15 Apr Withdrawing From Joint Defense Agreement
In the context of class actions, where an applicant generally makes similar claims against many defendants in a particular sector, coordinating defence efforts between co-accused may be a very prudent approach. By working together to develop a common process strategy and defence, competitors can pool their knowledge, know-how and resources to achieve the most beneficial outcome for their respective clients. However, this practice is tainted by anti-personnel mines that can have devastating effects on clients and practitioners. In complex mass crimes, different lawyers necessarily represent different clients on issues of common interest. While formulating a common defence is a collective effort, lawyers involved in multi-defendant mass actions should not lose sight of the need to share work products and confidential information with their competitors, which has the potential to leave clients exposed and pave the way for future disputes between co-defendants. Moreover, in the absence of preventive safeguards prior to the formulation of a common defence – a carefully crafted joint defence agreement – lawyers may find themselves in a large number of conflicts of interest and waiver issues, unknowingly establish a relationship between counsel and client with other co-accused and ultimately expose themselves to liability for wrongdoing. Therefore, it is important that all mass advocates: 1) understand the benefits of a common defence; 2) determine when a common defence agreement can be invoked; 3) know why it is essential to develop a common defence agreement carefully; and 4) learn how to protect a common defence agreement that best protects the interests of the lawyer and the client. Four key questions 1. What is axiomatic is that solicitor-client privilege traditionally protects confidential communication between a lawyer and a client seeking legal advice. The confidentiality of the communication in question is of the utmost importance, as privilege only protects communication between lawyers and clients intended to remain private. Therefore, if third parties are present, the privilege will necessarily be abolished.
However, “common defence privilege” (or “common interest privilege”) is an exception to this rule, which allows solicitor-client privilege to apply for communications that are part of an ongoing and shared effort to define a common defence strategy. In other words, the common defence privilege allows for confidentiality between the lawyer and the client in communication between each client and any lawyer oriented in a common defense effort. The “common privilege of defence” does not function as an independent privilege; On the contrary, it allows co-accused and their lawyers to exchange information without violating solicitor-client privilege. As a good practice counsel, practitioners should be assured of verifying how the “common privilege of the defence” is defined in the jurisdiction in which the litigation is pending. The easing of the severity of solicitor-client privilege in the context of the common defence can certainly bring enormous benefits in the context of mass offences. For example, co-accused can ensure consistency of defence positions (while minimizing redundancy), reduce costs, streamline resources, facilitate information exchange, control the flow of information, develop a coherent investigative strategy and increase the overall efficiency of litigation.