Since an implied attorney-client relationship is generally determined on the basis of the potential client`s reasonable perspective, a well-developed joint defense agreement can confirm that the parties agree that there was no intentional attorney-client relationship with parties for any purpose. As a starting point, many courts distinguish between the common privilege of the defence and that of the community and find that the former is narrow and results from actual disputes, while the privilege of the common interest is broader and does not require the opening of a dispute. Many other dishes use the terms almost interchangeable, without significant distinction between the two. “The need to protect the free flow of information from one client to another makes sense whenever multiple clients have a common interest in a court case.” [1] The Common Interest Rule is intended to protect the confidentiality of communications transmitted by one party to counsel for another party where a common defence effort or strategy has been decided and implemented by the parties and their respective counsel. [1] When considering the validity of a joint defence agreement, the courts generally focus on the actual conformity of the parties` interests. For example, in litigation at the World Trade Center after May 11, the Southern District Court for the Southern District of New York refused to recognize the common privilege of interest invoked by the WTC lease holders and the employees of the insurance broker who obtained WTC coverage. “As a general rule, no written agreement is required to assert the common privilege of the defence.” [8] While “privileges must be interpreted restrictively and extensions should be extended with caution,” the courts have held that a common oral defense agreement may be valid. [3] Common defence agreements are not contracts on which the rights chosen by the signatories are based, but are written communications concerning the defendant`s appeal to the privileges set out in the Common Law. [8] The common privilege of the defence did not impose a general duty of loyalty on all signatory accused and, therefore, the duty of loyalty set out in the proposed joint defence agreement had no other effect than to distort the defendants` knowledge of the true extent of their rights. [8] “The proposed joint defence agreement explicitly imposes on the signatory lawyers not only an obligation of confidentiality, but also a separate general duty of loyalty to all signatory defendants.
Such an obligation has no legal basis and, if recognised, would offer little chance of initiating proceedings without conflict of interest or disqualification. [8] In the event of a conflict, the common defendant must accept, in accordance with the doctrine of “common defence”, the waiver of conflicts of interest for the waiver to be effective. [2] Defence and common interest agreements can be effective instruments for promoting client interests and reducing costs. The key is to do them correctly so that they do not themselves become the basis of disputes. A joint defense agreement, which simply states that the parties are co-accused and wish to exchange information, may not be enough to protect the privilege. . . .