Chapter 10 - § 10.4 • EXTENSIONS OF THE PRIVILEGE BASED ON THE JOINT-DEFENSE PRIVILEGE OR THE COMMON INTEREST DOCTRINE

• Jurisdiction: Colorado

§ 10.4 • EXTENSIONS OF THE PRIVILEGE BASED ON THE JOINT-DEFENSE PRIVILEGE OR THE COMMON INTEREST DOCTRINE

As described in § 10.3, the general rule is that a client whose otherwise attorney-client privileged communication is made in the presence of or disclosed to a third party has waived the privilege. However, there are several ways in which the attorney-client privilege has been extended as an exception to that waiver rule.

Colorado courts permit extensions of the attorney-client privilege to permit clients and lawyers with common interests to share privileged communications without waiving the privilege.

➤ See, e.g., Gottlieb v. Wiles, 143 F.R.D. 241 (D. Colo. 1992) (no waiver occurs from exchange of privileged materials between persons with common interest).

These extensions themselves do not confer privileged status to any of the communications but allow communications that already are protected by the attorney-client privilege to be shared between those with a common interest without causing a waiver.

➤ Metro Wastewater Reclamation Dist. v. Cont'l Cas. Co., 142 F.R.D. 471, 478 (D. Colo. 1992) (citations omitted).

Courts often are inconsistent in the terms that they use to describe these arrangements, referring to them as common interest exception, common defense privilege, or joint-defense privilege. But there are essentially two kinds of sharing courts analyze under a common interest framework:

1) Sharing between clients jointly represented by the same lawyer(s) (referred to below as joint-defense privilege).
2) Sharing between clients represented by separate counsel (referred to as common interest doctrine).
➤ D. Greenwald & M. Slachetka, Protecting Confidential Information 204 (Jenner & Block 2015).

§ 10.4.1—Joint-Defense Privilege

Two parties represented by the same lawyer can share information without destroying confidentiality. When two or more parties share a common interest in legal advice, the "waiver by disclosure to third parties" rule does not apply to communications between them and their attorney.

➤ See, e.g. , Metro Wastewater Reclamation Dist. v. Cont'l Cas. Co. , 142 F.R.D. 471, 478 (D. Colo. 1992); People v. Lesslie, 24 P.3d 22, 26 (Colo. App. 2000); Gordon v. Boyles, 9 P.3d 1106, 1109 (Colo. 2000).

If parties with a common interest retain a single attorney to represent them and later become adverse, neither is permitted to assert the attorney-client privilege as to such communications occurring during the period of common...