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Pitfalls Of Joint Defense Agreements

15 Dec

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Even the most diligent practitioner is vulnerable to the discovery of irreconcilable conflicts of interest as a result of the agreement. Conflicts arising from a common defence agreement can arise without fault from the lawyer or the law firm in conflict. Many potential problems can be avoided by carefully developing common defence agreements. The clauses to be considered are: and this is only to mention a few possible clauses, because the details of the different agreements will be very different depending on the nature of the case (i.e. civil or criminal), the facts and the unique objectives of the parties. In addition, what you have introduced into the agreement can significantly avoid the risk of disqualification. For these reasons, it is strongly recommended to consult a practitioner experienced in the development of such agreements. While common defence agreements can be helpful, it is important 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. 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. ShutterstockThe former federal prosecutor and current economic lawyers have observed the emerging history of Paul Manafort`s lawyers, who were allegedly prosecuted in a joint defense agreement (JDA) with President Donald Trump after entering into a cooperation agreement with special prosecutor Robert Mueller, as information was exchanged with Mr. Trump`s lawyers by the debriefings that took place as part of his alleged cooperation. , have been won. See “Manafort`s Lawyer Said to Brief Trump Attorney on What He Told Mueller,” Ny Times (November 27, 2018). The saga is a salutary reminder that JDAs present certain risks if they are not treated properly. A JDA or “Common Interest” agreement allows parties with similar legal interests involved in an investigation or legal proceeding to share information without waiving solicitor-client privilege or the protection of work products. These agreements allow the parties to coordinate the strategy, pool resources, reduce costs and improve access to information. Well done, such agreements are a real blessing for defence counsel. If done wrong, such agreements can lead to conflict problems, disqualifications from lawyers, admissions of prejudicial confessions from your client, and many other problems.

To qualify for the common interest rate rule, the parties must demonstrate (1) that they have a legal and non-commercial interest; and (2) the data are provided as part of the formulation of a common legal strategy. See U.S. and Swimmers, 892 F.2d 237, 244 (2d Cir. 1989); In re Teleglobe Communications, 493 F.3d 345, 364-65 (3d Cir. 2007). The common interest doctrine applies even when no litigation is pending.

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