Attorneys hoping to minimize cost and increase efficiency for their clients will often engage in communications or joint defenses with their co-defendants. This is often done either informally or with the use of formal joint defense agreements. Although this practice is fairly common, there has been relatively little guidance from the court on issues raised by it. The question of whether and under what circumstances engaging in a joint defense will result in waiver of the attorney client or work product privileges is of particular concern.
Pennsylvania’s Commonwealth Court recently addressed the use of joint defense agreements. In its decision in In re: Condemnation by the City of Philadelphia of Certain Property Interest in the 16.2626 Acre Area, the Court recognized that a joint defense or common interest privilege is a valid extension of the attorney-client privilege. Therefore, when defendants and their attorneys participate in a joint defense, the attorney-client privilege is not waived by the sharing of information within the joint defense group. This privilege is limited, however, to co-defendants who have a shared legal interest and does not apply if they only have a shared commercial or monetary interest. Unfortunately, this decision does not discuss what would constitute a shared legal interest. Furthermore, another case, Executive Risk Indemnity, Inc. v. CIGNA Corp., has held that an informal and unwritten joint defense agreement that extended the attorney client and work product privileges to co-defendants and their counsel ceased to protect these communications if they were made after the date that the co-defendants ceased to have a common interest. In that case, the co-defendants’ interest diverged after one co-defendant determined that it would not participate in mediation of the claims with the others.
Before sharing information with co-defendants, one must be certain that this is done in a manner that maintains the privileges that extend to client communications and attorney work product. Parties should be sure that they have a shared legal interest and should considering memorializing the joint defense agreement and its terms. To discuss joint defense agreements in more detail, please contact a Unruh Turner Burke and Frees attorney in our West Chester office at 610-692-1371.