Recently, a state court has taken a restrictive interpretation of the common interest doctrine, calling into question the ability for separately represented clients to contractually dodge the typical waiver impact of disclosing privileged communications to each other, as stated in a fascinating article by McGuireWoods LLP available here.
The common interest doctrine is an useful, yet potentially treacherous, arrangement for waiver-avoidance. It allows attorneys and clients who share a common legal interest to communicate with each other without waiving any applicable attorney-client privilege or attorney work product protections. This mechanism proves vital for clients who need to discuss legal strategies without risking exposing their discussions to unsympathetic third parties.
However, the extent to which the common interest doctrine applies can vary significantly between federal and state courts. Some courts might opt for a broader interpretation, allowing the doctrine to apply outside of litigation – for instance, during the course of a business transaction, while others, like the state court in question, have opted for a more constrictive viewpoint, narrowing the situations in which the doctrine can apply.
Such divergence in interpretation creates a complex landscape for legal professionals to navigate. The necessity to carefully consider the context in which disclosures are being made and to advise clients accordingly has never been more paramount. Given the recent restrictive interpretation of this doctrine, legal professionals should exercise caution and stay abreast of the current developments in this area of the law.