While confidentiality is usually destroyed when communications between an attorney and client take place in the presence of a third party or when work product is shared with others, those communications can remain protected if the common interest doctrine applies.
Often referred to as the “common interest,” “joint defense,” or “pooled information” doctrine, these exceptions enable litigants who share unified interests to exchange privileged information to prepare their cases without losing the protection afforded by the privilege. Under this exception, clients and their attorneys sharing common litigation interests may exchange information among themselves without fear that by their exchange they will forfeit the protection of the privilege.
Some key questions as to whether the common interest doctrine applies are whether: 1) The parties share a common interest, 2) The disclosing party had a reasonable expectation of confidentiality, and 3) The disclosure is reasonably necessary.
Courts in many jurisdictions have recognized the common interest exception where the group members included criminal co-defendants, civil co-defendants, companies that had individually been summoned before a grand jury, co-parties to potential litigation, members of a class of plaintiffs pursuing separate litigation in state and federal courts, and defendants being sued in separate actions.
While jurisdictions differ in the label they give to the general idea that represents the common interest doctrine, most recognize such exceptions. You should check your jurisdiction’s particular rules and nuances regarding the exceptions, and you should also act early to get an agreement in place, in order to ensure the protection of communications.
