Joint Defense Agreements: A Primer on the Potential Risks and Benefits (2023)


No good discussion about JDAs begins without first discussing the common interest doctrine; a concept breathing life into all JDAs. The common interest doctrine (sometimes referred to as the joint defense privilege) is an extension of the attorney-client privilege. It allows parties sharing a common interest in defeating a mutual legal opponent to freely share information with each other without worry of waiving the attorney-client privilege as to their communications.

In Oregon, for civil cases, the doctrine is conveniently codified under ORS 40.255, OEC Rule 503(2)(c)—extending the attorney-client privilege to communications "by the client or the lawyer to a lawyer representing another person in a matter of common interest."

In federal courts, the Federal Rules of Evidence (FRE) require application of common law attorney-client and common interest privileges in federal criminal cases. See FRE 501. Thus, in the Ninth Circuit the common interest doctrine applies where (1) the communication is made by separate parties in the course of a matter of common interest; (2) the communication is designed to further that effort; and (3) the privilege is not waived. See Hunydee v. United States, 355 F2d 183, 185 (9th Cir 1965).

Key to fully understanding the scope of the common interest doctrine, is grasping how courts interpret the term "common interest." For example, in Oregon, to establish that a common interest exists, parties only need to show that their aligned interests are shared or similar; as opposed to identical.[1]

Even with such guidance, however, it can still be difficult to ascertain what each parties' respective interest is and, even more importantly, whether a common interest exists. To ensure there is not mistake, cooperating parties in the throes of litigation, or anticipating it, often enter into JDAs.


Besides clearly delineating the parties' common interest, JDAs provide a host of other benefits and cures—often utilized to facilitate efficient, coordinated, and cost-effective case preparation. It should be understood, however, such agreements are not without complication and risk. To support that point, the following case summaries have been compiled to illustrate just how easy it is to mishandle a JDA.

A. Preparing for the Defector Co-Defendant

A common issue associated with JDAs is the risk of a co-defendant deciding to cooperate with the government. According to the US Sentencing Commission, in 2017, approximately 97% of federal criminal cases ended in a guilty plea.[2] And around 11% of those total cases also saw a downward departure for substantial cooperation.[3] Most notably, for the typical white collar case, substantial cooperation often resulted in significantly less time than that suggested by the Guideline minimum.[4] Thus, it is not a question of, whether a co-defendant will cooperate with the government, but rather, when they will cooperate. For that reason, vigilant counsel should always be prepared for the inevitable co-defendant schism because failure to do so can be ruinous.

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Consider United States v. Henke. In Henke, Silicon Valley executives were charged with conspiracy and financial fraud.[5] Initially, the executives, as co-defendants, worked together under a JDA. After some time, however, one of the executives began cooperating with the government. In exchange for a lesser charge, the executive agreed to testify against his co-conspirator.

The executive's trial testimony contradicted statements he'd made while a participant to the JDA. Defense counsel, however, refused to explore those contradictions through cross-examination for fear of violating the JDA. His client was convicted.

On appeal, however, the conviction was set aside and a new trail ordered, The Ninth Circuit noted that the conflict of interest impaired the defendant's constitutional right to cross-examine a witness who testified against him.

B. Accepting the Court's Redline

Dealing with a similar dilemma to that in Henke, the court in United States v. Stepney[6] attempted to sidestep all potential conflict of interest issues arising from JDAs among numerous defendants. By doing so, Stepney highlighted another risk associated with JDAs—particularly, the risk of the court dictating the terms of a JDA before its execution.

In Stepney, multiple defendants had been charged with violation of several federal drug and weapons laws. In an effort to prepare coherent defenses efficiently, defense counsel sought to enter into a JDA. This concerned the court. Specifically, the court was concerned with the large number of defendants, their lack of familiarity with each other, and the numerous and varied criminal charges involved in the case. The court also was rightly disturbed by the fact that one defendant had been murdered.

Out of concern for proper court proceedings, defendant safety, and defendants' constitutional rights, the court—sua sponte—ordered defense counsel to submit their proposed JDA to the court for in camera review. The court noted that pursuant to its supervisory powers, it had substantial authority to oversee its own affairs to make sure justice was served. In support of that point, the court stated:

When a party to a joint defense agreement decides to cooperate with the government, the potential for disclosure of confidential information also threatens other defendants Sixth Amendment rights. (citations omitted). Federal courts have an independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them. Courts also have an independent interest in protecting a fairly-rendered verdict from trial tactics that may be designed to generate issues on appeal. Given the high potential for mischief, courts are well justified in inquiring into joint defense agreements before problems arise.[7]

Following its review of the JDA, the court ordered the following:

  • All JDAs had to be in writing, signed by defendants and their attorneys, and submitted to the court for review prior to going into effect.
  • Each JDA submitted had to explicitly state that it does not create an attorney-client relationship between an attorney and any defendant other than the client of that attorney. Additionally, no JDA could purport to create a duty of loyalty.
  • Each JDA had to contain provisions conditionally waiving confidentiality by providing that a signatory attorney cross-examining any defendant who testifies at any proceeding whether under a grant of immunity or otherwise, may use any material or other information contributed by such client during the joint defense.
  • Each JDA had to explicitly allow withdrawal upon notice to the other defendants.

Stepney is a cautionary tale of the lengths the court, on its own accord, may go to in order to ensure court proceedings and defendants' rights are upheld and protected. When considering entering into a JDA, counsel should be aware of how the relationship between co-defendants and the factual circumstances of a particular case could prompt a court to exercise its ability to review and edit a proposed JDA.

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C. Unprotected Hallway Discussions

Counsel should also consider the degree to which certain communications by parties under a JDA are protected. For example, JDAs cannot protect communications that aren't, in the first place, covered by the attorney-client privilege.

Defendants learned that the hard way in United States v. Krug.[8] In Krug, a written JDA was entered into by co-defendants and their lawyers. After executing the agreement, co-defendants engaged in a hallway discussion about topics related to their case. The court ruled that the hallway discussions were not protected by the JDA and could be used as evidence against them during trial.

According to the court, the hallway communications did not serve the interests that justify the privilege. For example, the communications occurred outside the presence of any lawyer (even though, as the court notes, the lawyers were standing nearby) and were not made for the purpose of obtaining legal advice. The court characterized the communications as merely a "hallway discussion [consisting] of one member of the JDA conveying his independent, non-legal research to another member of the JDA while noting he had sent the same research to his attorney."[9] Moreover, the court noted that "the mere fact that the communications were among co-defendants who had joined in a joint defense agreement was, without more, insufficient to protect the statements from disclosure."

And relating the discussion back to Oregon, it is worth mentioning that a court applying Oregon law to the factual circumstances of Krug would likely have come to the same conclusion as the court in Krug. As mentioned above, OEC 503 does not extend attorney-client privilege to communications between co-defendants themselves. For communications to be protected under the rule they must be:

  • By the client or the client's lawyer to a lawyer representing another in a matter of common interest; and
  • Be made for the purpose of effectuating legal representation for the client.

D. The Oral JDA: Taking Co-Counsel's Word for It

There is no rule that requires parties to a JDA to memorialize their agreement in writing; indeed, many JDAs are oral. Participants who insist on oral agreements, however, should appreciate the risk involved. Namely, the risk that the court may decide a JDA does not exist.

This happened in United States v. Weissman.[10] In Weissman, both the named defendant and his corporation were being investigated for securities fraud. Prior to trial, Weissman, his counsel, and counsel for the corporation met to discuss their legal strategy. During that meeting, Weissman made incriminating statements and damaging admissions, many of which were notated in memorandum format by the corporation's counsel. Later, those meeting notes were provided to the government.

Weissman invoked the joint defense privilege to ensure his own admissions would not be used against him. To prove his right to the privilege, Weissman's lawyer testified that, at the beginning of the meeting, he asked corporate counsel to agree that the meeting would take place pursuant to a JDA. According to Weissman's lawyer, corporate counsel agreed. Corporate counsel, however, had a different recollection of the meeting, and stated that no JDA was ever discussed.

The court sided with corporate counsel, concluding that there was no agreement and denied relief—Weissman's incriminating statements were not privileged and could be used against him at trial.

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E. When "All for One" is not "One for All"

There will be instances when a co-defendant attempts to monopolize the direction of legal strategy under a JDA solely to benefit themselves. Collaborating defense counsel should be weary of those situations, as a court may find that there is no JDA under such circumstances.

This happened in United States v. Napout.[11] There, Napout, former president of the South American Football Confederation ("CONMEBOL"), and CONMEBOL were being investigated by the government for fraud associated with the International Federation of Association Football (or "FIFA"). Around the same time, Napout, in his personal capacity, was under criminal proceedings, which included claims alleging he had harmed CONMEBOL.

Napout hired separate counsel for himself and CONMEBOL. He did this so that nothing occurring in his criminal case would be affected by the FIFA investigation. To ensure no complications would arise, counsel for Napout and CONMEBOL entered into a JDA during a telephone discussion. The discussion was memorialized in an email exchange the next day, with CONMEBOL's counsel writing:

The purpose of this email is to memorialize our discussions yesterday concerning our clients' common interests in the FIFA-related issues. We will cooperate pursuant to a common interest agreement. I understand it will have terms similar to the last one we had, and we can work out whether to have it in writing, specific details, etc. when you land. It is effective starting yesterday.[12]

During the course of the FIFA investigation, the government acquired certain records and communications between Napout and CONMEBOL's counsel. The government sought to use the information against Napout in his criminal case. This prompted Napout to assert his privilege over the documents.

The court concluded there was no JDA, or common interest privilege, protecting the information. Significant to the court's determination was the obvious conflict of interest between Napout and CONMEBOL. As the court explained, it had a difficult time reconciling "Napout's interest as a target of the government's investigation with CONMEBOL's opposing interest as a purported victim of the crimes alleged in [Napout's] indictment."[13] With no privilege identified, the government was free to use the information against Napout.


Based on the foregoing, overly cautious counsel may conclude that a JDA is simply never worth the hassle. Instead, the hope is that by becoming more familiar with stories of JDAs gone awry, all counsel will be able to appreciate the very real risks, complexities, and concerns associated with JDAs. That way the choice to enter into one, or forgo the opportunity, will be informed and deliberate, and most of all with the best interest of the client in mind.

[1] See Port of Portland v. Oregon Ctr. for Envtl. Health, 238 Or App 404, 414, 243 P3d 102, 109 (2010), rev den, 350 Or 230 (2011) ("OEC 503(2)(c) suggests that the interest between parties must be shared, but not necessarily identical.").

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[2] US Sentencing Commission ("USSC"),

[3] USSC,

[4] USSC, (noting white collar crimes such as larceny, fraud, embezzlement, forgery/counterfeiting, bribery, tax, and money laundering had a median percent decrease from Guideline Minimum of greater than 50%).

[5] 222 F3d 633 (9th Cir 2000).

[6] 246 F Supp 2d 1069 (ND Cal 2003).

[7] Id. at 1077–78.

[8] 868 F3d 82 (2d Cir 2017).

[9] Id. at 87.

[10] S1 94 CR. 760 CSH, 1996 WL 737042 (SDNY Dec 26, 1996).

[11] 15CR252S1PKCRML, 2017 WL 980323 (EDNY Mar 10, 2017).

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[12] Id. at 2.

[13] Id. at 4.


What are the benefits of joint defense agreement? ›

It allows parties sharing a common interest in defeating a mutual legal opponent to freely share information with each other without worry of waiving the attorney-client privilege as to their communications.

What are the risks of joint defense agreement? ›


Joint-defense agreements can give rise to unanticipated conflicts and vicarious disqualification issues. For example, most attorneys are aware that when attorneys change law firms, disqualifying conflicts can result when former clients of the attorney are adverse to the new law firm. See Frazier v.

What is the difference between a joint defense agreement and a common interest agreement? ›

As a starting point, many courts distinguish between the joint defense and common interest privilege, determining that the former is narrow and arises from actual litigation, while the common interest privilege is broader and does not require litigation to be pending.

What is a joint defense agreement for plaintiffs? ›

A sample joint defense and confidentiality agreement (JDA), which allows parties with common legal interests related to pending or anticipated federal civil litigation to share information without waiving the attorney-client privilege, work product protection, or other applicable privilege or protection.

Is a joint defense agreement necessary? ›

No written agreement is generally required to invoke joint defense privilege.” And, although “privileges should be narrowly construed and expansions cautiously extended,” courts have found that an oral joint defense agreement may be valid.

Should you tell your defense attorney everything? ›

Talking to Your Attorney About the Case

Most (but not all) criminal defense attorneys want their clients to tell them everything—the good, the bad, and the ugly—because an attorney cannot defend against what he or she does not know.

What are the advantages of joint representation? ›

Establishing a joint representation can ensure that a matter gets the best attention possible through all stages of the litigation process. In addition, law firms may also have different expertise about the legal matters involved in a lawsuit. Many litigation matters involve different areas of the law.

What is the scope of joint defense agreement? ›

The “joint defense” privilege allows one group of clients and their counsel to communicate with another group of clients and their separate counsel—all without allowing their common adversary (the plaintiff) to discover those communications.

What are three problems defense attorneys face? ›

Despite the potential for high pay and job autonomy, defense lawyers face a number of challenges in their roles, including negative public perception, demanding clients, overwhelming evidence, time demands and stress.

What is joint defense or common interest privilege? ›

Common interest privilege, also known as the joint defense privilege, is an extension of attorney-client privilege that protects the compelled disclosure of communications between two or more parties and/or their respective counsel when the parties are allied in a common legal interest.

Can a joint defense agreement be retroactive? ›

[25] Again, even memorialized joint defense agreements typically cannot function retroactively. In United States v. Shaeffler, for example, the Second Circuit sought to evaluate whether a group's common interest was of a sufficiently legal nature to warrant common interest protection.

What is common interest defense privilege? ›

The common interest privilege is “an extension of the attorney client privilege.” “It serves to protect the confidentiality of communications passing from one party to the attorney for another party where a joint defense effort or strategy has been decided upon and undertaken by the parties and their respective counsel ...

How often do plaintiffs win at trial? ›

The vast majority of cases do settle — from 80 to 92 percent by some estimates, Mr.

What happens when joint attorneys disagree? ›

If a decision by attorneys must be joint, then unless there is unanimous agreement no decision can be made. However, if an attorney who is allowed to act severally makes a decision, that decision will be valid even if it causes conflict with the other attorneys.

Do plaintiffs or defendants win more? ›

In contract cases, plaintiffs won in the majority of trials for all case types except subrogation (28%), which involves an insurance company seeking to recover the amount paid on behalf of a client.

Can Defence lawyers refuse a case? ›

We are not allowed to refuse to represent someone because we do not like what they say or even if we do not like them personally. We advise our clients on the strengths of the case against them and on their instructions, and we give honest advice on whether they are likely to be believed.

What is the purpose of a Defence attorney? ›

What does a defence lawyer do? A defence lawyer is a lawyer who represents a person charged with a criminal offence. It is the defence lawyer's job to ensure that the rights of the accused are protected throughout the criminal process.

Do defense attorneys always believe their clients? ›

Defense lawyers are ethically bound to zealously represent all clients, including those they believe will justly be found guilty, as well as those they believe are factually innocent.

What should you not tell a lawyer? ›

Finding the right lawyer can be a difficult decision, even when you know you have a solid case.
Top 5 things you should never tell your lawyer
  • My case will be easy money for you. ...
  • I have already done the work for you. ...
  • I forgot I had an appointment. ...
  • I've already talked to a lot of other lawyers. ...
  • I don't have all my documents.
Apr 19, 2022

Do defense lawyers distort the truth? ›

While it is true that defense lawyers occasionally distort the truth, it is also true that prosecutors are equally guilty of sometimes misrepresenting the truth to win a case. Most defense and prosecutorial misconduct is an unfortunate byproduct of the adversarial process.

Can you tell your attorney the truth? ›

It is the kind of information that the client may wish to share with anyone – even their lawyer. The truth is this – a lawyer, any lawyer handling any important legal matter must have all of the facts and evidence in the case to do their job.

What is a joint representation agreement? ›

Joint Representation simply means that a lawyer represents more than one client in the same dispute or matter. The rules governing the practice of law allow for joint representation, but also require the lawyer to make disclosures so that the parties.

What is a joint legal representation? ›

Joint representation means the same attorney is representing several defendants. This does NOT mean that jurors are to regard them as if they are one person. Each of these defendants may receive separate consideration of the evidence.

What is joint representation learning? ›

The JRL is a deep neural network model that jointly learn latent representations for products and users based on reviews, images and product ratings. The model can jointly or independently latent representations for products and users based on different information.

What is the rule of Defence lawyer? ›

It is the duty of the Defence Lawyer to raise legal objections regarding the impermissibility of the evidence led by the Prosecutor during examination-in-chief.

What is scope of agreement? ›

A scope of services agreement is a contract that defines what services you can expect. The agreement is also called a scope of work or statement of work.

What is the purpose of common interest agreement? ›

Common interest agreements allow attorneys representing different clients with similar legal interests to share information, coordinate strategy, and limit costs, without compromising the confidentiality protections provided by the attorney-client privilege and work product doctrine.

What is the most common defense used in court? ›

Proving Guilt “Beyond a Reasonable Doubt”

With such a high standard imposed on the prosecutor, a defendant's most common defense is often to argue that there is reasonable doubt–that is, that the prosecutor hasn't done a sufficient job of proving that the defendant is guilty.

What is the most important task of defense attorneys? ›

The primary duties that defense counsel owe to their clients, to the administration of justice, and as officers of the court, are to serve as their clients' counselor and advocate with courage and devotion; to ensure that constitutional and other legal rights of their clients are protected; and to render effective, ...

What is one of the most important tasks of defense attorneys? ›

Defense Attorneys develop relationships with clients as they establish legal needs, provide counsel and help them understand their legal options. They also conduct research, prepare legal documents, and perform other duties to ensure that clients receive the best and most cost-effective legal solutions.

What is the defense of privilege? ›

One of the key defenses raised by people accused of making defamatory statements is that the statements were privileged. This means that they were made in a context that is generally deserving of protection (for policy reasons), and if the privilege is successfully proven, it will effectively end the defamation claim.

What are common law privileges? ›

Common law privileges are a different matter. These privileges are judicial creations, not based in constitutional provisions. They are designed to protect confidential communications between parties in certain relationships, such as the attorney-client, doctor-patient, and spousal privileges.

Who signs a common interest agreement? ›

A common interest agreement is an agreement entered into by attorneys and their clients to allow for sharing of information and strategies without violating confidentiality requirements. This document allows the attorneys to coordinate and work together when they represent clients with similar legal interests.

Under what circumstances will a court refuse to rescind a contract based on the defense of a mistake? ›

If only one of the parties is mistaken, that party will not be entitled to rescind, unless (1) the non-mistaken party had reason to know of the mistake and it was his fault which caused the mistake, or (2) the effect of the mistake is such that enforcement of the contract would be “unconscionable.” See, Larsen v.

Can an agreement be effective from back date? ›

However, in few cases, the Effective Date is retrospective, where the rights and obligations of parties are effective from a previous date. For instance, at times in a service agreement, where the services are already being rendered, the contract is made effective from a retrospective Effective Date.

What is the common interest rule? ›

The common interest doctrine is an exception to the general rule that disclosure of a communication to a third party destroys any attendant privilege. In other words, the doctrine permits attorneys representing different parties with similar legal interests to share information without having to share it with others.

What are the elements of common interest privilege? ›

Common Interest Privilege

a party seeking to invoke the common interest doctrine must show: the parties' agreement to same; a common interest in the litigation or a jointly shared litigation strategy; the communications were made pursuant to such agreement, and the continued confidentiality of the communications …

What is the meaning of common interest? ›

Common Interest means the percentage of undivided interest in the common elements appurtenant to each unit, as expressed in the declaration, and any specified percentage of the common interest means such percentage of the undivided interests in the aggregate.

What are the benefits of agreement? ›

The biggest benefit of a written contract is it (if well drafted) provides proof and certainty of what has been agreed between the parties.

What are the benefits of a confidentiality agreement? ›

What Are The Benefits Of A Confidentiality Agreement?
  • Protection from disclosure of intellectual property (including trade secrets, proprietary information, and other confidential information)
  • More legal protections and options if another party does infringe on a patent or otherwise use protected information.

What are the cons of being a defense attorney? ›

The Challenges of Defense Attorney Careers
  • Negative Public Perception. Media coverage of crimes and suspects poses challenges for defense attorneys. ...
  • Difficult Clients. Challenging clients and their families are often more taxing than public misconceptions, though. ...
  • Limited Time and Resources. ...
  • Job Pressure and Stress.

What is the main purpose of an agreement? ›

A contract is a legally binding agreement between two or more parties. Once signed, this contractual agreement creates a promise that certain rights and obligations will be fulfilled by each party. In essence, a promise is at the heart of every contract.

What is the main point of agreement? ›

An agreement is a manifestation of mutual assent by two or more persons to one another. It is a meeting of the minds in a common intention, and is made through offer and acceptance. An agreement can be shown from words, conduct, and in some cases, even silence.

What are important things in an agreement? ›

For a contract to be legally binding it must contain four essential elements: an offer. an acceptance. an intention to create a legal relationship. a consideration (usually money).

What are the most important parts of a confidentiality agreement? ›

The key elements of Non-Disclosure Agreements: Identification of the parties. Definition of what is deemed to be confidential. The scope of the confidentiality obligation by the receiving party.

How do you explain confidentiality agreement? ›

A confidentiality agreement is a standard written agreement that is used to protect the owner of an invention or idea for a new business. It is also an important document between two companies that are contemplating a merger or a commercial transaction that must be withheld from public knowledge.

Why do defense attorneys defend people they know are guilty? ›

Attorneys must vigorously defend everyone, including the guilty, to ensure the government doesn't convict people without solid evidence. Otherwise, the system would end up snaring innocent people. The guilty are also entitled to a fair process, including a lawyer protecting their rights and a just sentence.

Is a lawyer the same as a defense attorney? ›

General lawyers practice law and assist clients when acting for another in business or other general legal matters. A criminal defense attorney, on the other hand, is an expert in trial tactics and defense strategies necessary for the successful resolution of the case for the client and their family.


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