Page 1 Page 2 Page 3 Page 4 Page 5 Page 6 Page 7 Page 8 Page 9 Page 108 Joint Defense (Continued from Page 5) disclosure, a written agreement can help avoid am- biguity as to whether a given communication is re- lated to a common defense effort by clearly defining the scope of the various attorneys’ agreement to share confidential information. Having this scope clearly defined in a written document is also advan- tageous because an agreement to share information need not encompass an entire lawsuit or global joint defense strategy, but may instead be limited to spe- cific issues in a case. It can therefore be imperative that a joint defense agreement clearly outline the goal of the joint defense, as well as the information that can be shared in its pursuit. And because some courts have taken the view that “generally, a joint defense privilege begins on the date the agreement was executed,”10 in most cases a joint defense agree- ment should be in place before any confidential in- formation is shared with other codefendants. Despite the existence of a joint defense agreement, all information shared between co-defense counsel is not protected merely because an agreement is in place.11 Co-defense counsel should be cognizant that only information related to the common defense of all parties to the agreement is protected.12 Co- defense counsel deciding whether to enter into a joint defense agreement also should keep in mind that the privileged nature of information shared pur- suant to the agreement can be lost if the parties to the agreement subsequently become adversaries in litigation.13 Thus, if co-defense counsel elect to en- ter into a joint defense agreement, the agreement should provide that all communications made pursu- ant to the agreement will remain confidential in the event of subsequent adverse proceedings.14 In addi- tion, the agreement should also provide that any cross-claims must be brought after a final resolution of the instant action is reached. The scope of a joint defense agreement should usu- ally be no more broad than necessary to carry out the shared defense strategy. Joint defense agree- ments typically should define the goal of the joint defense and the information that may be shared in furtherance of that goal as narrowly as possible. Once the agreement is in place, practitioners should share only information that is necessary to further the joint defense effort and no more. Co-defense counsel should be acutely aware not only of what information they share with a joint defense group, but also what information the joint defense group shares with them. The primary reason for this is simple: the less confidential information a lawyer receives about his or her client’s codefendants, the lower the likelihood a disqualifying conflict of inter- est may arise in the future. Practitioners should ad- dress the resolution of conflicts in any joint defense arrangement, and should also consider an agreement to bar the disqualification of counsel based on a rea- lignment of the parties. Practitioners entering into a joint defense relation- ship also should make clear that each codefendant is solely represented by its own counsel because courts have held that an implied attorney-client relation- ship arises between an attorney participating in a joint defense and his or her client’s codefendants.15 Under these circumstances, due to a presumption that the attorney received confidential information in connection with the prior joint defense effort, an attorney might face a disqualifying conflict of inter- est if the attorney subsequently is adverse in litiga- tion to another party to the prior joint defense ar- rangement. However, most courts instead hold that an attorney-client relationship does not arise be- tween parties merely by participating in a joint de- fense agreement, and thus counsel will be disquali- fied in a subsequent action against a party to the pri- or agreement only if the attorney was actually privy to confidential information.16 Nevertheless, most courts also hold that an attorney has a fiduciary obli- gation to the other members of a joint defense agreement, which can give rise to a disqualifying conflict of interest.17 This underscores the need for attorneys engaged in a joint defense strategy to avoid receiving any more information than is neces- sary to carry out the joint defense effort. In addition, even though a party generally may not unilaterally waive the joint defense privilege, practi- tioners in joint defense relationships should make clear that no party may disclose privileged (Continued on Page 9)