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7 Crim. Just. 6 (1992-1993)
Conflicts and Confidences: Does Conflict of Interest Kill the Joint Defense Privilege - The Defense Viewpoint

handle is hein.journals/cjust7 and id is 8 raw text is: By RONALD J. NESSIM The defense viewpoint he joint defense privi- Ilege essentially extends the attorney-client privi- ji: Z lege and work-product 'z- nt : doctrine to protect con- fidential information ex- changed among actual or potential litigants and their counsel who share common interests, for the purpose of advancing those inter- ests. Without the joint defense privilege, such disclosures, which are between different parties, would not ordinarily be privileged. The privilege is applicable in both civil and criminal proceedings in federal court. (Proposed Fed. R. Evid. 503(b)(3).) The utility and, in many cases, the necessity of the privilege, particu- larly in criminal cases, has long been recognized: Uninhibited communication among joint parties and their counsel about matters of com- mon concern is often important to the protection of their inter- ests. In criminal cases it can be necessary to a fair opportunity to defend. (United States v. Mc- Partlin, 595 F.2d 1321, 1336 (7th Cir. 1979).) The joint defense privilege is often memorialized in a joint de- fense agreement: ... joint defense agreements in- crease the protection of com- munications between counsel for codefendants by increasing the probability that a communication will be protected by the joint de- fense privilege, and in terms of an increased ability to prevent sub- sequent adverse use of that com- munication by other defendants. This heightened protection en- courages increased cooperation between counsel and a far more liberal sharing of information among defendants than would otherwise be likely. One result of such increased cooperation is -e (Continued on page 8) X t6

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