What Is a Joint Defense Agreement?

Standardized Legal Documents What Is a Joint Defense Agreement?

A Joint Defense Agreement From A to Z

A privilege is of great importance in the U.S. legal justice system. It protects confidential information and documents exchanged between an attorney and a client during criminal proceedings. When the protected information is revealed to the third party, confidentiality is breached, and the privilege is waived.

A joint defense agreement can help by allowing the disclosure of confidential information without breaching the attorney-client privilege. 

DoNotPay will explain what constitutes a joint defense agreement and when and how to use this legal document

What Is a Joint Defense Privilege?

Parties with a common interest in a civil or criminal case but with different attorneys sometimes decide to collaborate. That collaboration requires the disclosure of specific confidential information protected by the attorney-client privilege. In such cases, the involved parties rely on a joint defense agreement. It is an extension of the attorney-client privilege designed to protect the communication between the collaborating parties and keep the shared information confidential. 

Joint defense privilege is a sensitive matter, and its abuse can lead to serious legal repercussions. To avoid them, you must take specific safety measures, including:

  • Establishing the agreement before sharing the privileged informationThe document doesn’t have to be in writing, but both parties have to agree that they are entering into it
  • Writing the agreementIt is more convenient to document that the parties are entering into a joint defense agreement and that they expect the information to remain confidential
  • Keeping the attorneys involvedThe exchange of information should happen between attorneys and not directly between clients

Both parties should consider the unity of their legal interest carefully before entering into a joint defense agreement.

What Are the Disadvantages of a Joint Defense Agreement? 

Joint defense agreements pose a great risk for lawyers and lead to disqualification and conflict of interest. Attorneys have to make sure they are entering an agreement with trusted parties. If one of the parties doesn’t perform an adequate conflict check, all the participating lawyers are at risk of disqualification.

Unexpected conflicts can happen if attorneys change law firms. The client-lawyer privilege extends even after the attorney stops representing the client. If the new company does business with the opposing party of the lawyer’s former client, it can be considered a breach of privilege. To avoid the legal conundrum, the involved parties must define all aspects in a comprehensive joint defense agreement.

What Should a Joint Defense Agreement Include?

A carefully drafted joint defense agreement protects both attorneys and clients from potential risks. You have to use specific language when creating a joint defense agreement. The contract should indicate that:

  1. Parties entering into the agreement have a common interest and will share the confidential material to establish a common defense strategy
  2. Attorneys have completed a thorough conflict check and don’t have any existing conflict of interest
  3. The right to disqualify members of a joint defense group for their access to the joint defense material is waved
  4. Waiver of the joint defense privilege has to be a result of all joint defense members’ consent
  5. An attorney-client relationship is disclaimed and won’t arise by implication
  6. Confidential communication and materials will only be revealed to the parties in the agreement
  7. Parties are forbidden from using the shared information outside of the agreement
  8. Filing a cross-claim will be postponed until the proceedings reach the final deposition
  9. Parties have to provide written notice before withdrawing from the agreement and follow a specific procedure for returning shared materials
  10. Communication about entering a joint defense agreement is also subject to the joint defense privilege
  11. Joint defense privilege extends beyond the conclusion of the trial
  12. Parties that reach a settlement will notify other participants in the joint defense agreement

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While a joint defense agreement requires attorney involvement, many legal documents don't. There are other solutions besides writing a contract yourself or downloading a contract template. DoNotPay can generate various business, real estate, and many other contracts according to your specific circumstances. 

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The process of creating a contract with DoNotPay is straightforward and goes like this:

  1. in a web browser
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