The Attorney-Client Privilege and the “Common Interest” Doctrine

Most individuals assume that all of their communications with their attorneys are privileged.  But, this is not always the case.

First, the privilege applies only to communications made in the context of an attorney-client relationship for the primary purpose of securing either a legal opinion or legal services. Only such communications are protected. 

Second, since the purpose of the privilege is to encourage open communication between a client and attorney, the privilege also protects communications if they would tend to disclose the client's confidential communications. Thus, if there was an expectation of confidentiality the attorney-client privilege would apply.

Third, for anyone considering seeking counsel from an attorney, it is important to know that not all communications made between a client and his or her attorney are protected under the attorney-client privilege.

Fourth, disclosure of attorney-client privilege protected communications to a third party would constitute a waiver of the privilege. Thus, to preserve the privilege, both the attorney and client must be very careful not to share privileged information with any third-parties.

However, this rule is subject to one exception. If the privileged communication is shared with a third party who shares a common legal interest with respect to the subject matter of the communication, the privilege is not waived. In other words, even though the communications were shared with a third party, there is still an expectation of privacy with regard to it. This exception to waiver is known as the “common legal interest” doctrine or “joint defense” privilege.

While most jurisdictions recognize the “common interest” doctrine, there are differences in how broadly courts have interpreted and applied the privilege. Within the Second Circuit, the privilege applies if it can be demonstrated that the parties communicating: (1) have a common legal, rather than commercial, interest; and (2) the disclosures are made in the course of formulating a common legal strategy. Thus, for example, the privilege would not apply to parties discussing a joint business strategy which happens to include as one of its elements a concern about litigation, since the communications are regarding a commercial, not legal interest. Nor would the privilege apply to parties whose communications only mention possible shared concerns about potential litigation as this would not be sufficient to show a common legal strategy. A common example of “common interest” doctrine is the privilege which protects communications between co-parties to a litigation represented by separate counsel.

In other jurisdictions, courts have extended the “joint defense” privilege to civil co-defendants, parties that had been individually summoned before a grand jury, potential co-parties to prospective litigation, plaintiffs who were pursuing separate actions in different states, and civil defendants who were sued in separate actions. Further, in some jurisdictions the “common interest” doctrine applies not only to communications subject to the attorney-client privilege, but also to communications protected by the work-product doctrine.