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.
- On September 4, 2018
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