A Detailed Guide to Joint Defence Agreements

What Exactly is a Joint Defence Agreement?

Joint defence agreements, or JDAs, are tools used by attorneys to facilitate the sharing of privileged information between different parties in order to prepare a defense against a common legal adversary. A JDA promotes the free flow of information between lawyers representing clients with a common interest in litigation. It avoids the problems caused by the "Chinese wall" approach to conflicts between attorneys who are involved in simultaneous lawsuits for different clients.
Situations where a JDA may be appropriate typically include when multiple defendants are sued and have a common interest in defending against the claims; when a corporate executive receives a target letter from the government; when the government notifies the attorney that the government intends to disclose attorney general communications in a case; when a corporate officer receives a subpoena; or when a witness is interviewed by the government .
JDAs do not apply to transactional matters, and do not waive attorney-client privilege. For this reason, the attorney must take steps to maintain the privilege in communicating with the client. The sharing of joint defense information may also waive the work product doctrine, especially if a party hired a lawyer in anticipation of litigation.
Agreements among clients and counsel should be in writing. Joint defense agreements typically include the following: A joint defense agreement may extend to a government investigation matter, and can resolve an ethical breach of confidentiality. It does not, however, extend to matters unrelated to the common defense.

The Law of Joint Defence Agreements

While there is no specific law that explicitly lays out the legal framework of joint defence agreements, case law generally underpins the understanding of how such arrangements have been treated legally among courts. At the very least, a joint defence agreement preserves the attorney-client privilege, and the attorney work product doctrine, when approved by the courts in such criminal contexts. Such agreements implicate the right to a fair trial that is protected under the Sixth Amendment of the Constitution.
In order to understand this seemingly vague protection of the attorney-client privilege, often a court will outline the duties and responsibilities that adhere to the members of a joint defence. This set of procedures allows the defence team to talk to their clients without violating attorney-client confidences while working together.
In cases where cooperation between the defendants has not been articulated clearly, such as in a criminal conspiracy case, courts have held that the duty of loyalty is violated when an attorney discloses confidential communications to another co-defendant attorney. In such cases where the duty has been violated, courts will exclude evidence about an attorney’s conversations with co-defendants. Further, courts may disqualify an attorney if, say, the attorney leaves one defence team to join another defending co-defendants in the same matter.
In addition to these limits that apply due to violations of the duty of loyalty, the attorney-client privilege is protected in that it applies to communications that are made confidentially, on the condition that the communications be confidential, for the purpose of securing legal services, and pertinent to the particular scope of the representation of the defendant. Informal private conversations between counsel and their clients do not violate the privilege.

Using Joint Defence Agreements to Your Advantage

The Strategic Utilization of Joint Defence Agreements
For co-defendants or other parties with closely aligned legal interests, the JDA provides a planning platform for cooperation. For example, in many cases the same counsel may represent more than one co-defendant (with the caveat that conflict issues may arise if a particular defendant someday finds itself on the aggressive end of a counterclaim or similar attack). The JDA also preserves the ability of counsel representing more than one co-defendant to develop integrated and diverse defenses for use against the other side. A well-structured JDA may help to ensure that time and money are not wasted on unnecessary or redundant discovery phases, preparation of expert reports and affidavits, and other aspects of pre-trial work-ups. Indeed, the need to avoid duplicative work is often cited as one of the primary benefits that will be realized by parties executing a JDA.
In addition, the fact that a JDA has been signed may facilitate pre-trial progress because it encourages an interchange of information between counsel. Also, JDAs may sometimes enable coordinated and expedited approaches to discovery, settlement negotiation, motions practice, and trial. By sharing information like this, the parties with closely aligned legal interests may be able to negotiate acceptable terms for stipulations, confidentiality orders, and other procedural requirements. JDAs may also be valuable for some businesses attempting to resolve overlapping claims with more than one plaintiff or defendant.
In addition to the costs involved with attorney time, the JDA format enables co-defendants to save on substantial costs associated with the retention of extra experts, subcontracting for large tasks, and other areas where consolidated efforts can reduce duplication.

Joint Defence Agreements – Their Risks and Limitations

Entering a JDA can have its drawbacks. The most important consideration should be the relationship between the parties. The law will rarely if ever impose on a party that is forced to deal with an adversary an obligation to keep information confidential that provides a strategic advantage to the adversary. This is why JDAs are mostly used in a criminal or quasi-criminal context, where an accused will have little choice to seek out such assistance due to his or her own self-interest.
Often JDAs are signed when it is not clear if a CCO has been breached, and what the subject matter contained in communications between parties subject to the same investigation might be. The risk that comes with signing a JDA at this stage of an investigation is that what could become critical evidence in a legal proceeding or prosecution might be viewed by a court as voluntary disclosure. This could weaken the strength of a client’s application for production of records in a civil litigation, or for production of privileged materials in a professional regulation context. Merely entering into a JDA with another party can have the potential to disclose information which may later be privileged. Whether this privilege is breached or not will depend on the contents of the communication and how the Courts determine the scope of the sharing of privileged information.
Another added risk is a potential conflict of interest. If a JDA is entered into, the lawyer for one or both of the parties needs to be careful that their loyalty is to their client, and not to the flavour of the month party. A JDA should never be used to further the agenda of an auxiliary party.
They also remove the client’s ability to unilaterally assert blame. Punishments for CCO breaches rely heavily on remorse. A joint defence agreement may be construed to decrease the degree of remorse by an individual that is demonstrated, and this could therefore result in a harsher sentence.
The JDA should specify how information will be used and circulated within each party’s defence counsel team. The agreement should also specify the scope of privileged communications flowing internally in each party’s team. The information and strategy should be carefully crafted and not simply be a vehicle for disclosing privileged communications.

The Essential Elements of a Good JDA

It is well established that a joint defence agreement (JDA) must set forth the agreement of the parties to acknowledge the joint defence privilege when they are represented by separate counsel, and that certain communications between the parties’ counsel shall remain confidential.
A JDA is therefore required to contain some of these basic, essential terms: Scope of Joint Defence The parties to a JDA should identify the scope of the "Joint Defence" relationship between themselves. For instance, do the parties only intend to share privileged communications with one another regarding costs? Or is the intent to share privileged information concerning liability, as well? Clearly spell out the types of communications that are going to be shared under the JDA. But keep in mind that any agreement to share information does not require a party actually to share negative, non-confidential facts. Confidentiality It goes without saying that the primary purpose of a JDA in protecting the parties’ confidentiality. Therefore, a JDA must define the term "Confidential Information," which should broadly include all communications and other information shared between counsel that is protected by the attorney-client privilege or work product immunity, including all notes, memoranda and other documents based upon or containing such Communications . Additionally, the definition should also include all communications between clients and their attorneys, and/or communications between the clients alone. With regard to confidential communications, JDAs must also make clear the understanding that each party must maintain the confidentiality of all privileged communications that are disclosed, and that the privilege must be asserted in the event of any disclosure. The Limitations of the JDA Any JDA will require that it tread carefully in balancing the interest of the sharing parties. For example, JDAs may, and indeed should, require that the sharing parties observe Rule 4.2 when communicating with others, as well as keeping confidential any discussions concerning settlement of the case. Any joint defense agreement will require a general understanding that no party may turn on the others or initiate a lawsuit against them with regard to actions in the course of the joint defense. Termination of the JDA Most JDAs will provide that either party may terminate the agreement by giving notice to the other parties; however, the continuing obligations of the parties with regard to the confidentiality of communications is not terminated. Likewise, the agreement should also require that clients and their law firms return all documents and other tangible materials containing or pertaining to Confidential Information.

Cases Involving Joint Defence Agreements

Examples of Important Cases Involving Joint Defence Agreements
A number of cases have involved joint defence agreements and the standards applicable in determining the waiver of the attorney-client privilege. For example, in United States v. Salyer, 2008 WL 2169196, *1 (E.D. Cal. May 13, 2008), the defendant was convicted of making false statements to federal investigators. Prior to trial, he had communicated with counsel for another potential defendant and management representatives of a corporation, and they engaged in defense meetings and discussions about their own courses of conduct and the conduct of third parties related to the case. At trial, the government sought to introduce these statements and documents, but the trial court found that they were protected by the joint-defense privilege.
The court determined that the joint-defense privilege applied and that it was not waived because: (1) the defendant did not intend to waive the privilege; (2) there was no relevant waiver, because the disclosures were made to the other defendant to aid his defense; and (3) the disclosure was made in a manner that preserved the secrecy of the communication.
The Salyer court also found that there was not a waiver of the attorney-client privilege because the defendant in that case had received legal advice during the communications.
Another example is In re Grand Jury Testimony of M. M. R., 2010 WL 2649919 (E.D. Penn. June 30, 2010), where the issue was whether the communications of a witness to a company’s attorneys violated the joint defense agreement and were therefore subject to disclosure. In M. M. R., an employee of a corporation was ordered to appear before a grand jury investigating the company’s alleged misconduct, but she had signed a waiver in favor of the corporation so that the lawyers could use the employer’s houres and witnesses. The government argued that the employee had waived the privilege when she met with the corporation’s attorneys because they were concerned about its exposure to government allegations, and relied on the defense of the corporation and others who were being investigated.
The court found that it should apply the law of the forum state, Pennsylvania, «because the joint defense agreements were entered into in Pennsylvania. Our research indicates that the courts of the Commonwealth employ an ‘issue-by-issue’ approach to determining the existence, length and applicability of the joint defense privilege.» Id. at *4.
Applying Pennsylvania law, the court found the joint-defense privilege applicable. There were issues also relating to the execution of a waiver of the attorney-client privilege:
M. M. R. initially executed a broadly worded waiver that contemplated the broad acceptance of the restrictions that the government put on defense counsel as a condition to allowing M. M. R to participate in the proffer. However, the first requirement for the waiver to be valid is that it must be knowing and voluntary. The second requirement is that it be made to the right persons. Neither is present in this case. Id. at *7.
Furthermore, the court determined that the joint defense agreement itself had not been breached, finding that the cooperation agreement «clearly contemplated the execution of the Crowe waiver and that Crowe conducted the right inquiry under the circumstances, namely, whether Crowe was a target. Although Crowe failed to advise M. M. R. on the record of her rights before the waiver was signed, that does not mean that the waiver was invalid as to M. M. R. Crowe is not subject to the duty to advise M. M. R. Crowe’s failure to advise M. M. R. of the waiver did breach the spirit of the Crowe waiver, because it sanctioned Crowe’s lack of knowledge as to the facts underlying the investigation that would have clearly indicated to Crowe that the waiver was not appropriate. Id. at *8. The court noted: In the broader context, the decision to sign the waiver, even if it was not an appropriate one to make, was entirely rational. The government’s position was clear. If M. M. R. did not sign the waiver, she would not be able to enjoy the benefits of the joint defense agreement. These benefits were substantial and reasonable under the circumstances, particularly since M. M. R.’s counsel participated in her proffer. M. M. R.’s decision was also rational in the face of the prospect of long and costly litigation and the possibility that she might be in prison for a significant period of time if she did not cooperate with the government. Id. at *12.
Joint defence agreements are important and play a vital role in many litigation cases. Here are a few others:
United States v. Clegg, 742 F. 2d 585 (9th Cir. 1984).
United States v. Perez, 489 F.2d 51 (2nd Cir. 1973).
United States v. Jacquemin, 95 F. Supp. 2d 760 (N.D. Ind. 2000).
Hitachi, Ltd. v. Tatung Co., Ltd., 166 F. Supp. 3d 1155 (D. Id. 2015).
FBT Productions, LLC v. After Dark Films, 199 F.R.D. 503 (C.D. Cal. 2000).

Drafting a Joint Defence Agreement

When drafting a JDA the following steps should be followed (adhering to the best practices discussed above):

1. Identify the Participants

Most often the participants will include all counsel involved in the litigation if defense counsel is present — including government attorneys and outside investigators. However, third party consultants, document review, and forensic experts are also appropriate participants of a defense team. While everyone involved in the defense should be included in the JDA, the parties need not disclose their investigators, expert witnesses or consulting experts until expert reports and/or testimony are anticipated. In this regard, the parties should consider narrowing the definition of defense counsel to "all counsel participating in discovery as to witnesses, experts and documents." All parties involved should sign the JDA and a list of all parties should be attached as Appendix A. Appendix A should also contain a brief description of the matter and the participants.

2. The Relevance and Use of Privileged Information

The parties do not contain to waive or compromise the attorney-client, work-product, or other common law privileges by disclosure of privileged information among defense members. Privileged information just needs to be relevant to the defense of each other’s clients’ interests. Any party that has a direct interest in the outcome of the case should reserve the right to object to the use of privileged information if it is (or could be perceived to be) detrimental to its client.

3. Retention of Privilege

As discussed above, in order for the joint defense doctrine to apply, the parties must have a common interest in the purpose for sharing privileged information and use the information for the purpose of assisting in a common strategy to facilitate a defense. The primary requirement for developing and maintaining a JDA is the existence of a prospective joint trial or litigation strategy. This aspect can be hard to identify before the discovery phase of litigation — so thinking about why the parties have a joint strategy should be analyzed before entering into a JDA.

4. Limitations

Limiting the scope of the JDA is a good idea. Comparable defense strategy is a key component of the agreement. A joint strategy may include, for example, a common position on admissibility of evidence or the use of experts. Conversely, a JDA may be very narrowly tailored to share expert witnesses to avoid duplication of cost or document review. Often times JDAs are limited to a specific action or pending appeal at the instruction of the court. In addition, it is helpful to release parties from the JDA upon completion of the matter. Directly addressing the process for ending an agreement will prevent much disagreement later.

5. Acknowledgment of Inevitability of Disputes

Once the JDA is drafted, it should be shared with the other participants for the purpose of amending after review and comment. Sharing the draft and editing is an important step in the process. However, the parties may have divergent views that may be difficult to resolve. Because of this, the JDA should include alternate provisions to address those perspectives.

6. How to Handle Termination of the JDA

If any party to the JDA withdraws, the remaining parties should have the option to continue or terminate the JDA.

The Future of Joint Defence Agreements

The future trends in the use of JDAs is uncertain, but there are a few areas that may influence their use.
Technology- advances in technology and Internet applications will continue to play a role in JDAs. The ability to conference by phone and video as well as the accessibility of documents through cloud systems may result in a decrease in the perceived need to execute a JDA. With better technological capabilities, it may not be necessary for numerous lawyers to meet physically. However, the increased availability of documents will still provide concerns regarding protecting clients’ interests in the document sharing.
Cross cultural- interests in cross-border and global collaboration among lawyers and firms can produce different types of JDAs . There are data privacy and protection issues as well as issues concerning the legal ability to share information that may have a lot of effect on how JDAs evolve in the future. Again, technology will play a large role here, as firms execute JDAs with lawyers all over the world.
Regulatory- there may be more of a regulatory push towards JDAs which would require lawyers and law firms to enter into JDAs together to ensure that they are providing competent representation in regards to their work with electronic forms of technology, like cloud storage. There are also issues with the ethical representations between lawyers in JDAs that could be addressed in regulation and concern liability and potential sharing of confidential information not covered by the JDA. With more regulation, the potential for attorneys to share more of what they discover versus what they highlight may increase.