24.4 Joint Defense/common Interest Participants

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

24.4 JOINT DEFENSE/COMMON INTEREST PARTICIPANTS

24.401 Introduction. To a large extent, participants in a joint defense/common interest arrangement face the same general rules about the power to waive that face participants in a joint representation. Each of the participants

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generally can waive his or her own communications, but all the participants must unanimously vote to waive privilege-protected communications that have been shared with the other participants, and thus in essence have become common property.

As in the joint representation, the development of adversity can cause the privilege to essentially "evaporate." However, one critical distinction between a common interest arrangement and a joint representation is that the participant in the former type of arrangement normally cannot obtain access to other participants' private communications with their own lawyer. In other words, the only communications at risk of discovery if common interest participants become adversaries are those that have become common property. In fact, this is one of the reasons that clients and their lawyers often enter into common interest arrangements rather than joint representations. Chapter 20 of this book discusses joint defense/common interest arrangements.

24.402 Participants' Own Communications. As with a joint representation, each common interest arrangement participant generally has the power to waive the privilege covering his or her own separate communications with the group. ⁶⁵ This general rule apparently applies even when a participant has spoken to a lawyer for another participant. ⁶⁶ Presumably, a subset of the common interest arrangement participants may agree to waive the protection covering communications in which just those members participated. ⁶⁷

24.403 Unanimity Required to Waive Joint Communications. As in a joint representation, common interest arrangement participants must unanimously agree to waive the privilege protecting their joint communications. ⁶⁸ As in other contexts, the common interest participants' acquiescence in one participant's disclosure normally will have the same effect as a deliberate waiver on their part. ⁶⁹

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24.404 Unshared Communications. Because common interest arrangements do not involve the normal "no secrets" principle applicable to joint representations, adversity among common interest participants usually does not have the same effect as adversity among jointly represented clients. Such adversity generally does not allow one common interest participant to obtain access to communications between another participant and that individual's separate lawyer that were not shared among the common interest participants. ⁷⁰ In other words, the only communications that are "at risk" for disclosure if common interest participants have a falling out are those communications that were shared among the common interest participants. ⁷¹

This important difference highlights the distinction between common interest arrangements and joint representations.

24.405 Degree of Adversity Required. As with the privilege that covers communications among jointly represented clients, courts debate the degree of adversity that destroys the common interest doctrine protection. The Restatement ...