An Uncertain Privilege: Why the Common Interest Doctrine Does Not Work and How Uniformity Can Fix it
42 Pages Posted: 24 Jun 2010
Date Written: June 23, 2010
The common interest doctrine provides an exception to the general rule that a client waives the attorney-client privilege by communicating previously privileged information to a third party. The doctrine permits represented parties who share a common legal interest to exchange privileged information in a confidential manner for the purpose of obtaining legal advice without waiving the attorney-client privilege. The purpose of the doctrine, like that of the underlying attorney-client privilege, is two-fold – to encourage the free flow of information and to enhance the quality of legal advice. Courts reason that the privilege’s positive effect on the quality of legal advice benefits society by promoting justice.
Its divergent recognition and application across jurisdictions, however, have prevented the common interest doctrine from achieving the goals it shares with the attorney-client privilege. Only a handful of state and federal jurisdictions have affirmatively adopted the common interest doctrine. Moreover, those jurisdictions that have recognized the common interest doctrine have not applied it uniformly. This lack of uniformity results in uncertainty concerning the doctrine’s reach and function. Such uncertainty may discourage parties from sharing information with others similarly situated for fear of waiving the attorney-client privilege. As the United States Supreme Court noted, “An uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all.” Until parties can rely on a consistent, uniformly applied common interest doctrine, the goals of the attorney-client privilege will remain unfulfilled.
In this Article, I propose the adoption of a uniform common interest doctrine across jurisdictions. A well-defined doctrine would clarify current uncertainty concerning the application of the attorney-client privilege and encourage information-sharing without risking waiver of the privilege. Thus, a uniform common interest doctrine would promote the uninhibited communication of the quality of legal advice given. Therefore, a uniformly adopted and clearly defined common interest doctrine can achieve the currently unattainable goals of the attorney-client privilege.
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