Lately, I’ve had a number of cases where the lawyer for a co-defendant wants to cooperate. Because this usually involves sharing attorney-client privileged information, we agree that our discussions are covered by the “joint defense privilege,” and sometimes enter into a “joint defense agreement.”
Recent discussions in this area reminded me that I never mentioned the Massachusetts Supreme Judicial Court’s 2007 decision in Hanover Insurance Company v. Rapo, where the SJC, for the first time, gave broad approval to cooperation between attorneys whose clients share a common interest. The court held (or suggested) that the “common interest doctrine,” which enables joint defense agreements, covers not only co-defendants, but co-plaintiffs, nonparties to litigation, and a party and a nonparty. A shared interest agreement need not be in writing, and the clients need not have been aware of it or consented to it. The interests of the parties need not be identical, as long as they are similar.
Not an earthshaking decision, since many attorneys assumed this to be the law, but worth a mention, now that it clearly is the law in Massachusetts.