In granting the broker`s application, the Tribunal confirmed the limited applicability of the doctrine of common interest as presented by the Ambac Court of Appeal. The General Court held that, because the contract completely disappoints the general contractor with any interest he might have had at the end of the dispute, the general contractor could not, by definition, become the plaintiff in the action. As a result, any oral and written communication between the owner and the general contractor was considered unsusered and subject to disclosure to the other party. The historical roots of community privilege lie in the criminal proceedings against several co-accused. Shahoon v. Commonwealth, 62 Va. 822 (1871). In civil proceedings, the privilege of the common interest was created, as civil co-accused generally have the same objectives. Cf.
In re LTV Sec. Litig., 89 F.R.D. 595, 604 (N.D. Tex. 1981). In the civil context, the common interest privilege protects both the communication between the co-accused and their lawyers in actual litigation, as well as potential co-accused and their lawyers. Ferko v. NASCAR, 219 F.R.D. 396, 401 (E.D. Tex. 2003). It is this last mode of communication – that between potential but not real co-accused – that raises many questions today.
Hilsinger argued that Eyeego and the third party had no common legal interest because they were negotiating for a contract which, if performed, would give them a common legal interest. In addition, the agreement of common interest should clearly define the common interest of the law. For lawyers, this involves dealing with risks such as obligations to non-clients who are parties to the joint defence agreement.