a greater value on our expertise than on our location, retaining us even though we do not have an office in any state where they do business. Such clients are seeking uniform, well-informed and efficiently rendered advice regardless of state lines, and they do not want to hire multiple lawyers for multiple states.

ABA Section of Intellectual Property Law, Memorandum to the ABA Commission on Multijurisdictional Practice (Feb. 2, 2001) at 2, http://www.abanet.org/cpr/mjp-comm_silp.html.

2

For example, according to the ABA Section of Health Law:

[R]egardless of geographic bar admission, many lawyers concentrating in health law effectively already practice on a national basis: the Federal law of Medicare, Medicaid and Federal health care reimbursement is interpreted, analyzed and applied by health

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Finally, when practicing in a state under Paragraphs (c) or (d), the lawyer is subject to the applicable disciplinary agency in that jurisdiction.

B. Other changes made to Multi-Jurisdictional Practice

In August of 2002, the ABA also adopted Model Rules for lawyer disciplinary authority and to promote reciprocal discipline of attorneys, a Model Rule for pro hac vice admission, a Model Rule on admission by motion, Model Rule for the licensing of legal consultants and a Model Rule for temporary practice by foreign lawyers. These matters are beyond the scope of this presentation.

IV. THE ATTORNEY WORK PRODUCT PRIVILEGE

In addition to the attorney-client privilege, the attorney work product protection doctrine applies to the discoverability of statements and any other type of information possessed by the attorney, whether written or unwritten, gathered in anticipation of litigation. Information which an attorney gathers in anticipation of litigation is entitled to

lawyers nation-wide, usually without reference to the individual attorney's bar admissions.

ABA Section of Health Law, Position Statement on Multijurisdictional Practice, at 1 (June 29, 2001), http://www.abanet.org/cpr/mjp-comm_shl.html.

A number of entities that commented to the MJP Commission endorsed a provision allowing lawyers to practice federal law in jurisdictions where they are not licensed. See e.g., ABA Section of Antitrust Law, Memorandum to the ABA Commission on Multijurisdictional Practice (Jan.22, 2001), http://www.abanet.org/cpr/mjp-comm_sal.html; Colorado Bar Association Subcommittee on Multijurisdictional Practice, Proposal (June 22, 2001), http://www.abanet.org/cpr/mjp-comm_cba.html; Federal Communications Bar Association (“FCBA”), Statement at the San Diego Hearing of the ABA Commission on Multijurisdictional Practice (Feb. 17, 2001), http://www.abanet.org/cpr/mjp-comm_fcba.html; New York County Lawyers’ Association ad hoc Committee on Multi-jurisdictional Practice (Jan. 29, 2001), http://www.abanet.org/cpr/mjp-comm_nycla.html; ABA Section of Public Utility, Communications and Transportation Law, submission dated March 10, 2001, http://www.abanet.org/cpr/mjp-comm_puctl.html.

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work product protection. For example, if an attorney conducts interviews of witnesses who are not clients, the notes of those interviews are not necessarily attorney-client communications, but are deemed to be work product entitled to special protection from discovery by third parties.

A. Background and Overview

When the Rules of Civil Procedure were amended to permit far-ranging discovery, a problem arose. While communications between a client and the client’s lawyer were protected from discovery by the attorney-client privilege, a lawyer’s mental impressions, conclusions, opinions, and legal theories were not. The issue was whether some other privilege protected them.

The United States Supreme Court first articulated the work product doctrine in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), where the issue was “whether any of those [discovery] devices may be used to inquire into materials collected by an adverse party's counsel in the course of preparation for possible litigation.”. The Supreme Court agreed that the memoranda, statements and mental impressions in issue in this case fall outside the scope of the attorney-client privilege and hence are not protected from discovery on that basis. The United States Supreme Court stating that the doctrine protects against "invading the privacy of an attorney's course of preparation," id. at 512, 67 S.Ct. 385, recognizing that "[i]n performing his various duties ... it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel," id. at 510, 67 S.Ct. 385. The holding was limited to

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what the Court referred to as the “work product of the lawyer,” which was described as “interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways . . .” The Court recognized that such protection is necessary for the adversary system to function smoothly: "Were [work product] open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney's thoughts, heretofore inviolate, would not be his own.... [T]he interests of the clients and the cause of justice would be poorly served." Id. at 511, 67 S.Ct. 385.

The doctrine has been partially codified in F.R.C.P. 26(b)(3) which states: “(A) Ordinarily a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent.” Although F.R.C.P . 26(b)(3) provides protection for tangible documents, that is not the limit of the scope of protection of the doctrine. Hickman provides additional protection for intangible work product, mental impressions and the like. See United States v. Deloitte LLP, 610 F.3d 129 (D.C. Cir., 2010) The doctrine is not absolute; the holding protects from discovery those documents and tangible things prepared in anticipation of litigation by another party or another party’s representative unless the party seeking discovery can show a substantial need for the materials and the inability to reproduce the material without undue hardship.

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B. Work Product Doctrine Differs From The Attorney-Client Privilege

The work product doctrine and the attorney client privilege are distinct from each other and differ in important ways. First, they protect different aspects of the attorney’s actions and the essence of what we do. The work product doctrine protects the “mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party . . .” The attorney client privilege protects communications with and between the attorney and client. Second, some courts have held that the work product privilege is that of the attorney, not of the client, because it is the attorney’s privacy being protected. Others have held that the privilege “was created for the protection of the client as well as the attorney,” and belongs, therefore, to both. The attorney-client privilege, by contrast, belongs to the client, not the attorney.

The work product doctrine applies to criminal, as well as civil, litigation. United States v. Nobles, 422 U.S. 225, 236, 95 S.Ct. 2160, 2169, 45 L.Ed.2d 141 (1975

C. The “Anticipation of Litigation” Test

The threshold question for assertion of the work product doctrine, regardless of the type of information sought or who prepared it, is whether the material was “prepared in anticipation of litigation,” or, in the words of the rule, whether the information sought involves “trial preparation materials.” If so, it falls under the work product doctrine. If not, it does not, and is discoverable unless otherwise privileged, so long as it is either relevant or is “reasonably calculated” to lead to admissible evidence.

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To be sure, the line drawn between documents created in response to an event that might eventually lead to litigation versus documents prepared in aid of litigation is difficult to draw. Some aspect of a corporate acquisition may possibly result in litigation, yet it may not be possible to protect materials relating to the issue under work product protection because the possibility of litigation would be too remote. Courts often find that a remote prospect of litigation is insufficient to trigger work product protection. Unlike the attorney-client privilege, which provides absolute protection to communications, if all the elements of the privilege apply, work product protection may be overcome by a showing of need by a third party such as the Government. The law provides that "fact work product," such as verbatim transcripts of witness interviews, may be discoverable by a third party if a sufficient showing of need is made. On the other hand, what is known as "opinion work product," which consists of the attorney's mental impressions, conclusions, opinions, or legal theories, is not generally discoverable if work product protection applies to the communication. There are crucial differences distinguishing fact or ordinary work product and opinion work product, and the burdens associated with an attempt to avoid the protections vary accordingly.

While generally litigation must be pending or immediately imminent for work product protection to apply. “In anticipation of litigation” does not necessarily mean litigation that has been filed. Rather the two main tests that courts have adopted to determine whether a document is protected under work product privilege are as follows:

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The “because of” test has been adopted by most circuits to determine whether a document is protected as work product. See, e.g., Sandra T.E. v. S. Berwyn Sch. Dist. 100, 600 F.3d 612, 622 (7th Cir.2010); In re Prof'ls Direct Ins. Co., 578 F.3d 432, 439 (6th Cir.2009); In re Grand Jury Subpoena, 357 F.3d 900, 907 (9th Cir.2004); PepsiCo, Inc. v. Baird, Kurtz & Dobson LLP, 305 F.3d 813, 817 (8th Cir.2002); Maine v. U.S. Dep't of the Interior, 298 F.3d 60, 68 (1st Cir.2002); Montgomery County v. Microvote Corp., 175 F.3d 296, 305 (3d Cir.1999); United States v. Adlman, 134 F.3d 1194, 1195 (2d Cir.1998); Nat'l Union Fire Ins. Co. v. Murray Sheet Metal Co., 967 F.2d 980, 984 (4th Cir.1992). This test asks “whether, in light of the nature of the document and the factual situation to the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.” U.S. v. Deloitte, 610 F.3d 129 (D.C. Cir. 2010). The 11th Circuit seems to be silent on this issue.

2. The “Primary Purpose” Test

A more narrow test that has been applied by other courts is the “primary motivating test” where a court looks to what is the “primary motivating force” behind the creation of the document. United States v. El Paso Co., 682 F.2d 530 (5th Cir. 1982). It requires that pending or imminent litigation must be the primary motivating purpose for the creation of the documents, stating ““as long as the primary motivating purpose behind the creation of a document was to aid in possible future litigation.”

These tests become important because some courts have held that the work product doctrine does not protect documents or information developed during the course of normal business activity. See United States v. Textron Inc., 577 F.3d 21 (1st Cir.2009).

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Thus, if an attorney's notes are prepared in the ordinary and regular course of business such as a corporate restructuring or an acquisition, a court may find that they were not prepared in anticipation of litigation. For example, in Textron, the court found that after analysis of the content of the documents, found no evidence that the work papers were prepared for “potential use in litigation” or that they “would in fact serve any useful purpose for Textron in conducting litigation if it arose.” Textron, at 30.

However, in the Deloitte case cited above, the U.S. Government argued that El Paso and Textron stood for the proposition that when a document is created as part of an independent audit, as the Deloitte Memorandum was, its sole function is to facilitate that audit, which means it was not prepared in anticipation of litigation. The D.C. Circuit Court was not persuaded by this argument. It held that under the more lenient “because of” test, material generated in anticipation of litigation may also be used for ordinary business purposes without losing its protected status. It looked with favor on a 2nd Circuit case which considered whether a document containing legal analysis about possible future litigation qualified as work product when it was procured to assist the parties in deciding whether to go through with a proposed merger. See United States v. Adlman, 134 F.3d 1194, 1195 (2d Cir.1998) The Adlman court held that a document created because of anticipated litigation, which tends to reveal mental impressions, conclusions, opinions or theories concerning the litigation, does not lose work-product protection merely because it is intended to assist in the making of a business decision influenced by the likely outcome of the anticipated litigation. Where a document was created because of anticipated litigation, and would not have been prepared in substantially similar form but

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for the prospect of that litigation, it falls within Rule 26(b)(3). Under this same reasoning, material developed in anticipation of litigation can be incorporated into a document produced during an audit without ceasing to be work product.

D. What About “Dual Purpose” Documents

Whether or not a document is considered to be protected by work product privilege depends in large part on the factual circumstances and the test the court decides to employ. Certain courts have found that the dual purpose of a document (business and legal) will not nullify privilege. See Marceau v. I.B.E.W., 246 F.R.D. 610 (D. Ariz. 2007). In that case, the court held that elements of work-product immunity were not satisfied with respect to a report prepared by outside attorneys at a company's request, on audit of operations in the company's Phoenix sales office, and it thus was not protected from discovery in litigation by sales representatives against their employer and union under Racketeer Influenced and Corrupt Organizations Act (RICO) and LMRDA. The Court reasoned that there was insufficient evidence that report was prepared in anticipation of litigation, as an audit was conducted over seven month period that concluded ten months before litigation was filed and report's prefatory statements, findings and recommendations made no reference to fear of anticipated litigation.

Other courts have found that a document conducted for routine business matters does negate work product privilege even with there was also a legal purpose to the document. In City of Worchester v. HCA Management Co, Inc., 839 F. Supp. 86 (D. Mass. 1993), the court reviewed the protection of an analytic memorandum prepared by

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audit and accounting professionals of accounting firm at direction of, and for, deputy general counsel. The Court found the document was created in anticipation of litigation, and was protected work product; document was prepared after firm's client which managed city hospital informed city that hospital had received overpayments from Medicare, and it was reasonable to assume that accounting firm would immediately recognize, as soon as allegations were made, that its audit of hospital would be challenged.

E. How Do Consultants Assisting The Attorney Fit In?

When attorneys engage third parties to assist counsel in going their work those people are agents of the attorney and are treated just as counsel is for the purposes of the attorney-client privilege and attorney work product analyses. The U.S. Supreme Court has held that the work product doctrine applies to documents created by investigators working for attorneys, provided the documents were created in anticipation of litigation. United States v. Nobles, 422 U.S. 225, 239, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975). In reaching this conclusion, the Supreme Court stated:

At its core, the work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client's case. But the doctrine is an intensely practical one, grounded in the realities of litigation in our adversary system. One of those realities is that attorneys often must rely on the assistance of investigators and other agents in the compilation of materials in preparation for trial. It is therefore necessary that the doctrine protect material prepared by agents for the attorney as well as those prepared by the attorney himself.

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In summary, the work product doctrine is a very important tool for counsel to protect not only his or her own work, but also the interests of the client. As Justice Jackson noted in his concurring opinion in Hickman,: "Discovery was hardly intended to enable a learned profession to perform its functions . . . on wits borrowed from the adversary."

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