Attorneys representing different parties sometimes need to collaborate and share information to further the representation of their clients. When that information would otherwise be protected by the the work-product doctrine or attorney-client privilege, the benefits and potential risks associated with joint defense privilege (also called the common interest doctrine) should be considered.
The Potential Advantages
Joint defense privilege can allow attorneys to work more efficiently, avoiding the need to duplicate discovery and litigation preparation efforts. Attorneys who are representing different clients in the same matter can also use joint defense privilege to create more consistency in their defense strategies, coordinate and streamline resources, and reduce costs.
Important Considerations and Potential Disadvantages
Using joint defense privilege may give rise to an implied attorney-client relationship with the other defendant(s); this can be addressed in a joint defense agreement among the parties and attorneys.
Another thing attorneys should be aware of is that joint defense privilege creates a fiduciary relationship between an attorney and the defendants represented by the other attorney(s), so that the attorney cannot divulge or use information gleaned through the joint defense against those other defendants. Attorneys can protect themselves by disclosing the potential conflicts and permitted uses of information in a written joint defense agreement.
A third caveat is that joint defense privilege is also more easily waived and isn’t as broad as attorney-client privilege. Attorneys also lose some control over the information shared with other defense attorneys. Because of this, if there is reason to believe that the other party’s interests aren’t aligned with your client’s interests, joint defense may not be worth the potential risks.
Mitigate Risk When Using Joint Defense Privilege
Joint defense agreements can be cost-effective and efficient tools for providing clients with the representation they deserve, but they are not without risk. Attorneys who are aware of the potential risks of joint defense can mitigate those risks through careful planning, drafting, and execution of agreements to protect their clients’ interests, and their own.
Baer Reed provides a variety of legal support solutions, including privilege review, to busy law firms and corporate legal departments. To learn more, contact us online or call us at 888-433-1990 today.
Mr. Reyes graduated with honors from the Ateneo de Manila University, where he received the Procter and Gamble Student Excellence Award. He obtained his Juris Doctor degree from the Ateneo de Manila School of Law. During law school, Mr. Reyes was part of the Philippine delegation to the Willem C. Vis International Commercial Arbitration Moot held in Vienna, Austria. He was also a member of the Ateneo Society of International Law and the St. Thomas More Debate Society. He completed his internship at the Public Attorney’s Office. He wrote a thesis entitled: “To Kill A White Elephant: An Analysis of the Fiduciary Exception to the Corporate Attorney-Client Privilege”. Mr. Reyes is admitted to practice law in the Philippines and the State of New York.
Ms. Lardizabal-Manzano is a graduate of San Sebastian College-Recoletos, where she earned her B.A. in Political Science. In 2003, she received her law degree from Lyceum of the Philippines and was admitted to practice law in 2004.
Matthew Hersh earned a B.A. in Political Science from Columbia University in 1990 and graduated cum laude from Georgetown University Law Center in 1999. He also holds a master’s degree in international relations from the Georgetown University School of Foreign Service.
Cap. Avi Levak (Res. IDF) graduated from from Israel’s prestigious Ben-Gurion University of the Negev with a Bachelor of Science in Computer Science and Mathematics. He is also a Leadership and Communication coach trained in TuT coaching by Alon gal in Israel. Avi specializes in high-level, in-depth analysis of business and client needs, within systems and software strategy and architecture.
Ms. Tyler graduated cum laude from Georgetown University and received her law degree, cum laude, from Georgetown University Law Center. During law school, she interned at the United Nations Economic Commission for Europe. She also worked on The Tax Lawyer journal and was a member of the award-winning Barristers’ Council Mock Trial Team. Ms. Tyler is admitted to practice law in the State of California and the District of Columbia.
Ms. Cruz-Anonuevo graduated cum laude and top nine in her batch from Miriam College with a degree of Bachelor of Arts in InternationalStudies. She obtained her Juris Doctor degree from Ateneo de Manila University School of Law in Rockwell. During law school, she interned in Rivera, Santos, Maranan & Associates. She was also part of Ateneo’s Labor Law Bar Operations. She wrote her thesis on, “Stealing Privacy: Limitations on Media’s Photographic Invasion.,” Ms. Cruz-Anonuevo is admitted to practice law in the Philippines.
Ms. Aquino-Batallones obtained a Bachelor of Arts degree in Development Studies (with Minors in Global Politics and Hispanic Studies) from the Ateneo de Manila University. In 2011, she received her Juris Doctor degree from Ateneo de Manila University School of Law. During law school, she interned at Romulo Mabanta Buenaventura Sayoc & de los Angeles then became an intern of Ateneo Legal Services Center’s Clinical Legal Education Program.
Mr. De Guzman graduated from San Beda College with a degree of Bachelor of Arts Major in Economics and received his law degree from San Beda College of Law. He is multilingual and is fluent in three languages: Chinese, Filipino, and English. He was admitted to the Philippine Bar in 2003.