Eyes Wide Shut: How Ignorance of the Common Interest Doctrine Can Compromise Informed Consent

This Article addresses the novel ethical problems presented by the common interest doctrine that implicate an attorney’s duties of diligence, confidentiality, and loyalty to his or her client. These adverse effects of informal aggregation are not always fully considered before engaging a client in a common interest arrangement, but they should be. In Part II, this Article first explains the potential advantages that the common interest doctrine presents as an evidentiary tool, but then recognizes that exercise of the doctrine creates an undefined duty on the part of the attorney to the party with whom a client exchanges confidential information. Specifically, Part II.B warns that the common interest doctrine creates some duty-ethical or fiduciary-owed by an attorney to a third party. Part III.A explains the effect that this undefined obligation to other members of the common interest agreement may have on an attorney’s ability to provide her original client with the representational rights to which he is entitled. In Part III.B, the Article further explains that the relationship created between an attorney and the other members of the common interest group may so interfere with the attorney’s ability to represent her client as to require her to withdraw as counsel to the original client. Finally, Part IV of this Article proposes that a broader discussion of the risks of the common interest doctrine, as well as an individualized cost-benefit analysis, would serve to adequately inform a client of the risks associated with the common interest doctrine.