Since an unspoken relationship between counsel and client is generally determined on the basis of the reasonable perspective of the potential client, a well-written common defence agreement can confirm that the parties accept that there was no solicitor-client relationship with co-parties for any purpose. Despite the frequent use of agreements of common interest, there are restrictions that can totally affect privilege and, on the other hand, render communication unprotected and untraceable. When the holding company was applied to Ambac, a New York County Supreme Court judge recently ruled that the common interest doctrine did not apply to communication between lawyers for whom one party attributed the other claims. In particular, the 9th Circle accepted that, as part of the joint defence agreement, lawyers for Desaigoudar and Henke had an implicit lawyer and client relationship with Gupta. Therefore, according to the Circuit Court, Desaigoudar and Henke`s lawyers would not be able to defend them ethically by accusing Gupta of information obtained at their joint defence meetings. The result was a prohibitive conflict of interest that would have led the district court to be taken into account. Common defence and common interest agreements can be effective instruments to promote client interests and reduce costs. The key is to do them properly so that they do not become the basis of litigation themselves. The various results achieved in Henke and Almeida underline the uncertainty that can arise in the event of the failure of a common defence treaty.
The party, which returns state evidence, may risk the risk of impeachment proceedings with the confidence the party has shown at joint defence meetings, which could significantly undermine the defector`s credibility and reduce the value of his testimony to the government. The eleventh circle felt that a joint written defence agreement could clarify this situation. United States vs. Almeida, 341 F.3d at 1326 n.21. In this document, a party would agree to waive any privilege if it decided to cooperate with the government. However, it is possible that the government would go after the waiver on the grounds that it did not know and that it was intelligent and that no rational accused would reduce its potential value to the government and the hope of a lesser sentence by making such a waiver. | Jonathan W. Hugg is a partner at Obermayer Rebmann Maxwell – Hippel LLP.