Ethics Meets Strategy: Understanding Common Interest and Joint Defense Agreements

In both civil and criminal litigation, there are often multiple parties that have a strong common interest. These can be defendants, third-parties, or plaintiffs. In such situations it is often advantageous to develop a joint strategy that benefits these parties.

However, there are pitfalls to this approach. For instance, if the parties do not enter into an information sharing agreement, then a court might find the communications between counsel and the parties waived the attorney-client privilege and attorney work product doctrine. This opens the door for the other side to conduct discovery into such a joint strategy. This danger can be mitigated through a common interest agreement (also called a joint defense agreement).

This presentation will discuss the ins and outs of these agreements and some of the advantages and dangers of entering into them. By looking at the state of the law in various jurisdictions, lawyers will have a better idea of how to develop a strong joint strategy without compromising their clients' best interests.

Please note: This program is approved for General credit in Virginia.

Learning Objectives:

1. Identify the important terms and concepts in common interest agreements and the differences among the different jurisdictions
2. Review different circumstances in which a common interest privilege agreement might be useful
3. Understand the duties an attorney might have to third parties in common interest cases
4. Consider what happens when a common interest falls apart