Cooperation Among Defense Counsel: Joint Defense Agreements
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CHAPTER 10
COOPERATION AMONG DEFENSE COUNSEL:
JOINT DEFENSE AGREEMENTS
Defense counsel may find it advisable to cooperate with attorneys
who represent other grand jury witnesses, subjects, or targets by
exchanging information relating to a grand jury investigation. If
structured properly, a joint defense effort facilitates communication
among counsel while protecting the confidentiality of information under
the attorney-client privilege and the work product doctrine. This Chapter
first explains the purpose and benefits of joint defense agreements, as
well as their limitations and risks, and then discusses the privilege issues
that joint defense agreements may raise during a grand jury investigation
and steps that counsel may take to avoid such attacks. 1
A. Nature of Joint Defense Agreements
Joint defense agreements allow defendants who have retained
separate attorneys to share information without waiving the protections
afforded by the attorney-client privilege and the work product doctrine.2
The joint defense doctrine, also termed the common interest rule, 3 is
somewhat of a misnomer in that it does not create one joint defense for
the entire group.4 In a joint defense agreement, each codefendant enters
1. For commentary discussing the joint defense privilege, see Amy Foote,
Note, Joint Defense Agreements in Criminal Prosecutions: Tactical and
Ethical Implications, 12 GEO. J. LEGAL ETHICS 377 (1999); Major
Michael D. Davidson, The Joint Defense Doctrine: Getting Your Story
Straight in the Mother of All Legal Minefields, 1997 ARMY LAW. 17
(1997); Deborah Stavile Bartel, Reconceptualizing the Joint Defense
Doctrine, 65 FORDHAM L. REV. 871 (1996); Peter J. Henning, Testing the
Limits of Investigating and Prosecuting White Collar Crime: How Far
Will the Courts Allow the Prosecutors to Go?, 54 U. PITT. L. REV. 405
(1993).
2. Foote, supra note 1, at 377-78.
4. Bartel, sup ra note 1, at 876 (“joint defense groups do not behave like a
single . . . unit.”).
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an attorney-client relationship with their separately retained lawyer. 5
Each defendant may develop its own defenses and can pursue settlements
with the government that may not be beneficial to the group and, in fact,
may be adverse to the other defendants.6 A joint defense agreement does
not create one, unified defense among all defendants, but simply creates
a platform on which defense counsel can share information without
waiving attorney-client and work product privilege protections.7
The policy underlying the joint defense doctrine is to encourage
communication among the parties to the joint defense. Where parties
share a common interest, a joint defense agreement will likely save
money, time, and effort.8 “The formation of joint defense groups
maximizes the strength of the defendant’s case by dividing labor . . . and
preserving the adversary system of justice,” while minimizing “the waste
of judicial time that results from the representation of uncoordinated
defenses…”9 Areas in which cooperation may prove fruitful include:
monitoring of grand jury sessions, debriefing of both clients and third-
party witnesses, sharing of significant documents produced to the grand
jury, sharing of factual and legal research, developing a common
strategy, creating a common chronology of events based on information
from all subjects, sharing subpoena information and the results of any
successful modifications thereto, and even exchanging news and rumors.
The initiation of a grand jury investigation does not automatically
create a joint defense agreement. Nor is entering into a joint defense
agreement always the right decision when involved in a grand jury
investigation. Parties may choose not to enter a joint defense agreement,
given the risk that they may become adversaries or that conflicting
interests could emerge in subsequent civil litigation, thereby destroying
the protections that a joint defense agreement affords. If it appears likely
that the case will go to trial, however, counsel for the various subjects
almost certainly will want to share the results of witness interviews and
to exchange as much information as possible to enable them to prepare
the case effectively.
5. Id. at 876-78.
6. Id. at 878.
7. Id. at 876-77.
8. Id. at 880-85; see also In re LTV Sec. Litig., 89 F.R.D. 595, 604 (N.D.
Tex. 1981) (noting that recognition of joint defense privilege would likely
result in a “savings in expense and effort”).
9. Bartel, supra note 1, at 885.
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B. Privilege Issues Raised by Joint Defense Agreements
The joint defense privilege is an exception to the general rule that
revealing information to a third party waives the protection of the
attorney-client privilege and the work product doctrine.10 To establish a
joint defense privilege, courts generally require that a party show that:
10. See United States v. Krug, 868 F.3d 82, 86-87 (2d Cir. 2017); Hanwha
Azdel, Inc. v. C&D Zodiac, Inc., 617 Fed. Appx. 227, 243 (4th Cir. 2015)
(holding that the joint defense privilege is an extension of the attorney-
client privilege); United States v. Gonzalez, 669 F.3d 974, 977-978 (9th
Cir. 2012) (“The Ninth Circuit has long recognized that the joint defense
privilege is ‘an extension of the attorney-client privilege’”) (quoting
United States v. Henke, 222 F.3d 633, 637 (9th Cir. 2000); United States
common interest doctrine is really an exception to the rule that no
privilege attaches to communications between a client and an attorney in
the presence of a third person”); Cavallaro v. United States, 284 F.3d 236,
249-250 (1st Cir. 2002) (explaining that the common-interest doctrine is
not an “’independent basis for privilege, but an exception to the general
rule that the attorney-client privilege is waived when privileged
information is disclosed to a third party.’”) (quoting E.S. Epstein, The
Attorney-Client Privilege and the Work-Product Doctrine 168-69 (4th ed.
F.2d 244, 249 (4th Cir. 1990) (“[T]he common interest doctrine is really
an exception to the rule that no privilege attaches to communications
between a client and an attorney in the presence of a third person.”);
United States v. Schwimmer, 892 F.2d 237, 243-44 (2d Cir. 1989)
(describing common interest rule as a “extension of the attorney client
privilege”); United States v. Bay State Ambulance & Hospital Rental
privilege doctrine when analyzing whether common interest privilege
attaches); United States v. McPartlin, 595 F.2d 1321, 1336-37 (7th Cir.)
(“McPartlin was entitled to the protection of the attorney-client privilege,
because his statements were made in confidence to an attorney for a co-
defendants for a common purpose related to both defenses.”), cert.
denied, 444 U.S. 833 (1979); Hunydee v. United States, 355 F.2d 183,
184-185 (9th Cir. 1965) (finding that the attorney-client privilege “was
not waived by the exchange of memoranda”); Continental Oil Co. v.
the attorney-client privilege applied and that it was not waived by when
defendants and their lawyers met in conference). Courts have described
the joint defense privilege as an extension of the attorney-client privilege.
See, e.g., Schwimmer, 892 F.2d at 243; Waller v. Financial Corp. of Am.,
828 F.2d 579, 583 n.7 (9th Cir. 1987).
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