For lawyers, this includes managing risks such as obligations to non-clients who are parties to the joint defence agreement. It is recommended that any joint defence agreement contain provisions that it should not be used as a basis for attempting to disqualify another lawyer. This scenario shows that each lawyer who is a member of a joint advocacy group necessarily has great confidence in the other lawyers. So, if you`re thinking about such an agreement, make sure you ”know” the other lawyers well. A civil case, Essex, illustrates this point. There, a New Jersey District Court judge issued an order disqualifying all members of a law firm from a joint defense group. The decision followed a finding that one of the companies had previously represented the plaintiff in related cases. After this representation, one of the defendants instructed the firm to defend her in another action. The defendants and their defense lawyers reached an agreement on the joint defense. As a result, the court found that an implied relationship between counsel and client had been created between all counsel in the Joint Defence Group and all clients. In addition, the judge held that this relationship gave rise to an irrefutable presumption that each company was aware of the applicant`s confidential information. Essex Chemical Corp.c.
Hartford Accident and Indemnity Co., 975 F. Supp. 650 (D.C.N.J 1997) set aside by the District Court Judge in Essex Chemical Corp.c. Hartford Accident and Indemnity Co., 993 F. Supp. 241 (D.C.N.J 1998). While most jurisdictions do not require a formal written agreement to recognize a common defence privilege, it is preferable to document the scope, duration, limits and parties to the common defence privilege. In the Stepney case, several defendants were charged with violating several federal drug and gun laws. In an effort to effectively prepare coherent defenses, the defense attorney tried to conclude a JDA. It was about the court. In particular, the court considered the large number of defendants, their lack of familiarity with each other and the many and varied criminal charges involved in the case.
The court also rightly expressed concern that an accused had been murdered. Since the existence of common interests is not as obvious as in the context of litigation, it is particularly important that clients and lawyers document the beginning, duration, scope, limitations and termination of an agreement of common interest. The beginning is important so that in the event of subsequent disputes, the parties can determine exactly when the common interest began. Other courts have interpreted a common interest more broadly, but the risk remains that the courts will find that the interests of the parties are not sufficiently ”common” or ”common” to recognize a joint defence agreement. The best practice is to articulate common legal interests, including positions, defences and potential liabilities. In the Stepney case, the Court, which took a particularly proactive stance, required that the common defence agreements be in writing and submitted to the Court for consideration in camera before they entered into force. In fact, the court raised many sua sponte questions to control the indictment by avoiding a withdrawal or disqualification at the last minute. To this end, the court reviewed the existing agreements in the case, analyzed them, and ordered the review of the agreements in accordance with the court`s decision. In order to avoid disqualification issues such as those in henke, the court ordered that the agreements be amended to include waiver provisions as well as clauses that respect the scope and nature of the relationship between the various clients and lawyers. Id.
at 1086. In addition, Judge Patel noted that there was no duty of ”loyalty” in the context of the joint defense and rejected the rule of automatic disqualification of deputies, stating that ”there is no conflict of interest unless the lawyer has actually received relevant confidential information.” Id. at 1080-81 (emphasis added). Joint defense agreements can lead to unforeseen conflicts and proxy disqualification issues. For example, most lawyers are aware that when lawyers change law firms, disqualifying conflicts can arise when former clients of the lawyer oppose the new law firm. See Frazier v. Superior Court, 97 Cal. App. 4th 23, 29-30 (2002).
But you may not be aware that joint defence agreements significantly increase this risk. In fact, the risk is twofold: a conflict can arise when a law firm involved in a joint defense agreement hires a new lawyer who has previously represented a party opposed to a member of the joint defense group. If the new lawyer worked on issues involving joint defense agreements during his stay at a previous law firm, adversity between the new law firm and members of the lawyer`s former joint defense group may lead to a disqualifying conflict in other cases. As a starting point, many courts distinguish between the privilege of common defence and the privilege of the common good, noting that the former is narrow and arises from actual litigation, while the privilege of the common good is broader and does not require an ongoing prosecution. Many other dishes use the terms almost interchangeably, with no significant distinction between the two. When considering the validity of a joint defence agreement, courts generally focus on whether the interests of the parties are genuinely aligned. For example, in a dispute over the World Trade Center after 9/11, the U.S. District Court for the Southern District of New York refused to recognize the common interest privilege claimed by the leaseholders on the WTC and the employees of the insurance broker who received coverage for the WTC. .