The attorney-client privilege is generally waived if confidential information is disclosed to a third party, i.e., someone who is not the attorney, the client, or their agent. But a largely-recognized exception to this rule now exists: the joint defense doctrine. Succinctly stated, the joint defense doctrine allows co-defendants and their counsel to consult together regarding the case without waiving attorney-client privilege. Every federal circuit recognizes some version of this doctrine.
Effect of a Joint Defense Agreement
A joint defense agreement will protect communications between a defendant (or defendant's counsel) and counsel for a co-defendant if the following criteria exist:
1) actual or potential criminal litigation exists; 2) the communication was made during the course of a joint defense effort; 3) the communication was intended to further that effort; and the privilege has not been waived.
Requirements of a Joint Defense Agreement
There are a few requirements for a valid joint defense agreement. First, the communications must involve a common interest among the co-defendants. Second, the communications must involve efforts to further the joint defense effort. Third, the communications must be given in confidence and the client must have reasonably understood that the communications would remain confidential.
A written joint defense agreement is not required; instead, it can be inferred from the facts. That said, a simple writing memorializing that a joint defense agreement exists can go a long way to protecting communications.
Can the Privilege in a Joint Defense Agreement Be Waived?
Importantly, the privilege can only be waived if all clients agree to waive the privilege.