The joint defense privilege and its ethical implications.

• Author: Sheehy, Richard A.

Courts recognize the privilege, but the major issues relate to its extent, particularly when a settling defendant reveals confidential information

All for one, one for all, that is our device.

--Alexander Dumas, The Three Musketeers

There is little question or doubt that modern litigation continues to involve multiple parties and more complex issues, especially in the scientific and technical areas. As the cost of litigation rises, more parties are turning to representation by a single lawyer or by a defense group. However, that representation plan requires parties and their attorneys to share information that might otherwise be privileged. In recognition of this situation, courts have developed what has become known as the joint defense privilege to protect communications among parties and their attorneys pursuing a common defense.

The joint defense privilege protects shared communications between various co-defendants, actual or potential, and their attorneys, prompted by threatened or actual civil or criminal proceedings, to the extent that the communications concern common issues and are intended to facilitate representation in possible subsequent litigation.(1)

The protection afforded by the privilege has been extended to communications between different persons or separate corporations when the communications are part of an ongoing and joint effort to set up a common defense strategy.(2) The privilege enables counsel for clients facing a common litigation opponent to exchange privileged communications and attorney work product in order to prepare a defense without waiving either privilege.(3)

SOURCE AND CHARACTER OF THE PRIVILEGE

There is no specific provision for a joint defense privilege in the Federal Rules of Evidence. In fact, there was a proposed change to Rule 503 that expressly would have provided for such a privilege, but the changes to that rule were rejected. One court termed the proposal as "perhaps the broadest privilege ever proposed in the United States."(4)

Although the changes to the federal rule were not adopted, many states have rules of evidence patterned on the proposed federal rule.(5) Under Federal Rule 501, privileges in federal court are governed either by common law or by state law.

As the U.S. District Court for the District of Colorado pointed out in Metro Waste Water Reclamation District v. Continental Casualty Co.,(6) the joint defense privilege has been widely accepted by courts throughout the United States. The privilege was developed initially for communications between co-defendants in criminal cases. However, the courts have now expanded the reach of the privilege to a wide variety of situations involving multiple parties with a common defense or claim.(7)

There is a distinction between the joint defense privilege and a common interest privilege. The authors of a well-respected treatise state, "Federal courts continue to confuse the allied lawyer doctrine, which applies when parties with separate lawyers consult together, and the joint client defense, when two clients share the same lawyer." In fact, the authors of the treatise claim that the term "joint defense privilege" mangles the two concepts?

As an example of this confusion, the D.C. Circuit in In re Sealed Case,(9) discussed the distinction between the two concepts. The joint defense privilege protects communications among multiple parties and their respective counsel if they are engaged in a joint defense effort. In contrast, the common interest privilege protects communications between a lawyer and multiple clients regarding matters of common interest. There may be a technical distinction between the two concepts, but it is difficult to see how there is any practical difference.

The joint defense privilege, even if it "mangles two concepts," is not considered an independent privilege. The courts have emphasized that it is an extension of the privilege for attorney-client communications or the work product immunity,(10) The privilege applies only if conditions are met for an application of the attorney-client privilege or the work product immunity.(11)

Of course, as with all privileges, there are competing policies. Courts must balance the need for full discovery among parties and free communications between counsel and the parties with a common interest. In general, privileges are strictly construed, although the attorney-client privilege has a special place in American jurisprudence.(12)

ETHICAL CONSIDERATIONS

In Formal Opinion 95-395 (1995), the American Bar Association Committee on Ethics and Professional Responsibility discussed this question: "What duties does a lawyer owe [to] current and former insurance company clients [and to other members of the consortium], where the lawyer left a firm that represented the former client as part of a consortium, and the current client wishes to sue a consortium member?"

The hypothetical question assumed that the joint defense agreement recited that lawyers for one member of the consortium did not represent other members, that the proposed engagement would be "substantially related" to consortium matters, and that the matter was not directly adverse to the lawyer's former client but directly adverse to other members of the consortium.

The ABA analyzed the question under three headings.

1. Duties Owed Previous Client

   With respect to any confidential information the lawyer obtained directly from previous client, the committee stated that "the attorney must obtain permission from the former client before disclosing the information." Pursuant to the joint defense agreement, the participants shared information that would be privileged work product or attorney-client material: "Thus information that would not, strictly speaking, `relate to the representation of a client' ... is imputed to the former client and protected from disclosure."

   This obligation would be lifted if the lawyer's prior client consented to disclosure, the committee stated:

   It is probable that the joint defense consortium agreement, however, would have imposed on its participants a duty to require its attorneys to preserve the confidences revealed in the representation. Granting consent to the former attorney could result in liability [presumably, by the former client] to the other consortium members. Even though the new client does not want to sue the lawyer's former client, the new matter is related to consortium matters and therefore related to the lawyer's representation of his prior client, the committee held, adding that the lawyer cannot accept the new client without the prior client's informed consent.

2. Duties Owed Other Members of...