Joint Defense Agreement and Attorney Client Privilege

Joint Defense Agreement and Attorney-Client Privilege: What You Need to Know

In complex litigation involving multiple parties, it is common for the parties to enter into a joint defense agreement (JDA). A JDA is a written agreement among two or more parties to share information and work together in their defense against common legal claims. While a JDA can be a powerful tool, it can also raise questions about attorney-client privilege.

Attorney-client privilege is a fundamental legal principle that protects communications between an attorney and their client from disclosure to third parties. This privilege applies to confidential communications made for the purpose of seeking legal advice or representation. However, the privilege does not extend to communications made in the presence of third parties or to communications that are not intended to be privileged.

So, how does a JDA affect attorney-client privilege? A JDA allows parties to share confidential information and legal strategies with each other without waiving attorney-client privilege. This means that information shared among parties to a JDA remains confidential and cannot be disclosed to third parties, including opposing counsel or the court, without the consent of all parties to the agreement.

However, there are important limitations to the privilege protection provided by a JDA. First, the agreement must be carefully crafted to ensure that its protections are fully understood and that the parties are aware of the limits of the privilege. Second, the privilege does not apply to communications made outside the scope of the JDA or to information that is not relevant to the common defense.

In addition, the privilege may be waived if one of the parties to the agreement later decides to settle with the opposing party or otherwise pursues a separate legal strategy. In such cases, the party may be required to disclose information or communications that were previously protected by the privilege.

It is important to note that the JDA privilege is not absolute and may be challenged by opposing counsel in court. Opposing counsel may argue that the information or communications protected by the JDA are not privileged, or that the privilege has been waived or otherwise does not apply.

In conclusion, a joint defense agreement can be a valuable tool for parties involved in complex litigation. However, the agreement must be carefully crafted and understood by all parties, and the scope of the privilege protection should be clearly defined. Moreover, it is important for parties to understand the limits and potential exceptions to the privilege protection provided by a JDA. Consulting with an experienced attorney familiar with the complexities of JDAs and attorney-client privilege can help ensure that parties are able to make informed decisions and protect their legal interests.