A recent opinion from the Supreme Court of New Jersey could have broad implications for protecting the confidentiality of information shared between attorneys for different clients with common interests. In O’Boyle v. Borough of Longport, 2014 WL 3557874 (N.J. July 21, 2014), the Supreme Court of New Jersey upheld the dismissal of a private citizen’s Open Public Records Act (“OPRA”) and common law right of access action. However, the Court’s opinion contains language regarding the common interest rule with possible beneficial implications for defense counsel.
In most cases, disclosure by an attorney of communications or work product to a third party functions as a waiver of the protection afforded to that communication or work product. However, there are circumstances when disclosure of work product to a third party is consistent with the confidentiality afforded to such work product, and therefore the protection is not waived by the disclosure. Id. at *9. Specifically, the Court noted that New Jersey applies the common interest doctrine in the context of sharing confidential attorney-client communications and work product with third parties, and applies the test articulated in LaPorta v. Gloucester County Bd. of Chosen Freeholders, 340 N.J. Super. 254 (App. Div. 2001). The Appellate Division in LaPorta concluded that the common interest exception may be asserted with respect to communications 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. 340 N.J. Super. at 262.
In O’Boyle, the Supreme Court noted that the LaPorta test applies in the context of sharing both confidential attorney-client communications and work product with third parties. 2014 WL 3557874, *10. However, although most jurisdictions recognize the common interest rule, the scope or extent of common interest is the subject of debate. Id. at *11-12. In New Jersey, parties need not share identical interests, and actual litigation need not have commenced. Id. at *12 (citations omitted). The common interest may arise in civil or criminal proceedings, and the communication need not be confined to counsel; communications between counsel for a party and a representative of another party are also protected. Id. (citations omitted).
The Court declined to modify the LaPorta rule, finding that the common interest rule is designed to permit the free flow of information among counsel who represent clients with a common purpose. Id. at *14. The rule offers better representation for all parties to the exchange by increasing the information available to counsel to craft their positions and inform their decisions. Id. Although the Court recognized that privileges, including the attorney-client privilege and work product protections, restrict the disclosure of information and can intrude on the fact-finding function of litigation, the LaPorta rule “strikes an acceptable balance of these competing interests.” Id. Therefore, the Court expressly adopted the common interest rule as articulated in LaPorta, and also noted that the common purpose extends to the sharing of trial preparation efforts between attorneys, and that such attorneys need not be involved in the same litigated matter or anticipated matter. Id. at *15 (citation omitted). Further, the Court explained that the common interest rule “should be broad enough to encompass 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 will participate in a common interest arrangement.” Id.
Though the decision in O’Boyle occurred in the context of an OPRA claim, the Court’s express adoption of the LaPorta rule regarding common interest could have wider implications. The opinion makes clear that protected disclosures can occur before litigation starts, that a common purpose, rather than an identical interest, is sufficient, and that the attorneys exchanging information need not be involved in the same matter. The decision will provide parties with greater clarity regarding how New Jersey’s courts will interpret the common interest rule, and should assist counsel in sharing information with commonly interested parties, even prior to litigation or entrance into formal joint defense arrangements. Attorneys should still be cautious in such exchanges; they should ensure that their actions reflect the privileged nature of the communications and that they take appropriate measures to prevent disclosure to an adversary. Id. at *14. Although the true impact of this decision remains to be seen, counsel seeking to develop joint litigation strategies can make use of the protections afforded by the common interest rule in New Jersey in order to present a more unified defense and a stronger representation for clients.