During contract negotiations, a lawyer's obligations regarding communication vary depending on whether the party on the other side of the table is represented by counsel. This is the same material found in Official Comment [4] to Model Rule 4.2. 1965). Even though plaintiffs counsel had not officially withdrawn from representing this plaintiff in the matter, the Texas Supreme Court determined that it was acceptable for defense counsel to meet directly with the plaintiff in part because the plaintiff may have had good reason not to notify his counsel, who was also representing other plaintiffs. This requirement is not unique to the common interest version of the attorney-client privilege, as all attorney-client communications should be legal in nature to warrant protection from discovery. The fact that a communication does not violate a state or federal constitutional right is insufficient to establish that the communication is permissible under this Rule. 1985) ([I]t is apparent that Cities did not waive the work product privilege attached to these documents by disclosing the documents to Gulf pursuant to the merger agreement. In sum, the common interest attorney-client privilege and the common interest doctrine can overlap in litigation and are in a sense related, but practitioners should be sure to avoid conflating these separate lines of cases. The city attorney told the labor attorney to cease communicating with city employees whose act or omission make the city liable without the city attorneys consent. Consent of the organizations lawyer is not required for communication with a former constituent. To ensure accuracy of Va. 2008). See Restatement (Third) of the L. Governing Laws. 1996) (patent application); In re Sulfuric Acid Antitrust Litig., 235 F.R.D. These courts reason, with some persuasive force, that the companies are engaged in a zero-sum game in obtaining the best deal for themselves at the others expense, and therefore cannot share a common interest.16 But other courts have found that premerger negotiations between separate entities can be protected as privileged.17 A seminal opinion in this line of cases reasoned that shielding communications between prospective buyers and sellers from discovery encourages frank communications, thereby reducing unwelcome surprises after acquisition and ultimately diminishing the risk of subsequent litigation.18. 2005). Attorney-client privilege. Rule 4.3 and the Difficulties of Dealing with an Unrepresented - NHBA of Cal., 101 F.3d 1386, 1391 (Fed.
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