Generally, we’re encouraged to share, to cooperate, and to collaborate. But, that’s not always the case for lawyers. Attorneys may shy away from these niceties because open communication may result in the unintended disclosure of non-public information during discovery. The attorney-client privilege obviously protects those communications between professional and client. The common-interest privilege goes further. The common-interest privilege protects the confidentiality of communications passing amongst attorneys for different parties, often in the context of a joint defense effort. This privilege affords all parties the opportunity for open communication, in turn enabling counsel to strategize in anticipation of or in the course of litigation. This privilege was significantly expanded in a recent decision out of New Jersey which expressly adopted broad confidentiality protections in the common interest scenario.
The court found that plaintiff O’Boyle, a frequent filer of public records requests, should not be permitted access to a series of letters exchanged between two attorneys, each with clients facing off against O’Boyle in separate cases. The trial court shielded these materials from disclosure on the grounds that the municipality and the attorney representing the former official shared a common purpose based on prior and expected litigation against the plaintiff. Further the court noted that the two attorneys had shared the materials in a way that was intended to preserve their confidentiality, specifically, by captioning their correspondence “Confidential: Joint-Defense Strategy Memorandum” and “Confidential Joint Defense Attorney Work Product.”
The Supreme Court affirmed that the materials were shielded from disclosure, stating that “the common interest exception to waiver of attorney-client privilege or work product due to disclosure to third parties applies to communications between attorneys for different parties if (1) the disclosure is made due to actual or anticipated litigation for the purpose of furthering a common interest, and (2) the disclosure is made in a manner to preserve the confidentiality of the disclosed material and to prevent disclosure to adverse parties.” The court further held that the disclosure may occur prior to litigation, that the parties need not share an identical interest (as long as they have a common purpose), and that the attorneys need not be involved in the same court matter.
The common interest privilege applies differently across the country. For example, some jurisdictions require a direct connection between the parties for the privilege to apply, while others require the existence of actual litigation. Still others require that the communication was made “in the course and for the advancement of a joint defense” or to “develop or further a joint defense.” No matter your jurisdiction, here are some tips to improve the chance that information you share with another attorney will be protected by the privilege.
- Point out the privilege. According to the NJ Supreme Court, in order for the rule to apply, the parties claiming common interest have to act in a way that reflects the privileged nature of the material, such as taking steps to prevent opponents from accessing them.
- Promptly put it on paper. Before sharing privileged information with another party, clearly delineate (1) the subject matter of common purpose, (2) the scope and purpose of the common interest, and (3) the extent to which one party retains the right to waive the privilege or use the information adverse to the other party should their interest diverge.
- Characterize the client(s). Before sharing, also take this opportunity to be clear about who is and is not your client. This way, you protect yourself from disqualification efforts if your current ally becomes an adversary.