February 14, 2017 Articles

Unsteady Bedfellows: Joint Defense Agreements after the Yates Memo

Practice pointers for entering into joint defense agreements with white-collar defendants

by Michael A. Brockland

Joint defense agreements (JDAs) are important tools for lawyers representing parties facing allegations of corporate criminal wrongdoing in government investigations and white-collar cases. In theory, a JDA among corporate counsel and the attorneys of individual executives or employees allows the parties to share information, including privileged communications and strategies, and even divide work among the counsel for various codefendants, to determine how best to defend against allegations of criminal wrongdoing. The JDA allows for such sharing without waving the privileged nature of those communications.

Despite their utility, JDAs have never been risk-free. Counsel to these "unsteady bedfellows" always must be acutely aware of the fact that a JDA is only as good as the extent of the parties' common interest. In re Grand Jury Subpoena Duces Tecum Dated Nov. 16, 1974, 406 F. Supp. 381, 382 (S.D.N.Y. 1975). If the parties' interests diverge, for example by one codefendant deciding to cooperate with the government, any privileged information shared after that divergence will not be protected by a JDA.

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