The common interest doctrine protects a narrow range of communications among separately represented clients working toward a common legal goal during or in anticipation of litigation. It is fundamentally different from a joint representation, in which a single lawyer represents multiple clients on the same matter. A recent decision explored this difference, and highlighted an important advantage of a common interest arrangement over a joint representation.
In Crispin Co. v. Petrotub-S.A., No. CIV-05-159-C, 2006 U.S. Dist. LEXIS 60639 (W.D. Okla. Aug. 24, 2006), two common interest agreement participants had a falling out and ended up as litigation adversaries. If this had occurred between jointly represented clients, either client would have had access to all communications that their joint lawyer had with either of them about the matter on which the lawyer represented both of them. In contrast, the court noted that in a common interest arrangement each client can have confidential communications with her own lawyer, and decide what communications to share with the other common interest participant and its lawyer. Thus, the former ally now litigating against the other “should be permitted to redact information that reveals confidential communications between itself and [its separate] counsel that was not shared with Plaintiff (or its counsel) in the course of their joint defense in the prior suits.” Id. at *7.
The good news about common interest arrangements is that the participants choose what information to share with other participants. Even if adversity later develops between them, the participants can continue to shield communications with their own separate lawyer that was not shared with the other participant.
See Courts Address “Common Interest” Nuances: Part I (11/15/2006).