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In Upjohn Co v. United States, the United States Supreme Court acknowledged that the attorney-client privilege - the "oldest of the privileges for confidential communications known to the common law" - has the crucial purpose of "encourag[ing] full and frank communication between attorneys and their clients and thereby promote[s] broader public interests in the observance of law and administration of justice." Similarly, in Hickman v Taylor, the Court stressed the importance of the work-product doctrine, noting that "[n]ot even the most liberal of discovery theories can justify unwarranted inquiries into the files and the mental impressions of an attorney." It is beyond question that, at a theoretical level, the attorney-client privilege and the work-product doctrine serve significant interests and that, at a practical level, attorneys constantly encounter issues involving these principles.
Nevertheless, many attorneys do not acquire their familiarity with these crucial principles in any systematic way. Law school courses and casebooks often treat these principles superficially, and busy practicing lawyers tend to research specific issues only as they arise in the course of their work. As a result, many attorneys (and perhaps some judges) may not clearly understand the significance, scope, and limits of these doctrines. This publication is an attempt to solve this problem by offering a systematic and thorough examination of the attorney-client privilege and the work-product doctrine under Michigan law.
Part II of this text addresses the attorney-client privilege; Part III addresses the work-product doctrine; and Part IV addresses ethics concepts of confidences and secrets. Wherever possible, Michigan authority has been cited and quoted. In some instances, federal cases are instructive in interpreting Michigan law or in filling an apparent gap in Michigan law; under those circumstances, the text freely cites and quotes from federal authority. The goal is to provide a comprehensive examination of these principles as interpreted by the Michigan courts.
Institute of Continuing Legal Education
attorney-client privilege, work-product doctrine, Michigan law, Upjohn Co v United States, Hickman v. Taylor
Legal Ethics and Professional Responsibility | State and Local Government Law
D. A. Celphane, Barbara L. McQuade, Leonard Niehoff, and Daniel P. Malone. The Attorney-Client Privilege and the Work-Product Doctrine in Michigan. Ann Arbor, MI: The Institute of Continuing Legal Education, 1998.