In an issue of first impression, the New Jersey Supreme Court has formally adopted confidentiality protections for aligned parties that share common interests.
This decision formalizes what was an uncertain area of law and will provide practitioners with some guidelines for properly using the common interest doctrine.
The New Jersey Supreme Court decision is generally consistent with the law in other states.
The New Jersey Supreme Court recently issued an opinion that, for the first time in New Jersey, expressly adopted the "common interest doctrine." The July 21, 2014, opinion provided confidentiality protections for attorney-client communications and attorney work product shared among and between other attorneys and parties who have a common interest. While some states, such as Texas and Wisconsin, have actually codified the doctrine, other states have developed the privilege exception through case law. Although the nuances of the common interest doctrine vary by jurisdiction, the recognition that the exception exists is reflective of a national trend and consistent with other decisions on the issue. The case in question arose out of two separate lawsuits filed by Longport, N.J., resident, Martin O'Boyle. O'Boyle filed these two suits against a member of Longport's zoning and planning board and two Longport residents. The private attorney that represented those three defendants suggested to Longport's attorney that the two of them cooperate in the defense of current and anticipated litigation by O'Boyle, who the court noted had "taken an active interest in the affairs of the municipality," and had "filed several complaints against [Longport] and its officials regarding governance of [Longport]." To facilitate that cooperation, the private attorney prepared a joint strategy memorandum and a collection of documents contained on a compact disc. The private attorney provided that material to the city's attorney, who eventually returned that material to the private attorney.
Longport Refuses to Release Documents Despite an Open Public Records Act Request
O'Boyle later submitted a request pursuant to the Open Public Records Act (OPRA), which encompassed the documents exchanged by the city attorney and the private attorney. Longport refused to provide the documents to O'Boyle, asserting that those documents were privileged. In this matter of first impression, the New Jersey Supreme Court adopted the common interest rule, holding that work product and attorney-client privileged information that is shared with a third party in a manner calculated to preserve confidentiality, in anticipation of litigation, and in furtherance of a common purpose retained its privileged nature and was, therefore, not subject to production under OPRA. Noting that the common interest doctrine is designed to permit the free flow of information between or among counsel who represent clients with a commonality of purpose, the court concluded that the common interest rules apply to communications among and between attorneys for different parties if the disclosures are made in connection with actual or anticipated litigation, for the purpose of furthering the common interest, and where the disclosure is made in such a way that it preserves the confidentiality of the disclosed material and in a way that prevents disclosure to adverse parties. The court pointed out that the common interest doctrine:
... offers all parties to the exchange the real possibility for better representation by making more information available to craft a position and inform decision-making in anticipation of or in the course of litigation.
The court also acknowledged that the scope and extent of the common interest doctrine has been the subject of considerable debate, while providing some additional guidelines for New Jersey practitioners. First, the court stated that it is not necessary for each party to share identical interests. Also, it is not necessary that actual litigation has commenced – it is enough that litigation is contemplated. The court noted that the common interest is equally applicable to criminal and civil litigation, and further stated that the communications do not have to be specifically confined to counsel. The court stated that communications between counsel for a party and a representative of another party with a common interest are also protected. The court further explained that "common purpose" extends to the sharing of trial preparation efforts against a common adversary, but also stated that the attorneys sharing information need not be involved in the same litigated matter or anticipated matter.
Significance of the Decision
Joint defense agreements are well known to criminal defense attorneys and in formal litigation, but the tool is limited. This decision makes clear that the same principles can and should protect common interest communications in the absence of a formal joint defense agreement. This opinion is generally consistent with those in other states and reflective of the trend that recognizes the doctrine as an exception to privilege.
In order to protect privileged communications under this doctrine care should be taken to define the subject matter of common purpose and the scope and purpose of the common interest and the extent to which one party retains the right to waive the privilege or use the information adverse to the other party should their interest diverge. From a risk management perspective, this is also an important time for lawyers to be clear about who is and is not the client so that the lawyer is not later the subject of disqualification efforts if the aligned parties become adverse.