Under the so-called common interest doctrine, communications between the lawyers for two separate parties may be shielded by the attorney-client privilege if the communications are made in connection with a matter of common interest. (The doctrine is more complicated than that, but this description should suffice for purposes of this piece.) The lines of the doctrine are not always easy to draw, but certain state statutes make clear that the doctrine extends to all communications whether made in connection with litigation or not, at least as long as the other elements are satisfied.
In Ambac Assurance Corporation v. Countrywide Home Loans, Inc., the New York Court of Appeals recently reached a very different result, reaffirming its long-standing rule that the common interest doctrine was unavailable unless the communications were in furtherance of a common legal interest in pending or reasonably anticipated litigation.
This should interest all commercial litigators for a number of reasons.
First, from time to time many of us either do business that touches on New York or choose New York law to govern agreements (including, perhaps, common interest agreements). Keep the Ambac decision in mind when doing so.
Second, although the majority in Ambac conceded that its position was inconsistent with many jurisdictions, it did assemble citations to a number of other courts that also confine the common interest doctrine to the litigation context. It is not correct, therefore, to view this as solely a “New York problem.”
Third, although it is possible that all the communications at issue in Ambac took place within the state of New York, it seems unlikely. Yet the New York Court of Appeals did not even bother to engage in a choice of law analysis. The lesson: If you find yourself in a court outside of your home forum, the local rule of privilege could apply regardless of where the communication took place.
There are other potential impediments to cloaking communications between attorneys for different parties that go beyond the scope of this piece. Suffice it to say that you should not rely on the future availability of the doctrine without undertaking a thoughtful analysis.
Keywords: litigation, business torts, common intrest doctrine, New York Court of Appeals