Common Interest Doctrine Gets Official Nod in N.J. Case on Sharing Protected Materials

By Joan C. Rogers  

July 25 — New Jersey officially recognized the common interest doctrine July 21. The state supreme court's decision clarifies its application to attorney-client communications and attorney work product shared with lawyers representing separate clients—such as declaring that the clients' interests need not be identical, and that they need not even be involved in the same lawsuit.

The appeal dealt with a party's public records request for work product materials that a private practitioner shared with a municipal attorney. The court expressly adopted the “common interest rule” as articulated in LaPorta v. Gloucester Cnty. Bd. of Chosen Freeholders, 774 A.2d 545 (N.J. Super. Ct. App. Div. 2001).

In an opinion by Judge Mary Catherine Cuff, temporarily assigned, the supreme court rejected arguments from the parties and numerous amici curiae to either broaden, narrow or restate the rule.

What Wasn't Said

In comments to Bloomberg BNA, Thomas E. Spahn of McGuireWoods LLP in McLean, Va. said the opinion confirms that New Jersey recognizes the common interest doctrine and provides a vague description of it. But Spahn said the court did not carefully define what sort of “anticipation of litigation” is required before the doctrine applies.

He also said the court wasn't forceful enough in explaining that disclosure of work product to friendly third parties does not cause a waiver, even in circumstances that do not satisfy the common interest doctrine's standards. Spahn is the author of The Attorney-Client Privilege and the Work Product Doctrine: A Practitioner's Guide (3d ed. 2013).

Courts Don't Speak With One Voice When It Comes to Common Interest Doctrine

In O'Boyle v. Borough of Longport, the New Jersey Supreme Court noted that in other states, “courts vary in their analyses of the common interest rule, resulting in less certainty concerning its application.”

“Far less than a majority of state and federal courts have affirmatively adopted the common interest rule and those that have done so have not applied it uniformly,” the court said, citing Katharine T. Schaffzin, An Uncertain Privilege: Why the Common Interest Doctrine Does Not Work and How Uniformity Can Fix It, 15 B.U. Pub. Int. L.J. 49, 52-53 (2005).

One key area of disagreement about the doctrine is whether identity of interests is required. Some courts have held or stated that the interests of the parties must be completely congruent or identical for a common legal interest to exist, the court said, citing SCM Corp. v. Xerox Corp., 70 F.R.D. 508 (D. Conn. 1976), Niagara Mohawk Power Corp. v. Megan-Racine Assocs., Inc. (In re Megan-Racine Assocs.), 189 B.R. 562 (Bankr. N.D.N.Y. 1995), United States ex rel. [Redacted] v. [Redacted], 209 F.R.D. 475 (D. Utah 2001), and Duplan Corp. v. Deering Milliken, Inc., 397 F. Supp. 1146 (D.S.C. 1974).

Another area of disagreement is whether actual litigation, or at least a threat of litigation, is necessary for the doctrine to apply. E.g., In re Megan-Racine Assocs., 189 B.R. at 573 (finding common legal interest only where there is pending or reasonably anticipated litigation).

Other jurisdictions diverge on whether the common interest doctrine protects client-to-client communications, the court said, comparing Hunydee v. United States, 355 F.2d 183 (9th Cir. 1965), United States v. Gotti, 771 F. Supp. 535 (E.D.N.Y. 1991), and In re Grand Jury Subpoena Duces Tecum Dated Nov. 16, 1974, 406 F. Supp. 381 (S.D.N.Y. 1975).

For in-depth discussion of the differences from state to state, see Thomas E. Spahn's series on the common interest doctrine: “The Joint Defense/Common Interest Doctrine: Part I,” 29 Law. Man. Prof. Conduct 494; “Part II: Necessity of Litigation or Anticipated Litigation,” 29 Law. Man. Prof. Conduct 527; “Part III: Forming a Valid Agreement,” 29 Law. Man. Prof. Conduct 562; “The Joint Defense/Common Interest Doctrine, Part IV,” 29 Law. Man. Prof. Conduct 600.

When Doctrine Prevents Waiver

The court described the “common interest rule” as an exception to waiver of confidential attorney-client communications or work product due to disclosure to third parties.

“The common interest rule is designed to permit the free flow of information between or among counsel who represent clients with a commonality of purpose,” the court stated. “It offers all parties to the exchange the real possibility for better representation by making more information available to craft a position and inform decision-making in anticipation of or in the course of litigation,” Cuff said.

Cuff said the exception applies to communications among attorneys for different parties if the disclosure is made in connection with actual or anticipated litigation for the purpose of furthering a common interest, and the disclosure is made in a manner to preserve the confidentiality of the disclosed material and to prevent disclosure to adverse parties. The court also stated:

  •  The disclosure may occur prior to the commencement of litigation.
  •  Communications between counsel for one party and a representative of another party with a common interest will preserve the privileged nature of the disclosed information.
  •  The clients' common interest need not be identical; a common purpose will suffice. Common purpose extends to sharing of trial preparation efforts between attorneys against a common adversary.
  •  The attorneys need not be involved in the same litigated matter or anticipated matter.
  •  The common interest rule “should be broad enough to encompass the situation in which certain disclosures of privileged material are made to another attorney who shares a common purpose, for the limited purpose of considering whether he and his client should participate in a common interest arrangement.”
  • Work Product Protection Slighted?

    Spahn said he was not sure why the court even had to address the formal common interest doctrine in this appeal. Perhaps the court was looking for a chance to endorse the concept, he suggested.

    The work product doctrine provides a robust protection that survives disclosure to friendly third parties, Spahn stated. Other courts, he said, justifiably decline to address the common interest doctrine if the court can rely on the work product doctrine's protection to find that disclosure did not waive that separate protection.

    Spahn also said he wished the court had emphasized the concept that a common interest arrangement is only a small subset of contexts in which disclosing work product will not waive that protection.

    The court merely explains at one point, he noted, that the disclosure of work product under a common interest doctrine “is one” of the circumstances in which disclosure to third parties does not waive that separate protection.

    “I worry that some of the general statements [in the opinion] might lead people to think that they will be waiving work product protection if they disclose work product to third parties that do not meet the pretty exacting common interest doctrine standards,” he said.

    Some courts state or imply that common interest arrangements are required to avoid waiving work product protection, but that is not correct, Spahn said.

    It is a great irony, Spahn added, that in most courts the common interest doctrine becomes available only when the participants anticipate litigation, at which time it is unnecessary.

    “By that time, nearly everything the participants will want to share deserves the separate work product protection, and can be safely disclosed without a common interest agreement and without meeting the common interest doctrine standards,” he stated.

    Spahn said the opinion praises the formulation of the common interest doctrine in the Restatement (Third) of the Law Governing Lawyers (2000), but apparently does not adopt it.

    As the court explained, the Restatement recognizes common interest doctrine protection even in a “non-litigated matter.” Unlike the Third and Seventh circuits, New Jersey does not go that far, Spahn said.

    Common Interest Rule Applies Here

    In this case, the court held that under the common interest rule a private practitioner's attorney work product remained protected from discovery despite its disclosure to a municipal attorney because the materials were shared in a manner calculated to preserve their confidentiality, in anticipation of litigation and in furtherance of a common purpose.

    The lawyers had a common purpose to defeat legal challenges from a citizen who did not agree with the way in which municipal officials discharged their duties, the court found. The municipal attorney had defended a borough against several civil actions filed by the individual, and the other lawyer was defending a civil suit filed by the same person against a former municipal official and two municipal residents who participated in civic affairs.

    The court also found that the private lawyer's work product was disclosed to the municipal lawyer in a manner calculated to preserve its confidentiality. Once the municipal attorney declined to enter into a common defense strategy, he returned the privileged material, the court noted.

    Jonathan R. O'Boyle of Johnstown, Pa., and Walter M. Luers, Clinton, N.J., argued for Martin O'Boyle. Gene R. Mariano of Parker McCay, Mount Laurel, N.J., argued for the Borough of Longport.

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