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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
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