Divorce and the Common Interest Privilege

Say what?
Say what?

Privilege is one of the most important legal concepts that an attorney can be versed in. Inadvertently waiving the attorney/client privilege or the psychotherapist/patient privilege, for example, can have dire consequences for clients and attorneys alike. An interesting blog post by our esteemed colleagues in the Business Litigation and Employment Law groups got me (well, really Nancy) thinking about a lesser known privilege known as the common interest privilege and how same is relevant to divorce.

First, a little background on the Common Interest Privilege. According to the Restatement (Third) of the Law Governing Lawyers, a riveting legal treatise more commonly used to prop up a wobbly desk, the common interest privilege applies…

“[i]f two or more clients with a common interest in a litigated or non-litigated matter are represented by separate lawyers and they agree to exchange information concerning the matter, a communication of any such client that otherwise qualifies as privileged that relates to the matter is privileged as against third persons.”

Massachusetts has expressly adopted the Restatement definition of the common interest privilege noting that…

“[t]he common interest doctrine does not create a new or separate privilege, but prevents waiver of the attorney-client privilege when otherwise privileged communications are disclosed to and shared, in confidence, with an attorney for a third person having a common legal interest for the purpose of rendering legal advice to the client.”

This privilege is important in divorce cases because often times there are people other than the spouses that have a legal interest in a divorce. It could be a paramour, one or both sets of parents of the spouses, other relatives, friends, business partners, etc.  For example, where the division of a business is implicated in a divorce, attorneys for the business partners or the business itself may need to communicate in confidence. Being able to collaborate means it’s more likely to reach a settlement, as opposed to litigation. The need for communication among attorneys for the major players in a divorce case isoften critical, making the common interest privilege an invaluable tool for both attorneys and clients.

Massachusetts has taken a broad stance on the common interest privilege, holding that no writing memorializing the privilege is required and litigation in a Court does not have to be pending for the privilege to apply. Massachusetts’ broad recognition of the common interest privilege makes collaboration amongst third parties in a divorce case safer and more productive, but it is important to ensure that all of the requirements for the privilege to apply are in place.

Hope this provides a little more insight into a lesser known, but still incredibly important, privilege that applies in Massachusetts, and divorce cases in particular.

Take care!
Andrea