As a starting point, many courts distinguish the common law from the common interest and the common interest and determine that the former is narrow and the result of actual litigation, while the privilege of the common interest is broader and there is no need for litigation. Many other courts use almost interchangeable terms, with no reasonable distinction between the two. Commercial transactions, disputes and disputes often involve several clients with concerted interests, but with different lawyers. Clients and their advisors often want to communicate with other clients and consultants without risking renouncing existing privileges or immunities. Clients and legal advisers can benefit from the options developed by the courts, including through the common defence or the common interest. If left uncorrected, these differences can jeopardize all parties to the common defence agreement. An important provision of any common defence agreement is therefore to deal precisely with what happens when a party decides to denounce or abandon it. DR retained a law firm that conducted a mediated investigation into the case. The investigative firm has prepared a report, and DR has released the report to the U.S. Attorney`s Office “in an attempt that this office initiates a criminal prosecution” of the two former employees. Since an unspoken relationship between counsel and client is generally determined on the basis of the reasonable perspective of the potential client, a well-written common defence agreement can confirm that the parties accept that there was no solicitor-client relationship with co-parties for any purpose. Should you disclose the investigator`s report to the U.S. Attorney`s Office to support the district attorney`s office? Would this limited disclosure result in a waiver of privileges in the parallel civil proceedings? Is there not some kind of doctrine of sharing privileges, such as a so-called privilege of collective prosecution, or even the doctrine of common interest that would prevent the relinquishing privileges? Other jurisdictions have interpreted a common interest more, but courts still find that the interests of the joint parties are not sufficiently “common” or “common” to recognize a common defence agreement.
The best practice is to articulate common legal interests, including positions, defences and potential liabilities. For lawyers, this includes dealing with risks such as obligations to non-clients who are parties to the joint defence contract. It is recommended that any common defence agreement should include provisions that should not be used as a basis for attempting to disqualify another Council. The termination is important for the parties to fully understand when the common interest privilege ends and what happens when it occurs. Provisions confirming lawyers` obligations or absence are again necessary to avoid unnecessary litigation, including costly disqualification claims. Common defence and common interest agreements can be effective instruments to promote client interests and reduce costs. The key is to do them properly so that they do not become the basis of litigation themselves. When reviewing the validity of a common defence agreement, courts generally focus on whether the interests of the parties are actually coordinated. For example, in a dispute with the Post-9/11 World Trade Center, the District Court for the Southern New York Region refused to recognize the common interest privilege invoked by the WTC leaseholders and the insurance broker`s staff who had obtained coverage for the WTC.