![]() More importantly for purposes of this article, courts have also recognized the “co-client” or “joint client” privilege, which extends the attorney-client privilege to include additional parties without the risk of waiver. 5Ĭo-client and joint defense/plaintiff privileges. 4 And when a third-party contractor is the “functional equivalent” of an employee, communications among an entity, the entity’s attorney, and the entity’s “functional” employee typically remain privileged. For example, when a third party is necessary to convey legal advice (such as an accountant helping to translate dense financial information for the benefit of the client, or a Russian translator communicating with a non-English-speaking client), many jurisdictions refuse to find that engaging in communications or sharing documents with such a third party results in waiver. Depending on the importance of the communication in question, such waiver can result in great harm to a case.īecause there can often be a need for lawyers to include outside individuals as part of their “team” for the purpose of providing the client the best and fullest representation, the law has created many exceptions to the rule that the sharing of an otherwise privileged communication can destroy the privilege. 3 The result of waiver is that the email is subject to discovery by adversaries and might be admissible at trial. ![]() ![]() For example, if a privileged email between an attorney and a client is later forwarded by either the client or the attorney to a third party, then any privilege is typically waived. Perhaps most frequently, the privilege can be waived if the communication is shared with a third party, i.e., someone other than the attorney and the client. 2Īlong with familiarity with the basic elements of the attorney-client privilege, readers also know that courts will find that the attorney-client privilege has been waived under many circumstances. 1 This privilege is widely regarded as the oldest and most venerable of all privileges, and courts respect the boundaries of the attorney-client privilege when it comes to discovery disputes. Readers of this article are surely familiar with the basic elements of the attorney-client privilege: confidential communications between an attorney and a client for the purpose of giving or receiving legal advice are generally privileged against discovery in litigation. As such, a quick refresher is in order.Īttorney-client privilege. Instead, the common interest privilege is basically an expanded version of the attorney-client privilege. In other words, the common interest privilege is not a stand-alone privilege wholly separate and apart from the attorney-client privilege. The common interest privilege is an extension of the attorney-client privilege. ![]() The History of the Common Interest Privilege This article will also touch on some practice pointers that might help attorneys safeguard the common interest privilege and avoid potential waiver. ![]() In doing so, this article will review some situations in which the common interest privilege is likely to arise, including some scenarios particularly pertinent to this audience, such as product defect litigation and insurance disputes. This article will examine the nuts and bolts of the common interest privilege. ![]()
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