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BOSTON � Massachusetts co-plaintiffs’ and co-defendants’ lawyers who exchange information about their clients’ cases without waiving attorney-client privilege are closely watching a Massachusetts Supreme Judicial Court case that could change the rules. Legal organizations worry that the case could alter the so-called common-interest doctrine, which has never been addressed by the state’s highest court, by requiring written agreements. The doctrine allows lawyers on the same side of the case to share confidential information about their clients to craft common strategies in areas where their clients have mutual interests. Advocates say the extra information helps lawyers represent clients more effectively because they’re more fully informed. Also, joint strategies can help streamline court proceedings. Yet while the doctrine is widespread, it’s not universal. At least 39 states recognize some form of joint defense or a common-interest rule through statutes, common law or court rule, according to the New England Legal Foundation. Every litigator’s concern The foundation and the Boston Bar Association stepped into the debate by responding to the court’s request for amicus briefs, which signals a legally significant case. Foley Hoag partner John Shope, who co-authored the bar association’s brief, said local lawyers are relying on cases in Massachusetts federal court that have upheld oral agreements under the doctrine. “One of the concerns we have as a bar association is that reasonable expectations be honored,” Shope said. “Every single litigator is relying on this doctrine.” The Massachusetts Supreme Judicial Court heard an appeal last week of a lower court order approving Hanover Insurance Co.’s motion to compel Arbella Mutual Insurance Co. to produce documents related to the company’s communications with � and the legal costs it paid for � another defendant in the case, Rapo & Jepsen Insurance Services. Hanover and Arbella dispute the number of documents that Hanover is seeking and whether Arbella and Rapo & Jepsen have a joint defense agreement. Hanover Insurance Co. v. Rapo & Jepsen Insurance Services Inc., No. 09780 (Mass.). In the ongoing trial court case, Hanover claims that Arbella paid Rapo & Jepsen � which was then a Hanover agency � to buy six unprofitable Arbella insurance agencies. The agencies had been writing high-risk, high-loss driver’s insurance policies, and Hanover said it lost more than $20 million after its agency acquired the other companies. Hanover attorney Owen Gallagher of Gallagher & Associates in Charlestown, Mass., said the defendants don’t have common interests because they have completely different stories about payments related to the deals. “Whether or not there is a joint defense privilege in Massachusetts, these people don’t come under it,” Gallagher said. Arbella’s in-house counsel, Roberta Fitzpatrick, said the company denies Hanover’s allegations. Arbella also believes that the common-interest doctrine “enhances an attorney’s ability to effectively represent clients in multiparty litigation,” Fitzpatrick said. Warns of uncertainty In its brief for Rapo & Jepsen, lawyers for Washington-based Bonner Kiernan Trebach & Crociata wrote that enforcing the superior court order would unfairly prejudice all co-defendants who are involved in, or planning to use, a joint defense. “That is, unless the present order is reversed or otherwise vacated, there will be uncertainty in the Commonwealth as [to] whether and in what circumstances co-defendants can engage in protected joint defense communications,” wrote the Bonner Kiernan lawyers. The common-interest doctrine is both practical necessity and a rule of fairness, said New England Legal Foundation senior staff attorney Ben Robbins. “I want the [state high court] to understand that they’re not creating a new privilege,” Robbins said. “The privilege seeks to preserve what’s already protected.”

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