Although most people would prefer not to be faced with the threat of anticipated or actual litigation, the state’s highest court recently ruled that such threat is necessary before a party may share attorney-client privileged information with another party with whom it shares a common interest. On June 9, 2016, the New York Court of Appeals ruled that under the common interest doctrine, privileged communication must relate to litigation, either pending or anticipated, before it can be shared without vitiating the attorney-client privilege.1
Typically, communications between an attorney and client made in the presence of or later revealed to third parties are not protected by the attorney-client privilege. Under the common interest exception, however, an attorney-client communication that is revealed to a third party maintains its privileged status if the third party shares a common legal interest with the client who made the communication and the communication is in furtherance of that common legal interest. The Court of Appeals confirmed that there is a third element to the exception in New York—a litigation requirement.
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