Prof. Michael J. Hutter has authored an amicus curiae brief to the New York State Court of Appeals in Ambac Assurance Corp. v. Countrywide Home Loans, Inc. He was asked to author such a brief by the New York State Academy of Trial Lawyers. The appeal will be argued on April 28. Click here for a copy of the brief.

Ambac presents an important attorney-client privilege issue. While the issue is one of first impression for the Court, courts outside New York, both federal and state, have reached conflicting results. Specifically, the issue is whether the common interest exception rule, which permits clients and their attorneys to share privileged communications with other clients and their attorneys without causing a waiver of the privilege when they share a matter of common interest in the litigation context, should be extended to the sharing of information in a non-litigation context, e.g., transactional matters. The issue as raised in Ambac arises out of a merger transaction where the two merging parties shared confidential communications in order to finalize the merger.

Prof. Hutter argues that that the common interest exception should not be so extended as there is no basis in law or policy to do so. His argument as developed traces historical rise of the common interest exception and shows how such exception as presently limited is consistent with the policy underlying the attorney-client privilege itself; and that the sought-after exception is inconsistent with that policy.