10.04. Attorney-Client Privilege and Common Interest Arrangement [Restatement § 76]

.3         Attorney-client privilege and common interest arrangements [Restatement § 76]

This situation is different than the co-client situations because common interest arrangements contemplate that the clients are represented by different lawyers. This happens all the time. For example, in mass tort litigation such as asbestos you will often have a plaintiff that sues a number of defendants the plaintiff believes manufactured/delivered/distributed products that caused the plaintiff’s asbestos-related illness. Each of the defendants is represented by a different lawyer. It makes sense that these lawyers – each representing a different client – would want to coordinate their strategy in defending against the plaintiff’s claimand reduce the cost of duplicative preparation.  The problem, if the common interest arrangement did not exist would be that any communication between one lawyer and their client in front of another lawyer would not be privileged – because of the presence of the non-privileged third party.

 The common interest arrangement “is an exception to the general rule that voluntary disclosure to a third party of purportedly privileged information waives the privilege.”[1]  Without recognition of common interests, any communications by a lawyer or client to the lawyer of another party would lose its privileged status. Do you see why – because it would not be made in confidence between privileged persons.

The extent of the privilege is the same as in the joint client context. The privilege applies if a third party seeks to have communications between common interest participants disclosed. Any of the parties to the common interest arrangement can raise the privilege to prevent disclosure. However, if a dispute arises between members of the common interest group then the communications can be used in that dispute. So, to further the asbestos analogy above, if two of the defendants in the joint defense agreement have a falling out and sue each other, the communications made in the course of the joint defense would not be privileged and could be used in the lawsuit.

[1] Acceleration Bay LLC v. Activision Blizzard, Inc., 2018 WL 798731, *2 (D. Del. 2018).