The purpose of this email is to recall our discussions yesterday on the common interests of our customers on FIFA-related issues. We will work together in accordance with an agreement of common interest. My understanding is that there will be conditions similar to the last one we had, and we will be able to know if we have it in writing, specific details, etc. when you land. It has been effective since yesterday. [12] Common defence and agreements of common interest can be effective tools to promote client interests and reduce costs. The key is to do them right so that they themselves do not become the basis of a dispute. When considering the validity of a joint defence agreement, courts generally focus on whether the interests of the co-parties really coincide. For example, in a post-9/11 World Trade Center dispute, the U.S. District Court for the Southern District of New York refused to recognize the common interest privilege invoked by the tenants of the WTC and the employees of the insurance broker who had received coverage for the WTC. First, interviews with employees by corporate lawyers without explicit approval from a JDA are not subject to common defense privilege and may be referred by the company to the government as part of their cooperation. This is a standard concept reinforced by the Upjohn warning,[5] which immediately indicates to employees that there is no privilege between the management consultant and this person; Instead, the company retains privilege over all collected information. Even the presence of the employee`s lawyer does not confer a common defence privilege without express consent.
The conditions, scope and limits of the common defence privilege or common interest may vary considerably from jurisdiction to jurisdiction. State and federal courts differ as to whether and to what extent they recognize a common defence privilege or a privilege of common interest. A party wishing to invoke joint defence privilege must prove that: In this sense, the JDA applies only to communications in the presence of all counsel for the parties. Thus, two co-accused who speak privately without their lawyer would not expect their communication to be privileged. However, if a co-accused contacts another for explicit legal advice, or at the express direction of defence counsel, this conversation would be preferred. In a criminal investigation or prosecution, a Joint Defence Agreement (“JDA”) is essentially an agreement between two or more parties who have common interests and wish to maintain solicitor-client privilege for their communications. [2] Its interpretation is governed by the fundamental principles of the Treaty. The most important additional feature is that the JDA extends solicitor-client privilege and the protection of counsel`s work product to communications and documents exchanged between co-defendants (or, in the case where the investigation is still ongoing, parties in a similar situation). This allows lawyers for the accused to talk to each other without fear that the government will be aware of the content of these conversations.
Of course, not all cases in which clients and their lawyers want to share information with others and their lawyers involve litigation. In order to accommodate this possibility, many courts have extended the principles of the common defence privilege to the extrajudicial context. The defendants learned this the hard way in United States v. Krug. [8] In the Krug case, a written JDA was written by the co-defendants and their lawyers. After signing the agreement, the co-accused discussed issues related to their case in the hallway. The court ruled that the hallway conversations were not protected by the JDA and could be used as evidence against them during the trial. Joint defence agreements are not treaties that create rights chosen by the signatories, but are a written notice of the defendant`s invocation of common law privileges. [8] Therefore, joint defence agreements cannot offer greater protection than the legal privileges on which they are based. [8] “A common defence treaty aimed at extending [protection more extensive than the legal privileges on which it is based] does not specify precisely the protection that would be afforded to defendants who sign. In United States v. Stepney,[10] Unless the common defence privilege recognized in this circuit imposes a duty of loyalty on lawyers who are parties to a joint defence agreement, the duty of loyalty set out in the proposed agreement would have no effect other than to misinform defendants of the true extent of their rights.
[8] The common defence privilege did not impose a general duty of loyalty on all signatory defendants and, therefore, the duty of loyalty set out in the proposed common defence agreement had no effect other than to misinform the defendants of the actual extent of their rights. [8] “The proposed Joint Defence Agreement explicitly imposes not only a duty of confidentiality on the undersigned counsel, but also a separate general duty of loyalty to all signatory defendants.