20.14 Later Adversity Among Participants

• Library: The Attorney-Client Privilege and the Work Product Doctrine: A Practitioner's Guide (Virginia CLE) (2013 Ed.)

20.14 LATER ADVERSITY AMONG PARTICIPANTS

20.1401 Introduction. Not surprisingly, in a litigation or pre-litigation world where today's allies might become tomorrow's enemies, courts have dealt with the effect of adversity among common interest agreement participants.

20.1402 Effect of Later Adversity. The effect of adversity among common interest participants is discussed in Chapter 24 of this book. In essence, that situation parallels adversity developing between jointly represented clients, with one significant exception explained in that chapter.

20. 1403 Aggressive Use of the Doctrine. Litigants occasionally attempt to use the common interest doctrine almost as a sword rather than a shield. Using the commonality of interest, these litigants analogize a common interest arrangement to a joint representation of multiple clients on the same matter. In a joint representation setting, there generally can be no secrets among the jointly represented clients, and one client normally has access to communications between the other jointly represented client and their common lawyer.

It does not make much sense to use the common interest doctrine aggressively in such a situation. Unlike a joint representation, in which the clients often understand that all information disclosed to the common lawyer will be shared with all of the clients, the common interest doctrine does not require a disclosure of any information to the other common interest participants. Indeed, that is one of the two main reasons why parties frequently decide to enter into a common interest agreement rather than hire a common lawyer. Given this distinction, a common interest participant should not be permitted to aggressively seek from other participants what those participants had no obligation to share in the first place.

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For some reason, such aggressive use of the common interest agreement seems to have arisen most prominently in the insurance context. The 1991 Illinois case called Waste Management inexplicably recognized a common interest between an insurance company and the insured even when the insurance company denied coverage and did not hire the insured's lawyer—thus allowing the insurance company to later gain access to communications between the insured and the lawyer that the insured had to hire itself. ²⁹¹ The court found a common interest in an insurance policy provision requiring the insured to cooperate with the insurance company. Other courts have adopted the Waste Management approach...