When To Use A Joint Defense Agreement
There are no rules requiring JDA parties to commemorate their agreement in writing; in fact, many JDAs are orally. However, participants who insist on oral agreements should welcome the risk involved. That is, the court may decide on a CCM, no. In order to reduce the chances of a waiver, the agreement should contain a clause rejecting the right to assert such a waiver and an affirmative waiver of Section 962 and a recitation of its text. And this is only to cite a few possible clauses, because the details of each agreement vary considerably depending on the nature of the case (i.e. civil or criminal), the facts and the unique objectives of the parties. In addition, what you have introduced into the agreement can significantly avoid the risk of disqualification. For these reasons, it is strongly recommended to consult a practitioner experienced in the development of such agreements. To obtain the privilege of communicating with others, a party must generally show three things: that the communication ended in a common defence, that the communications were made to support the objectives of that common defence, and that the privilege was not nullified elsewhere (i.e. that the common defenders do not share communication beyond their small group). No good discussion about the JDAs begins without first discussing the doctrine of the common interest; A concept that breathes life into all JDAs. The teaching of the common interest (sometimes called the common privilege of the defence) is an extension of solicitor-client privilege.
It allows parties who have a common interest in defeating a mutual legal opponent to freely share information without worrying about waiving solicitor-client privilege regarding their disclosure. Common defence relationships may exist between civil or co-accused parties and in a civil or criminal context. A common defence may even extend to non-parties, such as defendants` insurers. In Stepney, the court requested – in a unique proactive position – a written drafting of the common defence agreements and was submitted to the court for in camera review before they came into force. In fact, the court raised many sua sponte issues in the effort to control the docket by avoiding last-minute withdrawal or disqualification. To this end, the Tribunal reviewed the existing agreements in the case, analyzed them and ordered revised agreements in accordance with the Tribunal`s ruling. In order to avoid disqualification issues, as in Henke, the Tribunal ordered, among other things, that the agreements be amended to add exception provisions and clauses that respect the extent and nature of the relationship between the various clients and lawyers. Id. to 1086. This scenario shows that each member of a common advocacy group necessarily places a lot of trust in other lawyers. So if you`re considering such an agreement, make sure you «know» the other lawyers. A civil case, Essex, illustrates this point.
There, a New Jersey District Court judge issued an order disqualifying all members of a joint advocacy group. The order followed the finding that one of the companies had previously represented the applicant in related cases.