Joint defence agreements are not treaties that create all the rights chosen by the signatories, but are written notice of the defendant`s appeal to the privileges set out in the common law.  Therefore, joint defence agreements cannot extend greater protection than the legal privileges on which they are based.  “A common defence agreement that purports to extend [protection greater than the legal privileges on which it is based] does not specify the protection that would be granted to defendants who sign. In United States v. Stepney, unless the joint defence privilege recognized in this circuit imposes on lawyers who are parties to a joint defence agreement an obligation of loyalty set out in the proposed agreement, this would have no other effect than to misinform the defendants of the true scope of their rights.  The common defence privilege did not impose a general duty of loyalty on all the undersigned defendants, so that the duty of loyalty set out in the proposed Joint Defence Agreement had no other effect than to misinform the defendants of the true extent of their rights.  “The proposed Joint Defence Agreement expressly imposes on the undersigned lawyers not only an obligation of secrecy, but a separate general duty of loyalty to all undersigned defendants. Such an obligation has no legal basis and, if recognised, would offer little chance of leading to proceedings that are not affected by conflicts of interest and forfeiture.  In the event of a conflict, the joint defendant must accept the waiver of conflicts of interest under the doctrine of “common defence” for the waiver to be effective.  Fortunately for the new law firm, Panther`s court reversed the decision and ruled that such situations only create a rebuttable presumption in favor of disqualification, which, as was the case in this case, can be refuted by the evidence that the new law firm has effective review procedures in place to ensure that confidential information is not disclosed to lawyers. Opposing. But Panther was de-published, and to date, no California court case has directly decided this issue in the context of the joint defense.
Whether California courts will apply the automatic disqualification rule by proxy to this particular scenario remains an open question. as stated by the Tribunal in Aviaco International Leasing Inc.c. Boeing Canada Inc.  No. 2420, at para. 23, where a JDA is intended solely to exchange information and otherwise focus on defending a plaintiff`s claim in which all the defendants would have a clear interest and the Court would expect the defendants to sue, the common interest privilege that would apply to the JDA would survive a challenge. Commercial transactions, litigation and disputes often involve several clients with corresponding interests, but with different lawyers. Often, clients and their lawyers want to communicate with other clients and lawyers without risking a waiver of applicable privileges or immunities.
Clients and lawyers can benefit from the options developed by the courts, including through common defence or common interest privilege. Joint defence privilege or the common interest rule is an extension of solicitor-client privilege.  Under the doctrine of “common interest” or “common defence”, parties with common interests in an actual or potential litigation against a common adversary may exchange privileged information without renouncing their right to claim solicitor-client privilege.  Since the common defence privilege can sometimes apply outside the context of factual disputes, what the parties call a “common defence” privilege is more aptly referred to as the “common interest” rule.  The RWS and SDL Joint Confidentiality and Defence Agreement was signed on 3 March. August 2020 entered into a confidentiality and shared defense agreement under which RWS and SDL agreed to certain rules and restrictions on the sharing of certain confidential documents. Common defence privilege does not only protect statements from one lawyer to another or from one lawyer to another. The privilege also applies to communications with certain representatives of a lawyer, including accountants, who have been hired to assist in the provision of legal services.  In addition, a person does not need to be a party to a litigant to be a party to a joint defence agreement. The common defence privilege also applies to “parties or potential parties who have a common interest in the outcome of a particular claim.  Only communications made within the framework of an ongoing joint venture intended to move the company forward are protected.   Two federal criminal cases, Henke and Stepney, illustrate the importance of carefully drafting such agreements […].
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