Henry Ford once said, “Coming together is a beginning, keeping together is progress, working together is success.” In a decision handed down by the New Jersey Supreme Court on July 21, 2014, the Court reminded us of importance of teamwork in concluding that communications between attorneys representing different clients can be protected by the attorney-client privilege and work-product doctrine if those attorneys are working toward a common interest. O’Boyle v Borough of Longport, Docket No.: A-16-12 (July 21, 2014).*
In so ruling, the New Jersey Supreme expressly adopted the common interest rule as articulated in LaPorta v. Gloucester County Board of Chosen Freeholders, 340 N.J. Super. 254 (App. Div. 2001).
The salient facts are as follows. In 2008 and 2009, O’Boyle, a resident of Longport, New Jersey, filed two separate lawsuits against the town’s former planning and zoning board members. The attorney representing the three defendants offered to work together with the town’s attorney not only to defend O’Boyle’s lawsuit but other expected future litigation. The defendants’ private counsel prepared several documents to this end and sent them to the town’s attorney. At a later point the town returned these documents to the private attorney.
Shortly afterwards, O’Boyle filed a request for public records pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, asking for the documents that were exchanged between the lawyers. The town objected by citing legal privilege. O’Boyle then filed suit against the town demanding production of the documents. The trial court dismissed the case with prejudice, finding that the documents were not public record and therefore not subject to the OPRA request. On appeal, the Appellate Division assumed the withheld documents were public record. However, the Appellate Division concluded that the documents constituted work product of the private attorney and thus were not subject to the OPRA request.
O’Boyle appealed to the New Jersey Supreme Court, which affirmed the Appellate Division’s decision. The Court remarked about that this case presented the intersection of two well-recognized public policies; namely, (i) citizen’s rights to access information to understand and evaluate the actions of a public entity, and (ii) the need for an attorney and his client to communicate in confidence and the closely related need for an attorney to keep work performed for a client from disclosure to an adversary – recognized by the attorney-client privilege, and work-product doctrine
The New Jersey Supreme Court clarified that the attorney-client privilege protects only those communications expected or intended to be confidential. However, the privilege is not limited to legal advice but also extends to consultations with third parties whose presence and advice are necessary to the legal representation, the Court remarked. Also, the privilege survives the termination of the attorney-client relationship.
The Court then noted that “[O]ver the years, various relationships have formed to permit an exchange of confidential attorney-client communications beyond the narrow confines of the attorney and client and a third party retained to assist the defense while preserving the privileged character of the disclosed communication.” Id. * 17. The Court then cited the example of a joint defense agreement between or among individuals subject to a criminal investigation or indictment as the precursor to the “common interest rule.” In other words, the Court recognized that parties who share a common interest can claim attorney-client privilege or work-product privilege with regard to communications shared between or among them. Thus, the Court held that the attorney-client privilege shields the disclosure of documents otherwise discoverable under OPRA, and that the privilege is not waived if the communication is shared with an “interrelated” non-client entity having a “common interest.”
The work-product doctrine prohibits disclosure of an attorney’s trial strategies. New Jersey Court Rule 4:10-2 incorporates the work-product doctrine by prohibiting the “disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative party of the litigation.” Id.
In LaPorta v. Gloucester County Board of Chosen Freeholders, 340 N.J. Super. 254 (App. Div. 2001), the Appellate Division applied the common interest rule in the work-product context, concluding that that the rule may extend the protection of work product shared “among counsel for different parties if (1) the disclosure is made due to actual or anticipated litigation; (2) for the purposes of furthering a common interest; and (3) the disclosure is made in a manner not inconsistent with maintaining confidentiality against adverse parties.” Id. at 262.
Common Interest Rule
The common interest rule is designed to permit the free flow of information between or among counsel who represent clients with a commonality of purpose. It offers all parties to the exchange the real possibility for better representation by making more information available to craft a position and inform decision-making in anticipation of or in the course of litigation, the Court further explained.
The Court explained that the common interest rule extends to sharing of trial preparation efforts between attorneys against a common adversary. The attorneys need not be involved in the same litigated matter or anticipated matter. The rule also encompasses the situation in which certain disclosures of privileged material are made to another attorney who shares a common purpose, for the limited purpose of considering whether he and his client should participate in a common interest arrangement. (pp. 33-37).
The case caught the attention of several legal organizations such as the New Jersey State Bar Association, The Voice of the Defense Bar, and Association of Criminal Defense Lawyers of New Jersey, among others, who filed friend of the court briefs.
*I would like to recognize the efforts of Joshua Marks, a student internet at LoFaro & Reiser, LLP, who contributed to this post.