COMMON PRACTICE among lawyers representing separate clients in litigation or criminal investigations is to discuss with one another privileged information – including both factual information and strategy – in attempting to prepare a unified defense. This sharing of privileged information is done pursuant to a “joint defense agreement,” or a “common interest agreement,” as they are sometimes known, which serves to insulate the exchange of information and to prevent waiver of the applicable attorney-client or work-product privilege. To many lawyers, entering into a joint defense agreement with lawyers for other parties has become a routine and vital practice that appears to bring only benefits with little or no downside risk.

The recent proliferation of high-profile governmental investigations, and the attendant securities litigation and bankruptcy proceedings, make it critical for lawyers representing the companies and their officers and directors in those proceedings to understand and evaluate the pros and cons of entering into such agreements. Moreover, it is essential for defense counsel to recognize the potential limitations of joint defense agreements reflected in several recent decisions. This article first describes the essence of a typical joint defense agreement. It then discusses the recent decisions that raise concerns about the reliability of such arrangements to protect privileged information. Finally, the article concludes by discussing important considerations that should be evaluated by counsel prior to entering into a joint defense agreement.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]