2007 NORTON BANKRUPTCY LAW SEMINAR MATERIALS
THE ETHICS OF REPRESENTING DEBTORS &
CREDITORS IN BANKRUPTCY
By Susan M. Freeman
to committee constituents regarding sharing of information where there is a need for
confidentiality, referencing the new committee-constituent disclosure statute and caselaw on
insulating sensitive information from competitors. Committee counsel should ask the court to order that disclosing information to a committee constituent does not result in a waiver of the privilege with respect to adverse parties, under the common interest doctrine, an analogy to shareholder derivative suits, or otherwise.
D. The Joint Defense or Common Interest Doctrine in Bankruptcy.
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Communications between an individual and an attorney for another, or between attorneys for two parties, are protected by the privilege where they are part of an on-going and joint effort to set up a common defense strategy. The communications must have been made in the course of a joint defense effort, designed to further that effort, and not be in a context in which the privilege otherwise was waived or inapplicable. The parties' common interest must be identical, not similar, and must be legal, not commercial. This privilege does not apply to several parties represented by the same lawyer. A joint defense privilege generally cannot be waived without the consent of all parties sharing the privilege.
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If the joint defense ceases, and the interests of the joint parties become adverse, the privilege no longer protects the communications previously made as between the formerly-aligned parties. Similarly, when a single lawyer represented both parent and subsidiary, the subsidiary's bankruptcy trustee may obtain documents and
This outline is adapted from Chapter 27, Ethical Responsibilities, Norton Bankruptcy Law & Practice 2d (Thomson-West 2005)
