The attorney-client privilege resides in a shared relationship between a lawyer and each client. The privilege relates to correspondence about the engagement between the lawyer and each client; it also extends to communications between joint clients and their common lawyers. Individuals outside the joint delegation can receive privileged communications only if the privilege is waived by all joint clients in the engagement.
But the law, not cricket, is being debated, so there are exceptions to this general rule. The first exception states that, where such communications concern only the waiving client, one joint client can waive the right of his own communications with a joint attorney. This is just the implementation of the general principle that the protected status of his correspondence with his counsel may be waived by a client. Notably, the waiving client does not unilaterally waive the right as to any of the communications of the other joint clients or as to any of the communications of the waiving client that apply to other clients. In other words, a customer can only waive the right of communicating with himself or herself, not communicating with other consumers or with other customers.
The second exception relates to lawsuits involving consumers in a joint representation. All correspondence made in the course of the joint representation are discoverable under this’ adverse-litigation exception’ when former joint customers sue one another. This exemption also extends to lawsuits between the attorney who represented all the joint clients and one of the joint clients. A joint counsel may also not withhold confidential correspondence from the joint representation from one joint party, even though another joint client declines to agree to the disclosure. Allowing a joint lawyer to avoid correspondence from the joint representation from being released by the joint attorney risks collaboration between one client and the joint attorney. For example, if the joint attorney violated one joint client’s obligation but did not injure another joint client, and the client who was harmed sued the attorney, it would be unreasonable to allow the unharmed client to use the right to prohibit the injured client from accessing correspondence to prove his argument during the representation. Similarly, when mutual clients collectively sue their joint counsel, the “adverse-litigation exception” applies. In that case, in support of the allegations, the clients can not assert the right to stop the counsel from using communications made in the representation.
The rules regulating the right of the joint client are based on the presumption that joint clients recognize that all information in the commitment is to be revealed to all of them, documented in the Third Restatement of the Law Governing Lawyers. The presumption supports the idea that joint clients should not fairly expect knowledge from other joint clients to be held by the joint counsel. All of this appears to assume that joint customers share a complex interpretation of the privilege’s operation, an assumption that may not be compatible with truth. Alas, the Restatement authors’ conclusions often prove inconsistent with the positions taken by joint customers when they sue their joint lawyers. Clients seeking joint representation can be entirely naïve about the consequences of joint representation, rather than being knowledgeable users of legal services. Instead, to reduce expenses, they may simply be searching for joint representation. In a joint representation, confusion about how the attorney-client privilege works can lead to litigation in which the lawyer is a party, rather than a lawyer, which is never good.