Copyright © 2018, American Bar Association. All rights reserved. This information or parts of this information may not be copied, disseminated or downloaded in any way, or stored in an electronic database or consultation system, without the explicit written consent of the American Bar Association. The views expressed in this article are those of the author and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee or the author`s employer. 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. This exception also applies to disputes between one of the joint clients and the lawyer who represented all the common clients. Therefore, a common lawyer cannot deny a common client privileged communications from the common representation, even if another common client refuses to accept disclosure. If a common client is prevented from disclosing communications from joint representation, there is a risk of agreement between a client and the common counsel. For example, if the joint lawyer breached a duty to a common client but did not harm another common client, and the client who was aggrieved sued the lawyer, it would be unfair to allow the unscathed client to use the privilege to prevent the aggrieved client from receiving information during the performance to prove his case. Similarly, the “subsidiary action derogation” applies when joint clients jointly pursue their joint counsel. In this case, clients cannot invoke the prerogative to prevent counsel from using representational communications to defend claims. 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.