Commercial claim funding, where funders invest in business disputes in exchange for a percentage of any eventual settlement or judgment, is a growing industry in the United States. Funders may request confidential information about the claim and litigation strategy both before deciding to invest (to analyze the strength of the claim) and during the course of the financial relationship (to manage the investment). Further, these funders may work and communicate with claim holders and lawyers about the claim. However, there has been little caselaw and little in-depth analysis on whether--and in what circumstances-the attorney--client privilege and work-product doctrine can be applied to protect communications, interactions, and work shared with claim funders or developed between claim funders, lawyers, and claim holders. This Article attempts to fill that gap by exploring the way the doctrine has been applied in other contexts, including patent law, public relations, and insurance, to predict how the doctrine might be applied in the claim funding context.
Despite assumptions to the contrary, my analysis leads to two conclusions. First, there is more than one exception to waiver of the attorney-client privilege doctrine that might apply to protect communications between claim funders, claim holders, and their lawyers: the agency exception, the functional equivalence exception, and the common-interest doctrine exception may all apply. Second, despite its breadth, the work-product doctrine may be determined inapplicable depending on (1) the test and analysis the court uses to determine whether work-product protection applies, and (2) the court's approach to analyzing the common-interest doctrine-a doctrine that is more commonly associated with the attorney-client privilege but that has been used by courts to demonstrate waiver of workproduct doctrine protection as well.
Understanding that interactions and communications between claim holders, funders, and attorneys can be protected by the doctrine, the question is whether they should be. Invariably, such an inquiry could collapse into an analysis of whether we should allow claim funding at all, and, for that matter, whether privilege doctrines should exist in the corporate context. Putting those questions aside, I tackle the normative question by analyzing whether the problems commonly associated with commercial claim funding are intensified when the interactions between claim holders, funders, and lawyers are protected. Ultimately, I conclude that applying the exceptions to waiver and the work-product doctrine may, instead of increasing the risks and negative externalities of commercial claim funding, help to protect these interactions while simultaneously yielding benefits yet explored.
As a result, I conclude with two recommendations: one doctrinal and one practical. First, I recommend that courts adopt one of the more lenient interpretations of the common-interest -doctrine. By doing so, both the attorney-client privilege and work-product doctrines can be consistently and predictably applied to protect communications at issue in this context. Second, I urge lawyers to carefully craft contracts so that they include nondisclosure and statements of common interest agreements.
In sum, I end with a word of caution. Despite the doctrinal support for the existence of a common interest between claim funders and claim holders, because of the common problems associated with claim funding and the common distaste for the commodification of law, claim funders, claim holders, and their lawyers should approach issues around confidentiality with caution.
Michele M. DeStefano, Claim Funders and Commercial Claim Holders: A Common Interest or a Common Problem?, 63 DePaul L. Rev. 305 (2014).