Page 1 Page 2 Page 3 Page 4 Page 5 Page 6 Page 7 Page 8 Page 9 Page 105 Joint Defense (Continued from Page 1) Lawyers recommends that “common interest privi- lege” be used to refer to the doctrine, as that term includes “both claiming as well as defending par- ties and nonlitigating as well as litigating per- sons.”4 Nevertheless, many courts, including some in California, continue to use the “joint defense” and “common interest” terms interchangeably with respect to defendants in litigation.5 Whatever the name used to describe the doctrine, it is not typically considered an independent privi- lege, but rather an exception to the general rule that privilege is waived when information is dis- closed to a third party.6 The joint defense privilege operates similarly in both criminal and civil litiga- tion,7 and a joint defense agreement, simply put, defines the parameters of the joint defense privi- lege among codefendants. And while these agree- ments can provide many benefits to codefendants in a lawsuit, the significant dangers they can pose to both attorneys and their clients should not be overlooked or misunderstood. Joint defense agreements can benefit codefendants in an action by enabling their separate lawyers to exchange privileged information related to the common defense of all parties to the agreement, thereby increasing the efficiency of litigation. By combining their collective knowledge, expertise, and resources, co-defense counsel can significant- ly reduce the cost of litigation and avoid duplica- tive work by, for instance, exchanging information about the merits of the case, dividing responsibil- ity for discovery and pre-trial motions, sharing the cost of expert witnesses, and trading legal memo- randa. Joint defense agreements also can help co- defense counsel ensure that they develop a uni- form litigation strategy and take consistent defense positions to the benefit of all codefendants. Yet despite these advantages, participation in a joint defense arrangement can pose significant risks. For example, these arrangements may in- crease the likelihood of a conflict of interest, a waiver of privilege, or the inadvertent creation of an attorney-client relationship with another code- fendant. Accordingly, before agreeing to enter into a joint defense arrangement, practitioners should evaluate whether a joint defense strategy is necessary to effectively represent the client. In doing so, counsel should analyze all the potential theories of liability and the defenses available for each codefendant. This provides the added benefit of facilitating the attorney’s determination of whether a sufficient alignment of interests exists for the joint defense privilege to attach because merely being codefendants may not suffice.8 Prac- titioners also should carefully consider how enter- ing into a joint defense agreement will affect their ability to effectively represent the client, as well as how it will affect the client itself. Because partici- pation in a joint defense augments the risk that an attorney will encounter a conflict of interest, prac- titioners should carefully vet the other parties to ensure that any conflicts are addressed, including disqualifying conflicts that might arise in the fu- ture. The joint defense privilege does not require a writ- ten agreement to apply; indeed, a joint defense agreement may be verbal or “implied from con- duct and situation, such as attorneys exchanging confidential communications from clients who are or potentially may be codefendants or have com- mon interests in litigation.”9 Many practitioners who are comfortable with their co-defense counsel make a conscious decision to forego executing a written joint defense agreement, preferring the flexibility offered by a generalized verbal arrange- ment or wary that a written agreement might someday be subject to discovery by an adversary. But before electing not to execute a written joint defense agreement, practitioners should be fully aware of the potential hazards this might pose un- der the circumstances of their particular case. In most cases, a well-crafted document will help co-defense counsel avail themselves of the ad- vantages offered by joint defense agreements, while reducing the associated risks. Because the joint defense privilege only protects communica- tions related to the defense of all parties to the (Continued on Page 8)