Joint Defense/common Interest Privilege in Kansas
| Publication year | 2006 |
| Pages | 20-29 |
| Citation | Vol. 75 No. 2 Pg. 20-29 |
75 J. Kan. Bar Assn. 2, 20-29 (2006). Joint Defense/Common Interest Privilege in Kansas
75 J. Kan. Bar Assn. 2, 20-29 (2006)
Introduction
Civil and criminal defendants often need to share attorney-client privileged information for their mutual benefit. Sharing, however, may be construed as a privilege waiver. Over the past 100 years,(fn1) the joint defense privilege(fn2) has been adopted to allow defendants to share information without a waiver. The privilege has been embraced because it provides great value to the adversarial system. As one court explained, a joint defense provides defendants "a pooling of resources, a healthy exchange of vital information, a united front against a common litigious foe, and the marshaling of legal talent and advice."(fn3) All 50 states, recognizing the value, have adopted the joint defense privilege in some form, either by statute or common law.(fn4) This article reviews Kansas authority, which is somewhat limited, and case law from other states that have adopted the privilege.
In approximately half the states, a statute codifies the privilege.(fn5) Some states have adopted an evidentiary rule proposed by the Supreme Court in 1971 for the Federal Rules of Evidence.(fn6) Others have adopted a rule modeled after the Uniform Rule of Evidence 502(b), which requires pending litigation for the privilege to apply.(fn7) The remaining states rely on common law.(fn8)
Kansas has not adopted a statutory joint defense privilege, but the Court of Appeals appears to have recognized a common law privilege in State v. Maxwell.(fn9) A Kansas federal court applied Maxwell to uphold the privilege.(fn10) But the Maxwell parties were represented by the same attorney; therefore, the holding does not conclusively support a common law joint defense privilege, except in that circumstance. Likewise, the court in Sawyer v. Southwest Airlines(fn11) rejected Maxwell's applicability to communications between a defendant insured and its nonparty insurer, but recognized the "common interest doctrine" to shield their communications. In Associated Wholesale Grocers Inc. v. Americold Corporation,(fn12) however, the Kansas Supreme Court reserved consideration for recognition of the privilege, suggesting that the matter might still be in doubt. At least one Kansas district court has specifically rejected a claim of joint defense privilege because the lawyer-
client privilege statute, K.S.A. 60-426, is silent on the subject.(fn13) Thus, the status of the joint defense privilege in Kansas remains in flux.
This article initially discusses decisions by Kansas state and federal courts concerning the joint defense privilege. It then presents issues raised by courts in other states that may provide guidance for Kansas courts and counsel. Finally, suggested points for inclusion in any joint defense agreement are offered.
The Starting Point: State v. Maxwell
State v. Maxwell(fn14) is the first Kansas case to discuss the joint defense privilege. But this case actually addressed the privilege in the context of common representation by one attorney, so the facts do not provide clear support for a broader joint defense privilege.
In Maxwell, defendant Johnny Ray Maxwell appealed his conviction on one sale of marijuana count. He claimed that two other defendants, both of whom at the time shared common defense counsel with him, revealed that he was not their usual supplier, and that the night of his arrest was the first time they had purchased marijuana from him.(fn15) He sought to use this evidence to impeach their trial testimony that Maxwell was their principal source of marijuana and had supplied it to them on previous occasions. The trial court, however,
refused to admit statements made in the presence of their common counsel.(fn16)
On appeal, Maxwell claimed that the communications by the other two defendants to their mutual attorney constituted a waiver of the attorney-client privilege.(fn17) In the alternative, he asserted that if the attorney-client privilege attached to communications between all defendants and their common counsel, that privilege was waived through the subsequent disclosure of the information to the assistant district attorney.(fn18)
The Court of Appeals upheld the trial court's ruling that the presence of the defendant at the time the other two defendants made their statements did not constitute waiver of the attorney-client privilege and reasoned as follows:
Where two or more persons employ an attorney as their common attorney, their communications to him in the presence of each other are regarded as confidential so far as strangers to the conference are concerned. [Citation omitted.] When a controversy arises between third persons and the several clients, communications made by the clients to their common attorney are entitled to the protection from disclosure, which the attorney-client privilege affords. [Citation omitted.]
The rule goes further and provides that where several persons employ an attorney and a third party seeks to have communications made therein disclosed, none of the several persons - not even a majority - can waive this privilege. [Citation omitted.] These rules are based on a "joint defense privilege," which extends the attorney-client privilege to communications made in the course of joint defense activities. Where two or more persons jointly consult an attorney concerning mutual concerns, their confidential communications with the attorney, although known to each other, will be privileged in controversies of either or both of the clients with the outside world. [Citations omitted.](fn19)
In dicta, the court went on to note:
The assurance of confidentiality is as important and appropriate in a joint defense of defendants whose attorneys are separately retained as it is where co-defendants have engaged common counsel. Matter of Grand Jury Subpoena [etc., Nov. 16, 1974], 406 F. Supp. [381], at 387-88 [S.D.N.Y. 1975]. We can see how no policy served by the privilege is disserved by recognition of the joint defense privilege.(fn20)
Thus, the Court of Appeals broadly endorsed the joint defense privilege even though the issue before it concerned only common counsel.(fn21)
Evolution of the Joint Defense Privilege in Kansas Courts
Maxwell's statements concerning the joint defense privilege were relied upon by Judge John W. Lungstrum in Burton v. R.J. Reynolds Tobacco Co.,(fn22) in holding that certain documents sought by the plaintiff through discovery were privileged. In Burton, the plaintiff, who had brought a product liability action against two tobacco companies, moved to compel certain documents - including some withheld under a joint defense privilege claim. The court applied Maxwell to analyze defendant R.J. Reynolds Tobacco Co.'s claim that information shared by its attorney with counsel for actual or potential codefendants was privileged. The court, citing Maxwell, found that such sharing of information "does not constitute a waiver of the attorney-client privilege based on the joint defense exception to the general rule that no privilege attaches to communications made in the presence of third parties." [Citation omitted.](fn23) The court then embraced Maxwell's views regarding the scope of the privilege: the joint defense privilege encompasses shared communications to the extent that they concern common issues and are intended to facilitate representation in possible subsequent proceedings.(fn24) Additionally, information among co-defendants must have been shared in confidence solely for assisting the common cause.(fn25)
In Sawyer v. Southwest Airlines,(fn26) Judge David J. Waxse considered whether the common interest doctrine applied to protect from disclosure Southwest Airlines' (Southwest) documents that had been shared with its insurer, Global Aerospace (Global). The plaintiffs had asserted that the disclosure to Global waived any attorney-client privilege.(fn27) In response, Southwest argued that Global also was a client of the same attorney, so there was an attorney-client relationship. Southwest further noted that Global's claims attorney had requested legal advice, which was provided through written communications that were the subject of the motion to compel.(fn28) The court observed that, although not expressly asserted by name, Southwest had established all of the necessary elements of the common interest doctrine.(fn29) Judge Waxse noted that "[t]he common interest doctrine, however, affords two parties with a common legal interest a safe harbor in which they can openly share privileged information without risking the wider dissemination of that information."(fn30) He further found, however, that Maxwell did not apply because Global was not a co-defendant in the case.(fn31) Although the court acknowledged that no Kansas statute or case recognized the common interest doctrine as a distinct privilege, it found that the documents in issue were protected from disclosure because the common interest doctrine is an exception to the general waiver rule.(fn32) Thus, the Kansas joint defense privilege appears to be alive in federal courts, although Burton was decided prior to the Kansas Supreme Court's only discussion of the issue and Sawyer does not mention the Court's decision.
The Kansas Supreme Court subsequently declined to definitively rule on the privilege, and its statements raised the possibility that it might not be upheld. In Associated Wholesale Grocers v. Americold Corporation,(fn33) the Court held that the district court erred in disqualifying trial counsel for National Pacific Indemnity Co. (NPIC), an excess insurer for the defendant Americold.(fn34) The case arose out of a fire in Americold's warehouse and subsequent disputes with its insurers and...
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