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2nd Circ. Ruling Shows Pitfalls Of Joint Defense Agreements

Publisher: Law360
October 24, 2017
Day Pitney Author(s) Daniel E. Wenner

Dan Wenner authored an article, "2nd Circ. Ruling Shows Pitfalls Of Joint Defense Agreements," for Law360. Wenner's article discusses the potential pitfalls of joint defense agreements through an analysis of the recent ruling in United States v. Krug, in which the Second Circuit ruled that a courtroom hallway conversation between three co-defendants who had previously entered into a joint defense agreement (JDA) did not constitute a privileged discussion protected under the common interest rule. The United States appealed the district court's order which precluded the government from introducing testimony from one of the defendants about the three-way conversation. In reversing the judgment of the district court, the Second Circuit found that the hallway discussion "did not serve the interests that justify the privilege," noting that the communications occurred without any attorneys present. The Second Circuit further noted that "the excluded statements were not made for the purpose of obtaining legal advice from a lawyer, nor did the excluded statements share among defendants advice given by a lawyer, not did the excluded statements seek to facilitate a communication with a lawyer." As Wenner concludes, "defense counsel should keep Krug in mind when describing the parameters of any JDA with their clients. And, just as importantly, when describing the scope and protections of the attorney-client privilege with any clients, whether or not they are entering into a JDA or even have co-defendants."

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