White Collar Criminal Defense – When A Common Interest Agreement Can Toughen A Common Defense

When separate and often unrelated parties to any sort of court action – especially if it involves criminal allegations – act in concert as they build their defense, they have to be very careful not to either run afoul of collusion or obstruction of justice rules or waive the attorney-client privilege. But there is a perfectly legitimate – and lawful – way for co-defendants in a civil or criminal action to work together without finding themselves in even more trouble than they might be at the moment.

Typically called a common interest agreement or a joint defense agreement, it allows attorneys for co-parties to formally share information and strategy without breaking privilege or the law – even if the agreement between the defendants collapses prior to the end of a trial.

They’re not always easy to draft and execute, and what is allowed in such an agreement can vary widely from one jurisdiction to another: An agreement that a New Jersey court might find perfectly acceptable could be strictly verboten across the Hudson River in New York, yet one that works in New York and New Jersey courts might well be off-limits in California.

A key question is: how much in common do the parties have to share? The requirements vary, sometimes widely, but in the right circumstances, a common interest agreement between two or more parties in an action can greatly toughen their common defense.

It’s easy to see a Common Interest Agreement at work recently in a current, high profile political trial. Sen. Robert Menendez is accused of corruption in Newark, New Jersey, along with a co-defendant, Florida eye doctor Salomon Melgen. The defendants probably entered into such an agreement. The agreement would allow counsel for both defendants to work together to share information and coordinate a common defense strategy. The result might be that the evidence introduced at trial on behalf of each defendant would (hopefully) be in synch with (and at least not contradictory to) the evidence introduced by the other defendant. This provides for a common theme that might prove more palatable both to jurors and to the judge and is done in a way that is ethical and protects clients’ attorney-client privilege.

There are a number of reasons why a  common interest agreement often makes sense:

When the defendants are tied together and they can essentially argue “if one of us is innocent, we’re all innocent.”

If there are multiple defendants and one of them has a much stronger – or weaker – defense than the others who are accused, but they will all benefit from a common theme.

Often, it’s in everyone’s best interest to play on the same team, to the extent possible.

Finally, in economic terms, it helps avoid “the prisoner’s dilemma” scenario where the dangers of going to trial may encourage a defendant to plead guilty and cooperate with the prosecution, so as to get a lighter sentence.

Not every situation calls for a common interest defense and, in some cases, entering into one may well be against your client’s best interests. And there are circumstances where it may turn out to be against your client’s best interest as discovery or the trial progresses. What looked like a good idea at the outset may run counter, and it’s an attorney’s job to anticipate this possibility as a case moves forward. As a result, it is often a good idea to include a termination clause in the agreement when it is initially executed.

Of course, attorneys must always pursue the interest of their clients first and foremost. Consequently, lawyers must keep a variety of factors in mind when deciding whether to advise clients to enter into a common interest agreement. In fact, if one is entered into too hastily, the interests of the parties might diverge and the lawyer might face a motion seeking to disqualify himself or herself from further participation in the case. But the only way to reach an informed decision as to whether or not to enter into such an agreement is to prepare as if the case will be going to trial – even if a settlement or even dismissal is a possible likelihood. Anything less may cheat your client of a strong defense.