United States: When Sharing Is Caring: The Federal "Common Interest Privilege"

The attorney-client privilege protects communications for the purpose of obtaining legal advice between attorney and client.¹ It applies not only to communications with outside counsel but also with in-house attorneys who are acting in the role of legal advisors as opposed to decision-makers.² Normally, the disclosure of communications that are protected by the attorney-client privilege will waive the privilege as to all attorney-client communications regarding the same subject matter.³ Waiver of privilege makes attorney-client communications discoverable in a lawsuit.

In some circumstances, however, discussion of privileged material with a third party becomes necessary to coordinate a legal strategy among two or more people or entities. The "common interest" or "joint defense" privilege, which applies to such circumstances, is an exception to the typical waiver rules applicable to the attorney-client privilege.⁴ Rather than afford additional or separate protections, the "common interest privilege" widens the circle of people with whom privileged communications may be shared.

Still, the label can be deceiving. A shared interest or desired outcome alone is insufficient to keep privileged communications within the protected circle. Instead, two parties must be communicating in the interest of a joint legal strategy and based on an agreement to do so.⁵ Common examples of this type of arrangement include those between co-parties to a particular lawsuit or between an insurance company and an insured who has been sued.

Maintaining attorney-client privilege has, like many things, become more complicated with employees and attorneys alike working remotely amid the Coronavirus pandemic. In times like these, it is helpful to review privilege and confidentiality rules and, in particular, the rules applicable in your jurisdiction. Since different rules govern depending on whether you're in state or federal court, or whether your lawsuit in federal court involves state or federal law, always discuss privilege with your attorney before discussing confidential communications with anyone.

Footnotes

1. In re EchoStar Comms. Corp., 448 F.3d 1294, 1300-01 (Fed. Cir. 2006).

2. Edwards v. Whitaker, 868 F. Supp. 226, 228 (M.D. Tenn. 1994).

3. In re EchoStar, 448 F.3d at 1301.

4. In re Pacific Pictures Corp., 679 F.3d 1121, 1129 (9th Cir. 2012).

5.Id.; John B. v. Goetz, 879 F. Supp. 2d 787, 898 (M.D. Tenn. 2010).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.