Common defense agreements in criminal cases: Management of privilege

Multi-composed criminal investigations have a classic prisoners’ dilemma. The parties would benefit from the cooperation between them, but they are stimulated to become opponents, most often due to the lack of information exchange and the lack of confidence and transparency. Fortunately, the law provides an instrument: the common interest privilege, which allows the parties to share information in the help of their common defense, while maintaining the privileges of lawyer and working on shared information.

However, even the closest allies can return later against each other, which leads to a separation of the common interest. Then what are the information that was shared while the parties were united? And what duties could advise for one side due to another because of this sharing?

These questions and others are best addressed at the beginning of a common defense by a written agreement of common defense. The experienced counselor can guide the defendants through these problems, thus maximizing the benefits of a common defense, while reducing the risks.

How do we get in?

Practitioners should first evaluate whether their customers actually have a common interest and should memorize this interest in the written JDA. However, prudence is justified here, because the courts are divided if the JDA text itself is privileged, so the lawyer should assume that JDA could be subject to subsequent disclosure.

The counselor and their clients should also establish procedures for adding additional parties to JDA. These provisions should approach the nature of the necessary consent and how the consent will be documented. Sometimes, the parties cannot want to enter global jda, which can lead to certain defendants (especially corporate or targets) who are in several JDA. The counselor should take into account how they will ensure that the information shared information is kept from participants in any other JDA and should evaluate whether JDAs should include additional provisions to approach this issue.

How do we go out?

Equally important are the procedures for withdrawal and termination. Once the parties become opponents, their privilege of common interest disappears, and new information shared between them loses their lawyer and the privilege of the work product. Therefore, JDAs should include specific provisions on how the parties can leave JDA, including when this termination is mandatory, what notification is required and what materials should be returned. In addition, the agreement should specify that the information that has been shared during the common defense remain subject to the agreement, despite the termination of a part of JDA (with an important exception, mentioned below).

There are several reasons why one part could decide to leave a JDA, but it is most common when that part has established that its interest is best served by cooperating with the government. The withdrawal under these conditions is mandatory, and the lawyer should take into account what kind of notification provisions are suitable for cooperative customers.

The lawyer of the cooperative client must also continue with caution when interface with the government to ensure that the customer and counselor cooperate does not reveal to the Government privileged information. Doing this is complicated by the fact that JDAs usually prohibit the signatories from revealing even the existence of any third party, including the Government. The lawyer of cooperative cooperatives transformed into co-insults will have to consider carefully how to draw lines around their client cooperation, without revealing privileged information.

How do we avoid the disqualification of the lawyer?

The common defenses are full of potential to disqualify the lawyer. Most often, disqualification issues arise when the courts of the courts find that a common defense strategy has created an implicit lawyer-client relationship between lawyer and co-insult or when the courts find that a lawyer for a co-insult owes trust duties to another co-president. If a co-insult, then the government witness transmits, the lawyer may be prevented from being adverse to the former co-insult.

These problems cause written jda to be critical. The privilege of common interest works automatically and does not require any written agreement itself. But the potential creation of the fiduciary or ethical duties between the lawyer of a co-insult and others can plant me of land best disarmed by various JDA provisions.

The guiding principle for these provisions is the protection of the counselor to defend his client and to maintain independence from this representation, regardless of whether other JDA members also opt to cooperate with the Government. To this end, the JDA should be signed by the counselor and their customers, leaving no doubt that the customers examined the agreement and agreed in his terms.

In this regard, JDA should state that each counselor has advised his client about JDA terms and that the counselor and customers agree that clients understand the terms and have concluded the knowledge and voluntary. In addition, JDA should specify that each client agrees that he is represented only by his own lawyer and not by a lawyer for any other client. JDA should explicitly make the fact that the counselor for each client owes confidence only to his own client and no other. Customers should expressly give up any statement that any other lawyer owes their duties. In addition, the agreement should provide that the withdrawal of the parties renounces any request for conflict of interest against the lawyer for the remaining parties and that the withdrawals will not seek to disqualify the lawyer for any remaining party.

Finally, JDA should present the limited circumstances in which a part that has withdrawn from JDA can use its privileged information against it. Specifically, the JDA should provide that a JDA signatory who subsequently withdraws from the agreement and confesses against another JDA member consents to the use of information during a cross -examination that was previously shared by that part while they were members of the common defense. These provisions are not designed to be punitive against cooperators. Instead, they are necessary, because the lawyer was disqualified to represent the defendants in which such a representation required a cross examination of the former JDA members, but if the lawyer’s cross -examination was prevented by the JDA obligations that prevented a complete and vigorous defense. Thus, JDA should offer, for example, a witness can be examined crossly with inconsistent preliminary statements during JDA, and the agreement should expressly provide for the parties to consent to such use of shared information.

Other key provisions

JDAS should also clarify that the parties keep their right to share their own information with third parties and that the exchange of information that is not privileged (such as facts) does not create privilege towards this information. In addition, JDAS should expressly provide that the parties to JDA are not obliged to share any information; Customers and their counselor keep their right to determine independently when they are in their interest to do so.

The privilege of common interest helps the co-insults to navigate their prisoner’s dilemma, but does not solve the problems that fall when the common defenses break down. A written JDA-with the correct provisions asked the parties to use their common interest privilege, while protecting the choice of the client as a reliable counselor.