Joint Defense Privilege: Strength Lies in Numbers

The recent In re Condemnation by City of Philadelphia, 981 A.2d 391 (Pa.Cmwlth.2009) opinion demonstrates what a powerful tool the Joint Defense Privilege is for limiting legal costs and resolving multi defendant disputes quickly, cheaply and efficiently.

The "joint defense" - - or "common interest" - - privilege extends the attorney-client privilege to information-sharing and developing joint litigation strategies between and among counsel for co-defendants.

As the In re Condemnation Court noted:

[T]he joint defense doctrine is highly desirable because it allows for greater efficiency in the handling of litigation. Frequently, co-defendants with essentially the same interests must retain separate counsel to avoid potential conflicts over contingent or subsidiary issues in the case. To avoid duplication of efforts, such defendants should be able to pool their resources on matters of common interest. This can be done most effectively if both counsel can attend and participate in interviews with each other's clients.

981 A.2d at 397.

To fall within the privilege’s protection defendants must “share a common legal, as opposed to a mere commercial or business, interest in the matter” and demonstrate that the: (1) communications were made in the course of a joint defense effort; (2) statements were designed to further that effort; and (3) privilege has not been waived. In re Condemnation, 981 A.2d at 397, n4.

Unfortunately, because of a lack of case law, including the absence of any Pennsylvania Supreme Court authority, issues surrounding the Joint Defense Privilege’s scope and availability remain unresolved.

To best invoke this tool, and cut needless legal expense incurred by duplicative communications and resolution of secondary issues amongst and between defendants, the following must be done. First, ascertain if a true common legal interest exists among or between the parties with whom the communications are to be shared. Second, execute a written joint defense agreement confirming that the participating defendants understand and agree as to the joint legal interests and to what communication the privilege extends.

Through pooling resources, joint interviewing of clients and witnesses, and unification of defense efforts, the Joint Defense Privilege streamlines and focuses litigation and profoundly reduces the costs incurred in defense.