The rules on common client privilege are based on the assumption, recorded in the third restate of lawyers` law, that common clients understand that all information contained in the engagement is disclosed to all. This assumption reinforces the assumption that common clients cannot reasonably expect the common lawyer to retain information from other common clients. All of this seems to assume that common customers share a sophisticated understanding of the application of privilege, a presumption that may not be consistent with the fact. Unfortunately, the assumptions of the authors of the Restatement often prove incompatible with the positions of the common clients when pursuing their common lawyers. Instead of being demanding consumers of legal services, clients who want common representation can be totally naïve about the effects of common representation. Instead, they may simply have the objective of a common representation in order to avoid costs. Uncertainty about how solicitor-client privilege applies in a common representation can lead to litigation in which the lawyer is a party and not a lawyer, which is never good. Common commitments can be attractive. Clients like them because they can reduce costs, facilitate the continuation or defense of a business, and strengthen ties between partners, joint ventures or partners in companies. Lawyers love them because they appeal to clients, they bring a greater role in a case and simplify the prosecution or defense of a case.
But just as bears can find that the lure of a hive is associated with a price representing more than one customer in a commitment, can also sting. Lawyers must consider and address many issues before the start of representation, including the privileged status of communication with clients in the engagement. Exceptions to privilege in common representations But we discuss the law, not cricket, so there are exceptions to this general rule. The first exception states that a common client may waive the right to communicate with a common lawyer, provided that such communications concern only the client who has waived. This is only the application of the general principle that a client can renounce the privileged status of his communication with his lawyer. In particular, the renouncing customer cannot unilaterally waive the right of communication of other common customers or a communication of the customer giving up to other customers. In other words, a customer can only waive the right to communicate about himself, not the communications of other customers or other customers. Privilege in Common Representations Solicitor-client privilege exists between a lawyer and each client in common engagement. The privilege applies to the communication between the lawyer and each client with respect to engagement; it also applies to communication between common clients and their common lawyers.
Persons outside the common representation may only receive privileged communications if all participating clients renounce the privilege in their commitment. The second exception applies to disputes between clients within the common representation. Under this “subsidiary action exception,” all communications made under the joint representation are available when former co-clients continue to work on each other.