Lawyers frequently represent multiple clients on the same matter. Absent some contractual arrangements to the contrary, those lawyers must share all confidential information with all the jointly represented clients and, of course, cannot simultaneously be adverse to any of them on that matter or any other matter. Those arrangements normally do not address one client’s ability to waive privilege for communications with the group — how would that work?
In Adams v. Mass General Brigham Inc., Civ. A. No. 21-11686-FDS, 2025 U.S. Dist. LEXIS 63160 (D. Mass. Apr. 2, 2025), pro se plaintiffs sought leave to file a second amended complaint, supported by exhibits. In a rare display of unity, both the defendant and other plaintiffs moved to strike those pro se plaintiffs’ filing — because it disclosed “alleged settlement discussions and other privileged communications.” Id. at *3. The court bluntly noted that the pro se plaintiffs “may choose to waive their own privilege as to communication concerning matters related to them alone,” but (quoting another court’s opinion) cannot ” ‘unilaterally waive the privilege as to any other of the other joint clients’ communications or as to any of its communications that relate to other joint clients.’ ” Id. at *4 (citation omitted). In other words, joint clients must unanimously agree to waive privilege for any communications that relate to all of them.
Of course, a joint client’s rogue disclosure as in this case allows adversaries to read the improperly disclosed communications. But presumably this court, and all other courts, would not allow such communications’ use.
