Joint Defense Agreement Conflict Of Interest

Faced with a dilemma similar to Henke`s, the United States court against Stepney[6] attempted to circumvent all the potential conflicts of interest that arose from the JDAs among many defendants. Stepney highlighted another risk associated with JDAs – in particular the risk that the court would dictate the terms of a JDA prior to its execution. Common defence and common interest agreements can be effective instruments to promote client interests and reduce costs. The key is to do them properly so that they do not become the basis of litigation themselves. The termination is important for the parties to fully understand when the common interest privilege ends and what happens when it occurs. Provisions confirming lawyers` obligations or absence are again necessary to avoid unnecessary litigation, including costly disqualification claims. Joint defence agreements serve as both contracts and communications to the client. In these contracts, the parties agree that they exchange confidential information for their mutual utility and that they can protect them from disclosure of exchanges and preserve the privileges that are already attached to that information. In California, there is no formal privilege of common defence. Rather, it is a legal doctrine that derives primarily from solicitor-client privilege. Two federal criminal cases, Henke and Stepney, illustrate the importance of carefully crafting these agreements.

United States vs. Henke, 222 F.3d 633; Stepney, 246 F. Supp. 2d 1069. In Henke, the Ninth District Court found that “a joint defence agreement creates an unspoken relationship between the lawyer and the client with the co-accused…. [¶] This privilege can also lead to a dying conflict, where information acquired by a trusted lawyer will become a problem… ». Henke, 222 F.3d to 637. In Henke, the agreement apparently did not include a waiver of the right to seek the exclusion of a lawyer or the right to object to the use of common defence equipment. And in such circumstances, the court found that the information obtained by defence counsel led to a dying conflict when one of the accused was elected to testify for the government. To obtain the privilege of communicating with others, a party must generally show three things: that the communication ended in a common defence, that the communications were made to support the objectives of that common defence, and that the privilege was not nullified elsewhere (i.e. that the common defenders do not share communication beyond their small group). The purpose of this email is to commemorate our discussions yesterday on the common interests of our clients in the field of FIFA.

We will work together as part of a common interest agreement. I understand that it will have terms similar to the last we had, and we can know if we wrote them, some details, etc. when you land. It will be effective from yesterday. [12] While common defence agreements may be useful, it is essential to understand that they have real hidden dangers for both lawyers and clients. And you, as a practitioner, are ultimately responsible for the detection and hazard of these dangers. This article will address some of these risks, including potential conflicts of interest and disqualification from vice versa, as well as waiving solicitor-client privilege.

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