Working Paper No. 13-55:
Conspirators’ Privilege and Innocents’ Refuge: A New Approach to Joint Defense Agreements

Author(s):

Craig Lerner

Date Posted: October 2013

Availability:
Abstract (below) | Full text (most recent) on SSRN

Abstract:

The joint defense privilege allows parties to share information with others in common legal interest, without waiver of the attorney-client privilege. Practitioners’ guides to white-collar crime now regularly include entire chapters devoted to the drafting of agreements (known as joint defense agreements) that formalize the sharing of privileged information without waiver of the attorney-client privilege among witness in a grand jury investigation. Such agreements are said to be beneficial because they facilitate the flow of information among subjects of an investigation, as well as promote efficiency (by permitting parties to divide up tasks) and fairness (by permitting parties to coordinate strategies and overcome informational advantages ordinarily wielded by the prosecutor).

This Article questions the prevailing wisdom and argues that the joint defense privilege, especially in the context of criminal investigations, is of doubtful social utility. The Article first questions the doctrinal underpinnings of the recently minted privilege. Courts and commentators have tended to view the joint defense privilege as a logical corollary of the attorney-client privilege.  Although beguiling, this approach is flawed. The attorney-client privilege exists to afford adequate legal representation to lay persons by allowing them to make a full disclosure of factual information to a person with expertise in the law. Once disclosure is made to a client’s attorney (and the attorney’s agents), the policy behind the privilege is satisfied.

The Article also questions the policy arguments raised on behalf of the joint defense privilege and attempts to tentatively develop a new justification for it. Many of the claimed benefits of the joint defense privilege in fostering a flow of information are, from society’s perspective, largely specious; and many of the costs of the privilege, which are unrecognized, are grave indeed. Focusing on the use of the joint defense privilege and joint defense agreements in criminal investigations and prosecutions, the Article argues that courts and legislatures should re-think this novel privilege and cabin its application. In the criminal context, only actual defendants (parties who have already been indicted) or targets of investigation (parties with a reasonable expectation of indictment) should be able to avail themselves of the privilege. This limits the use of the privilege to those most under pressure from prosecutors and prevents peripheral witnesses in an investigation (whose interests are often far different from the targets) from being swept in with the more culpable parties.