As former federal prosecutors and current white-collar defense lawyers, we have watched agog the unfolding story of Paul Manafort’s criminal lawyers reportedly continuing in a joint defense agreement (JDA) with President Donald Trump after entering into a cooperation agreement with Special Prosecutor Robert Mueller, reportedly to the extent of sharing with Trump’s lawyers information gleaned through the debriefings that were occurring as part of his ostensible cooperation. See “Manafort’s Lawyer Said to Brief Trump Attorneys on What He Told Mueller,” NY Times (Nov. 27, 2018). The saga provides a salutary reminder that JDAs pose certain risks if not handled properly.

A JDA or “common interest” agreement allows parties with similar legal interests who are involved in an investigation or legal proceeding to share information with each other without waiving the attorney-client privilege or work product protection. Such agreements enable parties to coordinate strategy, pool resources, reduce costs, and enhance access to information. Done right, such agreements are a real boon to defense counsel. Done wrong, such agreements can lead to conflict issues, attorney disqualifications, the admission of damaging admissions by your client, and a host of other problems.

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