Points To Remember - Protecting Yourself And Your Client In A Joint Defense Arrangement*

Article by Rachel L. Partain1

This article was originally published in ABA Section of Taxation News Quarterly, Winter 2012

Civil examinations and litigations and criminal cases often involve multiple, sometimes related, persons—each of whom might be represented by separate counsel. In such situations, those involved may benefit from joining together to advance their common interests or to provide for a joint defense. Ordinarily, the attorney–client privilege would not attach where a third party is present during a confidential communication between an attorney and his client, and the attorney–client privilege would be waived where formerly privileged communications are disclosed to a third party. See, e.g., Genentech, Inc. v. United States International Trade Commission, 122 F.3d 1409, 1415 (Fed. Cir. 1997) (citations omitted). However, as discussed further below, the common interest doctrine, also referred to as the joint defense doctrine, operates to extend the reach of the attorney–client privilege in the joint defense context.

This article highlights certain issues that should be considered by attorneys and their clients when deciding to participate in joint defense arrangements and also discusses how to formalize such arrangements.

Joint Defense Arrangements

The joint defense doctrine operates as an exception to the rule that the attorney– client privilege does not protect communications made to third parties. See, e.g., In re Grand Jury Subpoenas, 89-3 and 89-4, John Doe 89-129, 902 F.2d 244, 248–49 (4th Cir. 1990). In order to qualify for protection, confidential and otherwise privileged communications can be shared with joint defense participants who have a common legal interest where the communications are made in furtherance of the common legal interest. See, e.g., United States v. BDO Seidman, LLP, 492 F.3d 806, 815–16 (7th Cir. 2007) (citation omitted).

In addition to allowing participants to present a unified front, there are numerous benefits to forming a joint defense arrangement. The arrangements may reduce a client's expenses as participants typically share in the costs of common projects. Also, attorneys may find that participating in a joint defense group allows for an efficient use of discovery limitations, such as on the number of depositions or requests for admission, or an ability to specialize in a particular area of the joint defense. Further, joint defense arrangements can result in judicial efficiency as a result of combined...