Monday, July 21, 2014

A Common Interest, A Common Privilege

In a matter involving the application of the common interest rule in attorney-client privilege law, the New Jersey Supreme Court has held that

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. It offers all parties to the exchange the real possibility for better representation by making more information available to inform decision-making in anticipation of litigation. Although the Court recognizes that any privilege, including the attorney-client privilege and work-product protection, restricts the disclosure of information and may intrude on the fact-finding function of litigation, the Court finds that the rule recognized in LaPorta strikes an acceptable balance of competing interests. The Court, therefore, expressly adopts the common interest rule as articulated in LaPorta. 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 rule also encompasses 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. (pp. 33-37)

The protected attorney work product disclosed by Sufrin to the municipal attorney remained privileged pursuant to the common interest rule. Sufrin and Longport shared a common purpose at the time of the disclosure because Longport had defended many civil actions filed against it by O’Boyle and anticipated further litigation from O’Boyle, and Sufrin was attempting to defend a civil action commenced by O’Boyle arising out of one client’s official position and others’ participation in civic affairs. Sufrin also disclosed his work product in a manner calculated to preserve its confidentiality. There is no evidence that the municipal attorney shared the material with anyone else, including O’Boyle. Once the municipal attorney declined to enter a joint defense strategy, he returned the privileged material, thereby minimizing even an inadvertent disclosure. Finally, although privileges may be overcome by a showing of particularized need under the common law right of access, O’Boyle failed to demonstrate a particularized need for the privileged material supplied to the municipal attorney. (pp. 37-39)

The holding

...we expressly adopt the common interest rule as previously articulated in LaPorta, supra, 340 N.J. Super. at 254, 262-63. We also hold that Sufrin, who represented a former municipal official and private residents in litigation filed by O’Boyle, shared a common purpose with Longport at the time he disclosed work product to the municipal attorney. Therefore, the joint strategy memorandum, and the CDs containing documents obtained and produced by the private attorney were not government records subject to production in response to an OPRA request by O’Boyle. Finally, O’Boyle failed to articulate a particularized need as required by the common law right of access to obtain the work product of the private attorney.

The litigation involved access to public records. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2014/07/in-a-matter-involving-the-application-of-the-common-interest-doctrine-in-attorney-client-privilege-law-the-new-jersey-suprem.html

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