Gavin Howe
The common interest doctrine is a notable exception to the general rule that the attorney-client privilege does not apply to communications with or later shared with third parties. It allows separately represented parties with common legal interests to share information with each other and their respective attorneys without destroying the attorney-client privilege. The doctrine typically requires an identical legal interest, not just a shared financial interest in a litigation outcome. The common interest privilege is an extension of attorney-client privilege that protects the compelled disclosure of communications between two or more parties and/or their respective counsel when the parties are allied in a common legal interest. Common law, on the other hand, is a body of unwritten laws based on legal precedents established by the courts. It draws from institutionalized opinions and interpretations from judicial authorities and public juries.
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What You'll Learn
Common interest privilege
The common interest privilege is an extension of the attorney-client privilege. It allows one group of clients and their counsel to communicate confidentially with another group of clients and their separate counsel, without the requirement of active litigation. The common interest privilege is not a stand-alone privilege, and to assert a valid claim for common interest privilege protection, one must establish the fundamental elements of any attorney-client privilege claim.
The case law varies regarding the precise meaning of "common". At the most restrictive end of the spectrum, some cases indicate that a common interest means an identical interest. However, other cases find something less than identical interests sufficient to trigger the privilege. In order for the privilege to apply, the legal nature of the communications must predominate over other interests, such as business or personal interests.
When attorneys communicate with each other subject to a common interest defense privilege, they should also be in the habit of marking their communications as such. A court is not bound to uphold a claim of privilege simply because the attorneys wrote "subject to common interest privilege" on a document. However, including such language in a communication can help support a claim of privilege.
The common interest privilege often causes confusion among both attorneys and courts because jurists often mix up this privilege with similar doctrines. It is always imperative for a practitioner to look for precedent in the controlling jurisdiction and, failing that, look for persuasive case law or secondary authorities elsewhere. Currently, there is sparse case law in both the courts of last resort in most states and the federal circuit courts of appeal. As such, the precise contours of the common interest privilege are not fully settled across the country, and future cases will be needed to bring further clarity to this area of the law.
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Common interest doctrine
The common interest doctrine is a legal concept that allows separately represented parties with shared legal interests to exchange privileged communications without losing legal protection. It is also known as the joint defence doctrine. The doctrine is often invoked in disputes between an insurer and an insured party, where the insurer seeks access to materials shared between the insured and their counsel.
The common interest doctrine is distinct from the common interest privilege, which is an extension of the attorney-client privilege. The common interest privilege is recognised in most jurisdictions and does not require the reasonable anticipation of litigation. However, it typically applies only when each separate client group has its own attorneys. In the case of BBAM Aircraft Management LP v. Babcock & Brown LLC, the court held that the common interest doctrine could apply even to a non-party to the litigation and that it could avoid a waiver even without an attorney's involvement.
The precise interpretation of the common interest privilege varies across jurisdictions, and the terminology used by judges may differ. While some cases indicate that a common interest requires an identical interest, others have taken a more expansive view. Attorneys should be mindful of the terminology favoured by the pertinent jurisdiction when asserting a claim for common interest privilege protection.
To assert a valid claim for common interest privilege protection, one must establish the fundamental elements of any attorney-client privilege claim and meet additional requirements specific to the common interest privilege. Attorneys should also be in the habit of marking their communications as subject to the common interest privilege, as this can help support a subsequent privilege claim.
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Attorney-client privilege
The origins of attorney-client privilege can be traced back to medieval England, where the king presided over trials and relied on attorneys to present cases. While attorneys were expected to disclose all relevant information as officers of the court, courts eventually recognized that forcing attorneys to reveal client confidences undermined justice. This led to the principle that even the king could not compel an attorney to disclose privileged communications, which was affirmed in the English case Berd v. Lovelace in 1577. By the 18th century, this doctrine had solidified in English common law and was later adopted in the American legal system, where it became a foundational rule of professional ethics.
In the context of common interest, the common interest doctrine can prevent a waiver of attorney-client privilege when separately represented clients disclose privileged communications to each other. However, this typically requires an identical legal interest, rather than just a shared financial interest in a litigation outcome. The precise contours of the common interest privilege vary across jurisdictions, and future cases will be needed to bring further clarity to this area of the law.
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Common legal interests
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law originated in medieval England and is still very much in effect in the US and other countries today.
The common interest doctrine allows separately represented parties with common legal interests to share information with each other and their respective attorneys without destroying the attorney-client privilege. It is also known as the joint defense doctrine. The doctrine typically requires an identical legal interest, not just a shared financial interest in a litigation outcome.
The common interest privilege is an extension of the attorney-client privilege that protects the compelled disclosure of communications between two or more parties and/or their respective counsel when the parties are allied in a common legal interest. This privilege is usually a creature of state, not federal, law. To assert a valid claim for common interest privilege protection, one must establish the fundamental elements of any attorney-client privilege claim, as well as additional requirements specific to the common interest flavor of privilege.
The precise contours of the common interest privilege are not fully settled across the country, and future cases will be needed to bring further clarity to this area of law. Practitioners should be cautious when sharing privileged information and should always look for precedent in the controlling jurisdiction.
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Joint defence doctrine
The joint defence doctrine, also known as the common interest rule, is an extension of attorney-client privilege. It allows parties with a shared interest in actual or potential litigation against a common adversary to share privileged information without waiving their right to assert attorney-client privilege. The doctrine applies when parties have an identical legal interest, not just a shared financial interest in a litigation outcome.
The joint defence doctrine is particularly relevant in the context of intellectual property, where courts have taken varying approaches to its application. For example, in BBAM Aircraft Management LP v. Babcock & Brown LLC, the court held that the doctrine could be available to a non-party to the litigation and that it could avoid a waiver even without an attorney's involvement in the communication.
To assert a valid claim for common interest privilege protection, one must establish the fundamental elements of any attorney-client privilege claim and meet additional requirements specific to the common interest privilege. Attorneys should also be mindful of the terminology used, as different courts may use varying nomenclature when discussing the common interest privilege.
It is important to note that the common interest doctrine is not a separate privilege but rather an exception to the general rule that attorney-client privilege does not attach to communications with or in the presence of third parties. The doctrine applies only when common interest participants are engaged in a joint effort or strategy to further their common interests, and the underlying communication must be intrinsically privileged to deserve protection.
In the context of government investigations, joint defence and common interest agreements are often used to retain privilege and develop legal strategies. It is considered best practice to reduce such agreements to writing, as it provides strong evidence of a joint legal effort and can outline processes for adding and removing parties, as well as the return of privileged materials.
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Frequently asked questions
Common law is a body of unwritten laws based on legal precedents established by the courts. It draws from institutionalized opinions and interpretations from judicial authorities and public juries.
Common law is deeply rooted in stare decisis, which means "to stand by things decided". Courts follow precedents established by previous decisions. When a similar case has been resolved, courts typically align their reasoning with the precedent set in that decision.
The common interest doctrine allows separately represented parties with common legal interests to share information with each other and their respective attorneys without destroying the attorney-client privilege. It is also known as the joint defense doctrine.
Common interest privilege is an extension of attorney-client privilege that protects the compelled disclosure of communications between two or more parties and/or their respective counsel when the parties are allied in a common legal interest.
The common interest doctrine sometimes prevents what would be a waiver when separately represented clients disclose privileged communications to each other. However, the doctrine usually requires an identical legal interest, not just a shared financial interest in a litigation outcome.
