To Ambac Assur. Corp. v Countrywide Home Loans, Inc., 27 NY3d 616 (2016), the New York Court of Appeals has expressly limited the application of the doctrine of common interest to «co-accused, co-prosecutors or persons who reasonably expect them to become civil parties…. In this regard, the Court of Appeal clarified that the policy underlying the doctrine was to allow two or more parties to coordinate a common claim or defence, without fear that such efforts would later become an object of disclosure. In authorizing the broker`s application, the Court upheld the limited applicability of the common interest doctrine presented by the Court of Appeal in Ambac. The court justified this decision by the fact that the general contractor, since the transfer sold the general contractor entirely of any interest at the end of the litigation, could not – by definition – become a party to the complaint. As a result, all oral and written communications between the owner and the general contractor were considered unprivileged and subject to disclosure by the other party. It is a very common practice for lawyers for co-accused or civil parties to enter into agreements that protect their communications. Agreements are statements of intent that disclosure is protected by the «doctrine of common interest,» which extends solicitor-client privilege to discussions with parties with a common interest. According to the doctrine, solicitor-client privilege is not waived if such communications are made between parties with a common legal interest. After the interests in Ambac and 59% 4th LLC, any lawyer considering a common interest agreement should ensure that these agreements are not automatically complied with. Instead, practitioners must confirm whether their situation complies with Ambac`s requirements or that they too may consider their private communications to be unprotected.

In 59 p. 4th LLC vs. A-Top Ins. Brokerage, Inc., 2017 N.Y. Slip. Op. 30050[U] (Sup. Ct., N.Y. County, Jan.