Attorney Work Product in California

Code of Civil Procedure Part 4, Title 4, Chapter 4 deals with attorney work product under the Civil Recovery Act. Section 2018.010 defines the term “client.”

Section 2018.020 sets forth the policy of the state, including the need to preserve the rights of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable, but also the unfavorable aspects of those cases.

Section 2018.030 specifies that a writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances.

In addition, the work product of an attorney generally is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party’s claim or defense or will result in an injustice.

Section 2018.040 provides that this chapter is intended to be a restatement of existing law relating to protection of work product. It is not intended to expand or reduce the extent to which work product is discoverable under existing law in any action.

Section 2018.050 specifies that, when a lawyer is suspected of knowingly participating in a crime or fraud, there is no protection of work product under this chapter in any official investigation by a law enforcement agency or proceeding or action brought by a public prosecutor if the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit a crime or fraud.

Section 2018.060 allows an attorney to request an in camera hearing as provided for in People v. Superior Court (Laff) (2001) 25 Cal.4th 703.

Section 2018.070 allows the State Bar to discover the work product of an attorney against whom disciplinary charges are pending when it is relevant to issues of breach of duty by the lawyer and requisite client approval has been granted. It is usually subject to a protective order.

Section 2018.080 states that, in an action between an attorney and a client or a former client of the attorney, no work product privilege under this chapter exists if the work product is relevant to an issue of breach by the attorney of a duty to the client arising out of the attorney-client relationship.