It is a very common practice for lawyers for co-accused or civil parties to enter into agreements that protect their communications. Agreements are statements of intent that disclosure is protected by the “doctrine of common interest,” which extends solicitor-client privilege to discussions with parties with a common interest. According to the doctrine, solicitor-client privilege is not waived if such communications are made between parties with a common legal interest. The safest way is to identify the generally accepted differences between the two and to take steps to put in place applicable safeguards for communication that will be subject to the privilege that will inevitably exceed that between the individual clients and their lawyers. For the common interest doctrine to apply, most district courts require (1) communications to have been made as part of a joint defence effort; (2) the statements were used to intensify efforts; and (3) the prerogative has not been abandoned.  For lawyers, this includes dealing with risks such as obligations to non-clients who are parties to the common defence treaty. It is recommended that any common defence agreement should include provisions that should not be used as a basis for attempting to disqualify another Council. The legal facts were that the interests of tenants and brokers were similar, but not identical, and that the common interest was largely commercial and not legal. The court concluded that it was not a sufficient “common interest” to simply share the desire to succeed in litigation. The courts are also distinguished by the need to harmonize the interests of the participants. For example, some courts found that interests that are not completely prejudicial triggered the privilege  some only needed a strong identity of interests, while others required identical interests.  Even though two parties have directly unfavourable interests in a case, the courts have extended the right to those parties where they share another common interest in a separate case. For example, communication was favoured for: common defence and common interest agreements can be effective instruments for promoting client interests and reducing costs.
The key is to do them properly so that they do not become the basis of litigation themselves. A lack of judicial instruction, which defines the more nuanced limits of teaching, can increase sleep in this area. For example, what is a “legal interest” as opposed to a commercial interest? How does a jurisdiction determine whether a legal interest is sufficiently “common” between the parties? Can communication between clients and clients be protected by the doctrine of the common interest in the presence of a lawyer, without the lawyer being actively counseled or involved? The jurisprudence on the doctrine of the common interest has not been able to keep up with the evolution of the way lawyers and their clients communicate. As a result, federal circuits differ in the way they decide broadly or tightly to interpret the doctrine. For this reason, it is particularly important for lawyers to understand the scope and applicability of the doctrine of common interest in order to obtain privileged communication. Otherwise, this may lead to the definitive disclosure of sensitive information to customers. After all, lawyers should always know the basic rules of solicitor-client privileges. Counsel should remind counsel in other parties to refrain from conduct that might otherwise waive the underlying solicitor-client privilege. Without this basic privilege, there can be no privilege of common interest. Therefore, lawyers should confirm that statements made under the Common Interest Agreement are eligible for solicitor-client privilege protection. In addition, lawyers should preserve the integrity of the privilege of common interest by reminding their own clients and representatives not to participate in conduct likely to waive privilege.