Two federal criminal cases, Henke and Stepney, illustrate the importance of carefully crafting these agreements. United States vs. Henke, 222 F.3d 633; Stepney, 246 F. Supp. 2d 1069. In Henke, the Ninth District Court found that “a joint defence agreement creates an unspoken relationship between the lawyer and the client with the co-accused…. [¶] This privilege can also lead to a dying conflict, where information acquired by a trusted lawyer will become a problem… ». Henke, 222 F.3d to 637. In Henke, the agreement apparently did not include a waiver of the right to seek the exclusion of a lawyer or the right to object to the use of common defence equipment. And in such circumstances, the court found that the information obtained by defence counsel led to a dying conflict when one of the accused was elected to testify for the government. A recent case illustrates this scenario.
In his former firm, a lawyer representing a party in a common advocacy group was familiar with confidential information about a largely related case that negatively dealt with his new firm with respect to members of the lawyer`s former joint advocacy group. Although the firm created an ethical screen to ensure that no information that complied with the case was exchanged with the new lawyer, the court – which applied the automatic disqualification rule (similar to the judge in Essex) – disqualified the entire law firm. Panther v. Park, 123 Cal. Rptr. 2d 599 (2002), sample denied, audit granted, audit at the Court of Appeal, Panther v. Park, 130 Cal. Rptr. 2d 656 (2003). Many potential problems can be avoided by carefully developing common defence agreements.
The clauses to be considered are: and this is only to mention a few possible clauses, because the details of the different agreements will be very different 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. Defence parties have been working for years with Common Defence Agreements (JDAs) in a wide range of cases ranging from product liability to construction error to toxic illicit cases.