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New Jersey Supreme Court Applies Broad Understanding of Common Interest Privilege

The New Jersey Supreme Court applied the "Common Interest" rule for first time since its establishment as the "LaPorta Rule" in a 2001 case. Arising from the attorney-client privilege, this rule provides "confidentiality protections for attorney-client communications and attorney work-product when they are shared with another lawyer to further a common interest, which doesn't have to be identical and may or may not involve the same case" (http://www.law360.com/privacy/articles/559221?utm_source=shared-articles&utm_medium=email&utm_campaign=shared-articles). The New Jersey Supreme Court applied an especially broad application of the rule, allowing lawyers to share information confidentially even if they are not part of the same case, if the issues are not exactly identical, or if there does not exist an actual threat of litigation.

In the case at hand, Mark O'Boyle brought claims against a New Jersey municipality's attorney for refusing to disclose information received from another attorney with a "commonality of purpose" (http://www.law360.com/privacy/articles/559221?utm_source=shared-articles&utm_medium=email&utm_campaign=shared-articles). The New Jersey Supreme Court rejected the claims in favor of its broad understanding of the common interest privilege. A broad application of the rule will protect parties from the fear that their adversaries will be able to gain access to the shared information. The Court believes that the rule will allow for greater information flow amongst attorneys and better client representation overall.

However, the rule must balance free information flow amongst attorneys with the possibility that it "may intrude on the fact-finding function of litigation." Additionally, according to Law Professor Katharine Traylor Schaffzin, the "Common Interest" rule has seen inconsistent application in many jurisdictions. This inconsistency actually restricts information flow because attorneys fear that courts will force them to share documents with adversaries. If not applied consistently, the rule may in fact lead to the opposite of its intended free-flow exchange (http://www.bu.edu/law/central/jd/organizations/journals/pilj/vol15no1/documents/15-1SchaffzinArticle.pdf).

The decision by the New Jersey Supreme Court is a victory for New Jersey attorneys as they can seemingly share information and be protected under the "Common Interest" privilege. This decision gives attorneys much needed clarity as to how the rule will be applied in the State of New Jersey.

If you have any questions regarding this subject or this posting, please contact James C. Shah ([email protected]) or Michael Ols ([email protected]). We can also be reached toll-free at (866) 540-5505.

Shepherd Finkelman Miller & Shah, LLP is a law firm with offices in California, Connecticut, Florida, New Jersey, New York, Pennsylvania and Wisconsin. SFMS also maintains an affiliate office in London, England and is an active member of Integrated Advisory Group (www.iaginternational.org), which provides the firm with the ability to provide our clients with access to excellent legal and accounting resources throughout the globe. For more information about our firm, please visit us at www.sfmslaw.com.

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