Common Interest Doctrine
by Jennifer K. Kenchel
In Texas, the common interest doctrine embodied in Rule 503(b)(1)(C) of the Texas Rules of Evidence creates a privilege for a client to prevent the disclosure of confidential communications made for the purpose of facilitating the rendering of professional legal services when such communications are made by the client’s lawyer to a lawyer representing another party in a pending action and concerning a matter of common interest. It is not an independent privilege, but rather an exception to the general rule that no attorney-client privilege attaches to communications that are made in the presence of or disclosed to a third party.
While the common interest doctrine is sometimes referred to as the “joint client” privilege, the “joint defense” privilege and the “common interest” privilege, each involve distinct doctrines that serve different purposes. See In re XL Specialty Insurance Company and Cambridge Integrated Services Group, Inc., 2012 WL 2476851 (Tex. June 29, 2012).
Finding the term “allied litigant” privilege more appropriate a term for the “common interest” privilege, the Texas Supreme Court in XL Specialty reiterated that the “common interest” privilege only applies where there is active, ongoing litigation. This is also known as the “pending action” requirement. Moreover, the common interest privilege does not exist just for co-defendants, but applies to any other party in the pending litigation.
Because the “common interest” privilege protects communications made between a client or the client’s lawyer to another party’s lawyer or representative of the lawyer, the “common interest” privilege only applies when the parties have separate counsel and does not extend to communications made directly between the parties themselves.Applying the foregoing principles, the Texas Supreme Court in XL Specialty found the “common interest” privilege did not apply to communications between a worker’s compensation insurer’s attorney and the insured-employer in an administrative proceeding regarding an injured employee’s claim for benefits.
Importantly, the “common interest” doctrine requires that the parties have a common legal interest. There must be a need for a common defense rather than merely a common problem. The underlying rationale of the privilege is that when parties must work together by necessity, a privilege must be afforded to their joint attorney client communication and work product or else those protections would be hollow. However, the privilege must be construed narrowly to cover only the necessary consultation by legal advisors and clients. So the privilege does not apply to joint consultations where there is no common interest to be promoted such as when the parties meet to discuss claims against each other. Adverse parties cannot create a “common interest” just by unilaterally declaring it so. Thus, the mere existence of a confidentiality agreement between parties is not, in itself, sufficient to protect joint communications from discovery.
Examples of parties with a common legal interest include indemnitor/indemnitee, vicarious liability of employer for employee or alleged conspirators in an antitrust case. In those situations, the parties have a common interest because the liability of one may, by operation of law, be imputed to another. They must work together, and shared information must be protected or the attorney-client privilege and work product doctrine would be illusory. Parties do not have a “common interest” just because they have (or have created) a common adversary. For example, there is no common interest just because the defendants are all charged with violating the same patent. But if the plaintiffs allege a conspiracy to violate the patent, then the defendants might have had an identical legal interest in establishing that no such conspiracy took place.
In sum, the “common interest” privilege protects confidential communications made between a client or a representative of the client or the client’s lawyer to a lawyer or a representative of a lawyer representing another party in the litigation for the purpose of facilitating the rendition of professional legal services provided that: (1) the parties exchanging the privileged material share a common legal interest, as opposed to a mere business interest; (2) the documents and communications are shared in furtherance of the common legal interest; (3) the sharing of the privileged information takes place during pending litigation; and (4) the parties reasonably expect that the shared documents and communications will remain confidential.
JenniferKenchel is a member at Cozen O'Connor. She can be reached at firstname.lastname@example.org.