Two federal criminal cases, Henke and Stepney, illustrate the importance of entering into such agreements carefully. United States v. Henke, 222 F.3d 633; Stepney, 246 F. Supp. 2d 1069. In Henke, the Ninth District Court found that “[a] joint defense agreement establishes an implied attorney-client relationship with the co-respondent. [¶] This privilege can also lead to a disqualifying conflict when information obtained by a lawyer in confidence becomes an issue. Henke, 222 F.3d to 637. In the Henke case, the agreement did not appear to contain a waiver of the right to request the exclusion of a lawyer or the right to object to the use of joint defence documents. And in such circumstances, the court concluded that the information obtained from defense lawyers resulted in a disqualifying conflict if one of the defendants chose to testify for the government.
Although some courts have established an implicit solicitor-client relationship between all members and counsel of the Joint Defence Agreement, this view is erroneous and based on a misunderstanding of the relationship. The best approach is to recognize that any duty a lawyer owes to non-clients in a common defense situation is a duty based on the common defense itself. Therefore, the real question arises as to whether the party seeking disqualification has demonstrated a common defence between it and the former client of the lawyer concerned by the application for disqualification. As a starting point, many courts distinguish between common defence and common interest privilege, concluding that the former is narrow and results from actual litigation, while common interest privilege is broader and does not require ongoing litigation. Many other dishes use the terms almost interchangeably, with no significant difference between the two. The concepts and predicates of an enforceable agreement of common interest are essentially similar to those of the Common Defence Agreement. They include genuine common interests sufficient to justify an exemption from the rules on waiver of solicitor-client privilege. How should the courts decide on the issue of joint defence agreements and requests for recusal of another joint defence lawyer`s lawyer in a subsequent dispute? After analyzing the previous cases while trying to solve the problem, it is clear that there is no generally accepted analysis of the disqualification problem. This article provides an analytical framework that courts can use when deciding such claims for forfeiture in the context of previous joint defence agreements. In general, a client waives professional secrecy if he voluntarily transmits privileged communications to third parties.
[2] The waiver under the common defence doctrine is essentially the same as that under solicitor-client privilege. The only difference is that a co-respondent`s communication with the other lawyer does not constitute a waiver of the confidentiality of that communication. The voluntary disclosure of allegedly privileged communications to third parties has long been considered incompatible with privilege. It is generally accepted that if a party voluntarily transmits privileged communications to third parties, the privilege is waived. [3] If a party discloses some of the otherwise privileged material but retains the rest, the privilege will only be waived in respect of the communications actually disclosed, unless a partial waiver would be unfair to the party`s opponent. [3] Disclosure alone, without intent, may constitute a waiver of solicitor-client privilege. . “under the traditional doctrine of renunciation, voluntary disclosure.
to a third party waives solicitor-client privilege, even if the third party undertakes not to transmit the communication to third parties. [3] In Massachusetts, when an attorney represents more than one client in a particular case, one client`s communication with the lawyer in the presence of the other client or clients is not privileged, as between clients. [6] In Thompson v. Cashman, a lawyer who worked for both the plaintiff and the defendant, was allowed to testify in a conversation between the attorney, plaintiff and defendant. [6] [7] But not all disclosures lead to a waiver. “Under joint defence privilege, communication between the client and his or her own counsel remains protected by solicitor-client privilege if disclosed to the co-respondent or his or her defence counsel for the purposes of the joint defence.” [1] [3] [8] The next question in the analysis concerns the burden of proof and the presumption of shared trust. It is proposed to use different approaches depending on whether or not there is an explicit joint defence agreement with a confidentiality provision. Where such an express provision exists, a rebuttable presumption should be used. Under this approach, the disqualified lawyer would have the burden of proof that he or she did not receive confidential information. On the other hand, in the absence of such an express agreement, the responsibility of the moving party should be imposed to prove that the target lawyer received confidential information. The common defence privilege, or common interest rule, is an extension of solicitor-client privilege.
[1] Under the doctrine of “common interest” or “common defence”, parties with a common interest in actual or potential litigation against a common adversary may disclose privileged information without renouncing their right to claim solicitor-client privilege. [2] Given that “the common defence privilege can sometimes apply outside the context of an actual dispute, what the parties call a `common defence` privilege is more aptly referred to as the `common interest` rule.” [3] A party wishing to invoke common defence privilege must demonstrate the following: the contrast between Henke and Stepney dramatically illustrates the need for careful development of such agreements. Based on the stepney court`s proactive decision, the court apparently considers that the waiver provisions in joint defense agreements are enforceable independently of the Henke decision. .
