The privilege also is held to cover communications made to certain agents of an attorney, including accountants hired to assist in the rendition of legal services.
[1][2] A party seeking to assert the joint defense privilege must demonstrate that: For "common interest" or "joint defense" doctrine to apply, to permit parties with common interest in actual or potential litigation to share privileged information without waiving their right to assert privilege, parties' common interest must be identical and not merely similar, and must be legal and not solely commercial.
The party asserting the joint defense agreement always bears the burden of demonstrating its existence by establishing each element of the attorney-client privilege.
"[8] And, although "privileges should be narrowly construed and expansions cautiously extended," courts have found that an oral joint defense agreement may be valid.
[3] Joint defense agreements are not contracts which create whatever rights that signatories chose, but are written notice of defendants' invocation of privileges set forth in common law.
[8] As a result, joint defense agreements cannot extend greater protections than legal privileges on which they rest.
In United States v. Stepney,[10] unless the joint defense privilege recognized in this Circuit imposes a duty of loyalty on attorneys who are parties to a joint defense agreement, the duty of loyalty set forth in the proposed agreement would have no effect other than misinforming defendants of the actual scope of their rights.
Such a duty has no foundation in law and, if recognized, would offer little chance of a trial unmarred by conflict of interest and disqualification.