Oregon Joint Defense Agreement

2. In order to invoke the common defence privilege, there must be evidence of a common defence agreement. Weissman invoked joint defense privilege to ensure that his own confession was not used against him. To prove his right to privilege, Weissman`s lawyer testified that at the beginning of the meeting, he asked the business consultant to agree that the meeting would be conducted according to a JDA. According to Weissman`s lawyer, the management consultant agreed. However, the management consultant had a different memory of the meeting and explained that no JDA had ever been discussed. As seen in the Bar Notes published by the Louisville Bar Association. A joint defence agreement is a useful tool for co-respondents` lawyers to exchange information and present a coordinated defence. However, these agreements must be carefully drafted to ensure that each individual customer is protected. In particular, a provision that waives the right of members of the joint defence to disqualify lawyers must be clear and precise. This ensures the protection of the client and at the same time leaves the lawyers concerned a certain degree of flexibility. Community defence privilege extends the protection of confidential information contained in solicitor-client privilege to communications that are part of a coordinated defence between the co-respondents and their respective defence lawyers. To qualify for the privilege, a party must demonstrate that the communication was part of a common defence and was intended to promote those efforts.

The party must also prove that the privilege has not been lifted. Federal courts in the Sixth District have approved joint defense agreements in recent years. For example, in Broessel v. Triad Guar. In. Corp., the court acknowledged, “Increasingly to protect joint defense privilege, the parties enter into written joint defense agreements to ensure that the information exchanged between each of the defendants` lawyers remains privileged despite the exchange.” Another example comes from City of Columbus v. Hotels. com: “When the parties have a common interest in a dispute and/or conduct a common defense, they have traditionally been able to share the results of the work without sacrificing the protection of privilege.” A number of other relevant cases and statutes have provided key points and information on joint defence agreements: 1. A joint defence agreement is useful as it allows lawyers for co-accused to share confidential information while maintaining their privileged status. 5. The existence of an attorney-client relationship between the defense attorney in a joint defense agreement and a co-defendant can lead to information confidentiality issues and conflicts of interest with former clients.

If the relationship exists, a disqualification may be required if the realignment of the parties takes place during the litigation. From Umphenour v. Mathias: “In the event of disqualification due to former clients, the Sixth Circuit, which follows nationwide circuits, uses a three-part test developed in Dana Corp.c. Blue Cross & Blue Shield..” b. “Dana Corp. Test analysis: (1) if there has been a previous attorney/client relationship between the party seeking disqualification and the attorney it wishes to disqualify; 2. whether the subject matter of those relationships is substantially linked; and (3) whether the lawyer has received confidential information from the party requesting forfeiture. To address issues of confidentiality, conflict of interest and disqualification, many joint defence agreements contain a provision that denies the possibility of a mandate relationship for co-respondents. Agreements may also contain a provision that waives the right of members of the joint defense agreement to disqualify other lawyers in the agreement. These provisions must be carefully drafted to be effective. The usefulness of a joint defence agreement is evident in United States v.

Henke. In this particular case, a defendant agreed to an agreement and began working with the government. The court found that a joint defense agreement resulted in “an implied client relationship with the co-respondent.” Counsel for the co-defendants had confidential information that could have been used to dismiss the new witness. For this reason, the court disqualified all defense lawyers for the co-defendants. This extreme result could have been avoided with a carefully crafted joint defense agreement. A recent case from the federal circuit shows the other end of the spectrum. In Shared Memory Graphics LLC, a lawyer who was a member of a joint defense agreement switched to a law firm that represented the plaintiff in an essentially related case, and the lawyer was not properly examined in that case at his new law firm. The court upheld the general waiver provision in the joint defence agreement that allowed for this step. The co-defendants were then forced to face an opposing lawyer who had confidential information about their case. Henke and In re Shared Memory Graphics present two extreme results to avoid.

A clear and precise joint defense agreement can avoid a situation in which all defense lawyers are disqualified by co-defendants, while protecting clients from having to face an adversary in possession of their confidential information. Lawyers must consider issues of confidential information and confidentiality when drafting these agreements. Those of Ky. The codified Model Rules for Ethics in SCR 3.130 (hereinafter referred to as the “Model Rules”) provide guidance on how to deal with these sensitive issues. Winchester – to determine whether a lawyer should be disqualified. Therefore, a Kentucky attorney should be very careful when changing positions during litigation. The preamble to the Model Order deals with competing interests at issue in joint defence agreements. For example, it is said in Ky. SCR 3.130 Preamble: Responsibilities of a lawyer: “Virtually all difficult ethical problems arise from a conflict between a lawyer`s liability to his or her clients, the legal system, and the lawyer`s own interest in remaining an ethical person while earning a satisfying life.” By developing a clear and concise common defence agreement that addresses the concerns of the Model Rules, a lawyer can balance the need to protect a client`s confidential information while allowing for the mobility that is essential in today`s legal profession.

A lawyer can work effectively under a joint defense agreement by following a few simple steps. First, when drawing up a common defence agreement, all provisions that deny solicitor-client privilege or waive a right to forfeiture should be clear and precise. It is imperative that the client is aware of the implications of the provisions of a joint defence agreement. In Ky. Subsection 3.130(1.6) of the SCR states: “A fundamental principle in the relationship between client and lawyer is that, in the absence of informed consent from the client, the lawyer may not disclose representation information.” (Emphasis added). And Ky. Point 3.130(1.4) of the SCR tells us that a lawyer must consult the client on the means by which the client`s objectives are achieved and inform him so that he can make informed decisions. It is particularly important that the customer is informed of the consequences of a waiver. Ky. Point 1.9 of SCR 3.130 states: “The exclusion of subsequent representations serves to protect customers and may be lifted by them. A waiver is only effective if the circumstances are disclosed. And from Formal Opinion 372 of the ABA`s Ethics and Professional Liability Committee, we learned that the closer a potential waiver can come to identifying potential future litigation, “the more likely it becomes.

in accordance with the requirement of the Model Rules that consent must be accompanied by a consultation providing information reasonably sufficient to enable the client to assess the importance of the matter in question. (Emphasis added). Finally, if a lawyer moves to an unfavourable law firm as part of a joint defence agreement, he or she should be subject to appropriate review in accordance with the model rules. For example, Ky. SCR 3.130 (1.0) tells us: “The purpose of filtering is to reassure the parties concerned that confidential information known to the personally disqualified lawyer remains protected. Proper screening also ensures that the opposing company is not excluded from representing the opposing customer on the basis of credit. .