Joint Defense Agreements Hidden Dangers

While joint defense agreements can be helpful, it`s important to understand that they present very real hidden dangers, both for the lawyer and the client. And you, as a practitioner, are ultimately responsible for identifying and attacking these dangers. This article will address some of these dangers, including potential conflicts of interest and deputy disqualification, as well as the waiver of solicitor privilege. They were asked to conclude a common defence agreement. It seems useful from the perspective of a zealous lawyer – it can be very beneficial for your client by allowing lawyers to pool knowledge, expertise and resources. But have you considered all the potential dangers of a common defence agreement from the point of view of your own legitimate interest? But what if your client and another member of the joint defense group are penalized in a dispute? One of the concerns is the possibility of waiving the privilege of a lawyer. The cooperating defense attorney should be tired of these situations, as a court may find that there is no JDA in such circumstances. Fortunately for the new law firm, the panther court overturned and found that such situations only establish a rebuttable presumption in favor of disqualification which, as was the case there, can be refuted by showing that the new law firm has put in place effective screening procedures to ensure that confidential information is not passed on to opposing lawyers. But Panther was published and to date no California state court has decided this issue in the context of joint defense. Whether California courts will apply the automatic disqualification rule to this particular scenario remains open. In addition, Judge Patel, who found that there was no “duty of loyalty” in the context of the common defence, rejected the rule of automatic disqualification and stated that “no conflict of interest arises unless the lawyer has actually received relevant confidential information”. Id.

for 1080-81 (added highlighting). Do not start a good discussion on DDAs without first discussing the doctrine of the common interest; A concept that breathes life into all JDEs. The common interest doctrine (sometimes also called joint defense privilege) is an extension of solicitor-client privilege. It allows parties who have a common interest in defeating a mutual opponent of the right, to freely share information without having to worry about renouncing legal privilege with respect to their communication. For example, four clients and four law firms want to enter into a joint defence agreement. You and your company conduct a dispute review carefully and enter into the agreement. Members of the Joint Defense group will then share legal memoranda as well as key documents. Later, until the litigation, you will learn that one of the members of the firm did not conduct an appropriate examination of the conflicts. . .

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