The attorney-client privilege is one of the cornerstones of the legal profession. Despite the privilege’s sacrosanct nature, there are exceptions to the well-established rule that the communications between an attorney and his client are confidential. For example, under certain circumstances (pre-representation disclosures and waivers are needed), an attorney who represents multiple clients in the same matter can share communications among those involved in the joint representation, without waiving the attorney-client privilege as to those who are not part of the joint representation (i.e., the rest of the world). But what happens when infighting arises among those who were parties to the joint representation? This issue was recently analyzed by the U.S. District Court for the District of Delaware in Newsome v. Lawson, 2017 WL 6334979 (D. Del De. 12, 2017).

In Newsome, a liquidating trustee on behalf of a bankruptcy debtor filed a legal malpractice lawsuit against a group of lawyers based on their roles as attorneys for both the debtor and the debtor’s parent company. The lawyers had an attorney-client relationship with both the parent company and its wholly-owned subsidiary, the debtor. The lawyers refused to produce certain documents in the legal malpractice lawsuit asserting that such documents were protected by attorney-client privilege. The trustee moved to compel. The District of Delaware had to determine whether the former attorneys, who jointly represented both entities, could claim privilege in a subsequent litigation filed by one of the joint-clients against the attorneys. The district court ruled that the attorney-client privilege did not apply in this context.