Joint defense agreements can lead to unforeseen conflicts and proxy disqualification issues. For example, most lawyers are aware that when lawyers change law firms, disqualifying conflicts can arise if former clients of the lawyer from the new law firm refuse. See Frazier v. Superior Court, 97 Cal. App. 4th 23, 29-30 (2002). But you may not be aware that joint defence agreements significantly increase this risk. In fact, the risk is twofold: a conflict can arise when a law firm involved in a joint defense agreement hires a new lawyer who has previously represented a party who violates a member of the joint defense group. Similarly, if the new lawyer worked on issues involving joint defense agreements during his stay at a previous law firm, adversity between the new law firm and members of the lawyer`s previous joint defense group may lead to a disqualifying conflict in other cases.

Shared defence privilege can allow lawyers to work more efficiently, avoiding the need to duplicate investigation and litigation preparation efforts. Lawyers representing different clients in the same case can also use common defence privilege to create more consistency in their defence strategies, coordinate and streamline resources, and reduce costs. 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. A recent case illustrates this scenario. At his former law firm, a lawyer representing part of a joint advocacy group was aware of confidential information about a substantially related case that his new firm was handling to the detriment of members of the lawyer`s former joint advocacy group. Although the firm established an ethical pretext to ensure that no information about the case was exchanged with the new lawyer, the Trial Court – applying the rule of automatic disqualification by proxy (similar to the Essex judge) – disqualified the entire law firm. Panther vs. Park, 123 Cal. Rptr. 2d 599 (2002), Resumption of Trial Denied, Review Granted, Review Transferred to the Court of Appeal, Panther v. Park, 130 Cal.

Rptr. 2d 656 (2003). While joint defense agreements can be helpful, it is important to understand that they carry very real hidden dangers for both the lawyer and the client. And you, as a practitioner, are ultimately responsible for recognizing and addressing these dangers. This section will address some of these dangers, including potential conflicts of interest and disqualification by proxy, as well as waiver of solicitor-client privilege. Concerned about due process, the safety of the defendants and the constitutional rights of the accused, the court – sua sponte – ordered the defense lawyer to submit their JDA proposal to the court for consideration in camera. The Court concluded that because of its supervisory powers, it had significant powers to oversee its own affairs to ensure that justice was done. In support of this point, the court noted: For example, four clients and four law firms want to enter into a joint defense agreement. You and your company will carefully review the conflicts and conclude the agreement.

Members of the Joint Defense Group then share legal memoranda as well as important documents. Later, far into the litigation, you will learn that one of the members of the law firm did not conduct an appropriate review of the conflicts. In fact, in the past, the other company had represented an opposing party in an essentially related case. .