It is no great secret that we are ardent defenders of the attorney-client privilege. In our view, the continued development of case law concerning the contours of the privilege is generally a good thing because it tends to make determining the availability of the privilege more predictable. Even when a case comes down that appears to turn the privilege on its head, or which seems to unfairly curtail the privilege in certain circumstances, in the end the proliferation of published decisions on the subject will enable us to better counsel our clients and protect our privileged communications with them from disclosure.

One of the areas where Pennsylvania privilege law is not yet mature concerns the scope and application of the “joint defense” (also called the “common interest”) privilege. If you have been in the litigation business for any length of time, you have more than likely at least heard of joint defense agreements, which are generally understood to extend the attorney-client privilege to information-sharing and developing joint litigation strategies with counsel for co-defendants. You might have a nagging question in your mind as to whether joint defense agreements can be oral, and you may not know for sure whether and to what extent co-defendants have to share a readily definable common interest before they can enter into a valid joint defense agreement.

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