SC Lawyer, July 2004, #2. Beyond the Bar July 2004 Just between us: the common-interest rule.

AuthorBy Warren Mo\xEFse

South Carolina Lawyer


SC Lawyer, July 2004, #2.

Beyond the Bar July 2004 Just between us: the common-interest rule

South Carolina LawyerJuly 2004Beyond the Bar July 2004 Just between us: the common-interest ruleBy Warren MoïseWhen privileged communications or documents are disclosed to third parties such as lawyers for other clients, the privilege usually evaporates. However, many jurisdictions now extend evidentiary privileges to communications between parties sharing a common interest in potential or actual litigation. One or more doctrines may apply, but probably the most significant one is the common-interest rule.

Confusing terminology

Terminology in this area often is confused. The common-interest rule is also sometimes called the joint "defense" privilege; however, the common-interest rule is not limited to use by defendants. The "allied lawyer doctrine," which in a sense may be seen as a corollary of the common-interest rule, applies when parties with separate lawyers consult about matters of common interest. The common-interest rule is different from the common-interest privilege which makes certain communications non-actionable that otherwise would be slanderous. See Berhanu v. New York State Ins. Fund, 1999 WL 813437, 7-8 (S.D.N.Y. 1999). Finally, the joint client doctrine applies where two clients have the same lawyer.

Background into the rule

In 1871 a privilege was recognized between criminal co-defendants whose lawyers traded information in formulation of a common defense strategy. See Chahoon v. Commonwealth, 62 Va. 822 (1871). Neither Wigmore nor any of the earlier evidence codes mentioned the rule. By the early 1970s only about 12 precedents existed for the rule.

When the proposed Federal Rules of Evidence were before Congress, there were several rules dealing with specific privileges, all of which were rejected as Congress was flooded with special interest groups wanting their own special privilege. The result is Rule 501, which is so vague that no one can really object much to it. However, one of the rejected rules, proposed Rule 503(b)(3), extended attorney client privilege to communications between a client "or his lawyer to a lawyer representing another in a matter of common interest." A pet of Advisory Committee member Judge Jack Weinstein, rejected Rule 503(b)(3) sets forth the "allied lawyer rule." The notes following the rule spoke of it as occurring in a "joint defense"...

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