Joint Representations Can Spawn Complicated Waiver Issues

September 4, 2013

If adversity develops among former joint clients, any of the joint clients generally can obtain access to all of the joint communications and use them in the dispute. On the other hand, none of the joint clients can disclose such communications to outsiders without the former joint clients’ unanimous consent. These general principles can complicate situations when former joint clients become adversaries.

In Arkin Kaplan Rice LLP v. Kaplan, 967 N.Y.S.2d 63 (N.Y. App. Div. 2013), the court dealt with a lawsuit filed by several plaintiffs (including Lisa Solbakken) against a number of defendants – including some of her previous joint clients – and the lawyer who had represented all of them. The court first confirmed that the communications that had occurred during the previous joint representation “are not privileged within the context of Solbakken’s adverse litigation” against her former joint clients and their joint lawyer. Id. at 64. But the court then held that “those communications are privileged as against Solbakken’s co-plaintiffs,” who had not been previously represented by the same lawyer in the earlier joint representation. Id. Thus, “Solbakken cannot unilaterally waive [the privilege] on defendants’ behalf so as to benefit her coplaintiffs [sic].” Id.

The court did not explain how these two principles would apply. For instance, the court did not indicate whether Solbakken could disclose privileged communications from the earlier joint representation to the lawyer who was representing her and her fellow plaintiffs in the current litigation.