Adverse Interest as a Factor Against Common-interest Privilege in New York
In American Re-Insurance Co. v. United States Fid. & Guar. Co., (40 AD3d 486, 491, 837 N.Y.S.2d 616 [1st Dept 2007]), the Appellate Division explained that the "clearest indication of common interest is dual representation".
It also extends to "a situation where there is a joint defense or strategy, but separate representation" (id.).
In that case, the common-interest privilege was inapplicable because there was neither dual representation nor a joint defense or strategy (id.).
The Court only noted that an adverse interest was an additional factor that weighed against finding the common-interest privilege existed there (id.).