Monday, February 25, 2002
Bill Seeks to Eliminate Some ‘Work Product’ Protections for Attorneys
By a MetNews Staff Writer
A state Assembly bill introduced last week seeks to eliminate at least some of the nearly total protection attorneys have over their preparations for litigation if the materials are deemed to have helped facilitate a crime.
Currently, under the “work product privilege,” any material prepared by or for a lawyer for a case is protected from discovery unless a court finds injustice or prejudice against those asking for the materials.
Under AB 2055, introduced Tuesday by Assemblyman Robert Pacheco, R-City of Industry, the “impressions, conclusions, opinions, or legal research or theories” of lawyers would no longer be protected if the lawyer was employed to allow or help someone commit a crime or fraud.
Attorneys’ work product must currently be turned over to a prosecutor if it is relevant in a legal dispute between an attorney and client, or if the State Bar is investigating an attorney for misconduct.
Pacheco’s bill would allow a larger window of opportunity to file criminal charges by extending the current statute of limitations by the amount of time it takes to resolve any work product claims.
If there already have been proceedings to release the records, prosecutors would be given a new two-year time period after the records are released to the prosecutor to file any criminal charges.
Currently both the attorney work product and attorney-client privilege can be argued when a search warrant is used to seize records. But Pacheco’s bill would place the burden on the attorney asserting the work product privilege to prove that the records in question are work product, and therefore protect it.
Under AB 2055, courts would be required to deny any work product claim by an attorney suspected of criminal activity having to do with the seized records unless it is proven that the lawyer’s services were not used to aid a crime or fraud.
Pacheco’s office did not return calls for comment on the bill.
Copyright 2002, Metropolitan News Company