Benefits Of Joint Defense Agreement
In the Tribunal`s view, the disclosure of the corridors did not serve the interests that justified the privilege. For example, communications were made outside the presence of a lawyer (although, as the court found, the lawyers were nearby) and were not made for the purpose of providing legal advice. The court simply characterized these communications as «a discussion of having a JDA member pass on his independent and non-legal research to another JDA member, while finding that he had sent the same research to his lawyer.»  In addition, the court stated that «the mere fact that the communications took place among the co-accused who had joined a common defence agreement was not sufficient to protect the statements from disclosure.» The Henke decision, which is alone, is particularly worrisome, as it could be argued that common defence agreements create a presumption of a generalized implicit relationship between counsel and client, which could lead to a series of prohibitive conflicts. But such a broad interpretation is not warranted. Fortunately for the new law firm, the Panthers Court turned around, saying that such situations only created a refuted assumption in favour of disqualification, which, as was the case there, by showing that the new law firm has put in place effective screening procedures to ensure that confidential information is not denied to unfavorable lawyers. But Panther has been published, and to date, no California court has ruled on this issue in the context of the common defense. Whether California courts will apply the automatic disqualification rule to this particular scenario remains open. When a party to a common defense agreement decides to cooperate with the government, the potential for disclosure of confidential information also threatens other sixth amendment rights. (Quotes are omitted). Federal courts have an independent interest in streamlining criminal proceedings within the ethical standards of the profession and for judicial proceedings to appear fair to all who observe them. Courts also have an independent interest in protecting a fair trial from trial tactics that can be used to create appeal issues. Given the high potential for absurdity, courts have every right to seek common defence agreements before making problems.  In addition to characterizations and disclaimers, you should avoid actions that can be interpreted as establishing a solicitor-client relationship.
In fact, even seemingly harmless behaviour could lead to an implicit relationship between the lawyer and the client. It is not uncommon for members of common advocacy groups to participate in hearings on behalf of other members. But as innocent as it may be, it can lead to a relationship between the lawyer and the client. For example, at a case management conference: «The board for each party and each party represented by itself must present itself… Cal. Rule 212 (b) (1) (added). If a common defence agreement does not explicitly reject a relationship between counsel and client, such an appearance could later support a request for disqualification. The terms, scope and limitations of the common privilege of the defence or the privilege of the common interest may vary considerably depending on jurisdiction. State and federal jurisdictions are different from whether they recognize a common law of defence or a privilege of common interest and to what extent such a privilege applies.