End the Experiment: The Attorney-Client Privilege Should Not Protect Communications in the Allied Lawyer Setting
In recent years, courts have seen an explosion of claims that communications need not be disclosed because they enjoy the protection of something often referred to as the “common interest doctrine.” These claims—claims of attorney–client privilege—occur in two situations: the joint client setting and the allied lawyer setting. In a joint client situation, an attorney represents two or more clients on a matter with all parties working together on the joint endeavor. In an allied lawyer situation, several entities or individuals work together on a matter of common interest but the parties have separate lawyers.
This Article argues, uncontroversially, that the privilege should continue to apply to communications in the joint client situation. In contrast, this Article argues, quite controversially, that communications in the allied lawyer setting should not enjoy the protection of the privilege. Applying the privilege to the joint client setting is simply applying the privilege to communications between an attorney and that attorney’s clients—clients who have engaged the attorney to represent them jointly. Applying the privilege furthers the rationale of the privilege. When the privilege is applied in the allied lawyer setting, however, the privilege protects communications that are not between an attorney and that attorney’s client. The application does not further the privilege’s rationale. In addition, the confusion surrounding the application of the privilege in this setting has eviscerated the certainty necessary for the privilege to accomplish any goal. Any possible benefit to the application is outweighed by the damage done to the truth-finding mission of the justice system. Applying the privilege in the allied lawyer setting is a practice based on a flawed precedent from 1871 and followed by courts only in recent decades. It is a practice that should not continue.