§ 38.09 Joint Defense ("Common Interest") Agreements

JurisdictionUnited States
§ 38.09 Joint Defense ("Common Interest") Agreements

The privilege may apply in "joint defense" situations,87 meaning t hose in which attorneys for different clients confer for the purpose of advancing the same defense.88Because the privilege may apply outside the litigation context, it is more aptly termed the "common interest" or "pooled information" rule.89 Joint defense agreements have tactical advantages, permitting counsel to share factual information and discuss coordinated strategy. In addition, the cost of investigations, discovery, research, and experts can be shared. The agreement need not be in writing.90

Scope. The agreement must further a common legal interest. However, it "need not have identical interests and may even have some adverse motives" but the attorney needs to be "engaged in maintaining substantially the same cause on behalf of other parties in the same litigation."91 Client-to-client communications in the absence of attorneys are not covered by this rule.92 The agreement may also end.93

Waiver. There is little question that a "party always remains free to disclose his own communications."94 However, "one party to a JDA cannot unilaterally waive the privilege for other holders."95

Cross-examination. If one party terminates the agreement and testifies for the prosecution, a potential conflict-of-interest may arise. One court held: "[W]hen each party to a joint defense agreement is represented by his own attorney, and when communications by one co-defendant are made to the attorneys of other co-defendants, such communications do not get the benefit of the attorney-client privilege in the event that the co-defendant decides to testify on behalf of the government in exchange for a reduced sentence."96 The court reached that result because it found that "Fainberg waived his attorney-client privilege when he turned state's evidence, thereby entirely removing the possibility of a conflict of interest from the case."97 Agreements covering a duty of loyalty in addition to confidentiality raises conflict of interest issues.98

This rule must be distinguished from the joint-clients issue discussed below.


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Notes:

[87] See Proposed Fed. R. Evid. 503 advisory committee's note ("The rule does not apply to situations where there is no common interest to be promoted by a joint consultation, and the parties meet on a purely adversary basis.").

[88] E.g., In re Grand Jury Subpoenas 89-3 and 89-4, 902 F.2d 244, 248-49 (4th Cir. 1990) ("common...

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