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White Collar Criminal Defense By Binnall Law Group - 2023/01/12 at 01:59pm

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 must be careful not to either run afoul of collusion or obstruction of justice rules or waive 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 illegal or unenforceable across the Hudson River in New York, yet one that works in New York and New Jersey courts might be illegal or unenforceable in California. Some jurisdictions even have common law rules relating to such agreements that will protect certain disclosures.  

A key question courts will ask before enforcing a joint defense agreement is: how much in common do the parties share? The requirements vary by jurisdiction but in the right circumstances, a common interest agreement between two or more parties in an action can greatly strengthen their common defense. 

It’s easy to understand why a Common Interest Agreement could strengthen a common defense. Take the trial of Sen. Robert Menendez, 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 that 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 sync with (and at least not contradictory to) the evidence introduced by the other defendant. This provides a common theme that would likely 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. 
  • 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, to get a lighter sentence. 

Not every situation calls for a common interest defense and, in some cases, entering 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 end up changing before the end of the case, 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 him or her from further participation in the case. But the only way to reach an informed decision whether to enter into such an agreement is to prepare as if the case will be going to trial—even if a settlement or dismissal is a possible likelihood. Anything less may cheat your client of a strong defense.