The court also found that the “common client” privilege rule did not apply because no argument or evidence had been presented that XL`s lawyers also represented Cintas. The Court did not exclude the possibility that, in certain circumstances, the same lawyer could represent both the insured and the insurer. The Court also held that there may be situations where an insurer may be a representative of a person insured under Rule 503, but this argument has not been advanced or proven in this case. Finally, the Court also concluded that the other provisions of Rule 503(b)(1)(A), (B), (D) and E were not applicable to the protection of the communications at issue. Texas Rule of Evidence 503 specifically defines privilege-protected communications. Rule 503b protects not only the communication between the lawyer and the client, but also the communication between the representatives. The Court`s opinion focused on rule 503 (b) (1) (C), which concerns the communication “of the client or a representative of the client or of the client`s lawyer or a representative of the lawyer to a lawyer or representative of a lawyer representing another party in a pending action and concerning a matter of common interest”. Protect. The Court noted that this privilege was variously described as a privilege of the “common client”, the “common defence” or the “common interest”. While the Court recognized that the courts sometimes use these terms interchangeably, it concluded that they were different doctrines serving different purposes and, importantly, none of them accurately described the privilege at issue in this case. There will be cases where a co-defendant attempts to monopolize the direction of legal strategy as part of a JDA just for his own benefit.
Collaborating defense attorneys should be tired of these situations, as a court may determine that there is no JDA in such circumstances. The Texas version of solicitor-client privilege is codified in Texas Rule of Evidence 503. Rule 503 generally excludes the disclosure of confidential communications between the client and legal counsel in order to facilitate legal services. TRE 503(b). While this is the oldest privilege for confidential communications known at common law, it is not absolute. See In re XL Specialty Ins. Co., 373 p.w.3d 46 (Tex. 2011). What is truly remarkable about XL Specialty is the discussion and position of the Texas Supreme Court regarding the requirements of the Allied Litigant Doctrine and the discussion of common client privilege, common defense, and the doctrine of common interest in Texas.
The Texas Supreme Court recently ruled in a bad faith case that communication between an insurer`s attorney and the insured is not protected from discovery by evidentiary privilege. And in doing so, the court distinguished and offered guidance on solicitor-client privilege and its interaction with the doctrine of the allied parties to the dispute, the doctrine of the common interest, the common client privilege and the insurer`s privilege. Not only does this decision apply to lien disputes in disputes in Texas state courts, but the decision could also apply to federal civil cases governed by Texas substantive law. This decision may also have consequences beyond the field of insurance against accidents at work. For example, because the Court clarified that the Texas Rule of Evidence limits the application of a “common interest” privilege to communications related to an ongoing litigation, attorneys representing different parties with common or common interests in cases cannot rely on a “common interest” privilege under Texas law to facilitate sensitive communications between their attorneys outside of the Context of the process. In addition, a “common interest” privilege may not protect communications between counsel for different parties in relation to an investigation that is not related to an “ongoing lawsuit.” In addition, this decision raises privilege concerns for communications made by an insured`s lawyer to the insurer in other insurance-related situations where the insurer is not a party to an ongoing dispute. If a party to a joint defense agreement decides to cooperate with the government, the ability to disclose confidential information also threatens the rights of other defendants in the Sixth Amendment. (Quotes omitted). Federal courts have an independent interest in ensuring that criminal proceedings are conducted in accordance with the ethical standards of the profession and that court proceedings appear fair to all who comply with them. Courts also have an independent interest in protecting a fair verdict from trial tactics that may be aimed at creating problems on appeal. Given the high risk of wrongdoing, courts have full authority to investigate joint defence agreements before problems arise.  There is no rule requiring parties to a JDA to recall their agreement in writing; In fact, many JDAs are oral.
However, participants who insist on verbal arrangements should be aware of the risk involved. Namely, there is no risk that the court will decide on a JDA. Weissman invoked joint defense privilege to ensure that his own confession was not used against him. To prove his right to privilege, Weissman`s lawyer testified that at the beginning of the meeting, he asked the business consultant to agree that the meeting would be conducted according to a JDA. According to Weissman`s lawyer, the management consultant agreed. However, the business consultant had a different memory of the meeting and explained that no JDA had ever been discussed. .