Taking the Business Out of Work Product

Over the past fifteen years, a common set of questions has surfaced in different areas of scholarship about the breadth of the corporate attorney’s role: Should the corporate attorney provide business advice when providing legal advice? Should the corporate attorney provide counsel related to other disciplines such as public relations, social responsibility, morals, accounting, and/or investment banking? Should the corporate attorney prevent corporate wrongdoing? Questions like these resound in the scholarship addressing the risks and benefits of multi-disciplinary partnerships, gatekeeping, moral counseling, ancillary services, and the application of the attorney-client privilege. When looked at in combination, these segregated discussions equate to an unidentified but burgeoning debate about the proper role of the corporate attorney and whether a distinction can or should be made between doing business and practicing law.This debate also exists in court opinions assessing the reach of recent SEC regulations, the work product doctrine, and the attorney-client privilege. Indeed, the application of the doctrine assessing these issues provides a lens through which to view the tensions created by the increasingly transdisciplinary and globalized role of the corporate attorney and the changing contours of litigation. To that end, by analyzing a sampling of federal court opinions that address the work product doctrine in the context of work related to public relations, this Article seeks to show that variations in how the doctrine is applied reflect disagreement about how expansive the role of today’s corporate attorney and the definition of litigation should be. Further, given that judges can make decisions about work product protection based on their often narrow view of the proper role of an attorney as opposed to a businessperson, this Article argues that distinguishing between business and law when analyzing the work product doctrine is not only arbitrary and impossible in the corporate law context, but also inappropriate. This is clear when considering the history and purpose of the work product doctrine and the current application of the corporate attorney-client privilege.Therefore, the more elementary goal of this Article is to offer a refined approach to the work product doctrine in the corporate law context to better align it with the reality of corporate practice, corporate litigation, and the expanded role of the corporate lawyer in today’s society. Although this Article offers a preliminary recommendation for a new work product test, its primary recommendation is that courts take the business prong out of the work product analysis entirely so that (1) courts do not attempt to make a distinction between business and law when analyzing whether work is protectable and (2) the application of the doctrine does not hinge on a judge’s view of how expansive corporate practice or litigation is or should be. The more ambitious goal of this Article, however, is to urge those in the legal profession to begin a comprehensive discussion about the proper role of the corporate attorney and to consider whether, as the responsibilities and expectations of corporate lawyers grow, and as our definition of litigation expands, the law’s protective doctrines should follow suit.