A common defence agreement, which simply says that the parties are co-accused and want to exchange information, may not be enough to protect the privilege. Some courts are skeptical of efforts to hide behind a privilege that has been quashed and are reluctant to extend the privilege to third parties if there is no evidence that such an extension is warranted. Nevertheless, there is sufficient commonality for lawyers to maximize the chances of each court recognizing and effectively recognizing the privileges and immunities of common interest claimed. This is usually done through a formal written agreement. The concepts and predicates of an applicable common interest agreement are, for the most part, similar to those of the common defence agreement. These include real common interests that are sufficient to justify a derogation from the rules for waiving solicitor-client privilege. Common defence and common interest agreements can be effective instruments to promote client interests and reduce costs. The key is to do them properly so that they do not become the basis of litigation themselves. From a strictly legal point of view, the common privilege of defence is a bad name, for it is not in fact a positive privilege; Rather, it is an exception to the exemption granted to the exemption.
In general, the disclosure of privileged and confidential information to third parties constitutes a waiver of privilege. However, those who are protected by a common defence agreement can avoid relinquishing and retaining the privilege, regardless of the disclosure of confidential information to third parties. While most jurisdictions do not require formal written agreement to recognize a common defence privilege, the best method is to document the extent, duration, limits and parties to the common privilege of the defence. The need for separate legal assistance for different defendants in the same dispute already shows one of the risks of a common defence. Interests between parties with different lawyers are rarely completely the same. When these competing interests develop into real differences in approach, strategy or solution, the common defence label is called into question. In litigation, co-accused often have a common interest in defeating the complainant`s claims. Especially in situations where co-accused do not attempt to blame the blame, the courts have recognized that the accused can defend themselves together and share trust and secrets (as well as expenses). In this context, communications between the defendants would not be protected in subsequent disputes between them, but communications would be protected from discovery by the applicants. For lawyers, this includes dealing with risks such as obligations to non-clients who are parties to the joint defence contract.
It is recommended that any common defence agreement should include provisions that should not be used as a basis for attempting to disqualify another Council. To Ambac Assur. Corp. v Countrywide Home Loans, Inc., 27 NY3d 616 (2016), the New York Court of Appeals has expressly limited the application of the doctrine of common interest to “co-accused, co-prosecutors or persons who reasonably expect them to become civil parties…. In this regard, the Court of Appeal clarified that the policy underlying the doctrine was to allow two or more parties to coordinate a common claim or defence, without fear that such efforts would later become an object of disclosure. Since the existence of common interests is not as obvious as in the context of the trial, it is particularly important that clients and lawyers document the origin, duration, foundation, limitations and end of a common interest agreement.