In an unanimous decision, the New Jersey Supreme Court has broadly applied the common interest privilege, protecting confidential communications between attorneys whose separate clients share a common interest.

Plaintiff Martin O’Boyle had some ongoing disputes with the municipality, apparently beginning with a zoning violation in 2007.  He initiated this lawsuit, O’Boyle v. Borough of Longport, against the borough, its clerk, and the custodian of records and demanded certain materials exchanged and prepared by attorneys.  Specifically, the requested materials were sent between the borough’s attorney and David Sufrin, private counsel for a former planning and zoning board member and other Longport residents that O’Boyle had also sued. In anticipation of the multiple suits filed by O’Boyle, Sufrin and the borough’s attorney created a joint strategy memorandum and Sufrin shared relevant documents in an effort to develop a cooperative defense for their separate clients. Upon discovering the existence of the materials, O’Boyle claimed that he was entitled to such documents under the New Jersey Open Public Records Act and the common-law right of access.

Despite O’Boyle’s claims, the trial court held that the documents were not public records and thus not subject to required production under the aforementioned laws. On appeal, the Appellate Division affirmed the court’s decision but identified the materials in question as public records protected from production as an attorney’s privileged work product. While Sufrin shared the materials with another attorney, the court determined that Sufrin’s disclosure to a third party did not waive attorney-client privilege. Alternatively, the court pointed to the common interest between the attorneys’ respective clients as indicative that Sufrin’s disclosure remained protected by privilege.

Upon review, the New Jersey Supreme Court went even further in applying the common interest rule, expressly adopting the concept as described in the 2001 appellate decision, LaPorta v. Gloucester County Board of Chosen Freeholders. The Court held that Sufrin’s work product remained privileged as its disclosure to the borough’s attorney occurred in a manner calculated to preserve the materials’ confidentiality, in anticipation of litigation, and in furtherance of a common purpose.

The court’s extended application of this privilege will enable attorneys to develop common defenses and joint strategies when their respective clients have aligned interests. Whether clients are in the wake of litigation or face anticipated legal action, the O’Boyle holding permits attorneys to disclose work product and discuss mutually beneficial strategies without the fear of waiving privilege.

Thanks to Nicole Pedi for her contribution to this post.  For more information, please write to Mike Bono.