Application of the Joint Defense Privilege and Common Legal Interest Rule

• Publication year: 2003
• Pages: 51
• Citation: Vol. 32 No. 1 Pg. 51

32 Colo.Law. 51 Colorado Lawyer 2003.

2003, January, Pg. 51. Application of the Joint Defense Privilege and Common Legal Interest Rule

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51

Vol. 32, No. 1, Pg. 51

The Colorado Lawyer
January 2003
Vol. 32, No. 1 [Page 51]

Specialty Law Columns
Civil Evidence
Application of the Joint Defense Privilege and Common Legal Interest Rule
by Timothy M. Reynolds

This month's article was written by Timothy M. Reynolds an associate at Holme Roberts & Owen llp - (303) 861-7000, reynolt@hro.com

Those interested in submitting an article for publication in Civil Evidence should contact the editor, Lawrence M Zavadil, at (303) 389-4644 or lzavadil@jcfkk.com.

Q: Does Colorado recognize a joint defense privilege or common legal interest rule as an extension of the attorney-client privilege?

A: The Colorado Supreme Court has specifically recognized a joint defense privilege when co-defendants are represented by the same counsel. However, Colorado courts have not yet addressed the issue where co-defendants engaged in a joint defense effort are represented by separate counsel.

Assumed Facts

Susan Shareholder, the sole shareholder of a privately held company, agreed to sell her company to Big Country Energy, Inc., a publicly traded corporation, in exchange for $1 million cash and $2 million worth of Big Country common stock. Soon after the deal closed, Big Country announced that, due to accounting errors, it was revising its financial statements to show significantly reduced revenues for the previous two years. The value of Shareholder's Big Country common stock dropped to $100,000, and Shareholder brought suit in Colorado state court against Big Country, its president, and chief financial officer ("CFO"), alleging various Colorado securities laws violations. Big Country and its president hired Acme Law Firm to represent them against Shareholder's claims. CFO hired the Other Law Firm to prepare his defense.

Two meetings took place shortly thereafter. One week after Shareholder filed her lawsuit, the president and two employees of Big Country met with their Acme Law Firm attorney to discuss issues relating to their defense against Shareholder's allegations.

A few days later, a second meeting took place. The Acme Law Firm attorney met with CFO and the attorney from the Other Law Firm, who was representing CFO. The parties agreed to conduct a joint defense. They then proceeded to discuss issues related to their defense.

If Shareholder seeks discovery regarding the information Big Country's president revealed to its employees and the Acme Law Firm attorney, can the president successfully assert the attorney-client privilege? What if...