Joint Defense Agreements for Multiple Targets in Federal Investigations

Joint Defense Agreements for Multiple Targets in Federal Investigations

When multiple targets are under investigation by the federal government, they may consider entering into a joint defense agreement (JDA) to coordinate their legal strategies and share information. JDAs can provide significant benefits but also pose risks that targets should carefully weigh.

What is a JDA?

A JDA is a written agreement between two or more targets and their respective attorneys to share confidential information and pursue a common legal strategy. It allows the targets to communicate with each other’s attorneys confidentially, without waiving attorney-client privilege[1]. The purpose is to facilitate a common defense by allowing the targets and attorneys to coordinate strategies and share information and resources[2].

Benefits of JDAs

There are several potential benefits to entering a JDA[3]:

• Cost savings from dividing litigation tasks
• Sharing of information and strategy
• Presenting a united front
• Avoiding conflicts between defenses
• Protection of confidential communications through joint defense privilege

By working together, the targets can develop more comprehensive legal strategies and conserve resources. The JDA provides protections so they can comfortably share information without creating risks[4].

Risks of JDAs

However, JDAs also pose some risks that should be considered[5]:

• Possibility of a “defector” who cooperates with prosecutors
• Potential for conflicts of interest between targets
• Risk of disqualification of attorneys if conflicts arise
• Chance of waiver of attorney-client privilege
• Appearance of obstruction of justice

If one target defects and cooperates with prosecutors, they could reveal confidential information shared under the JDA. And differences in liability or exposure between targets could lead to conflicts. Careful drafting of the JDA is required to mitigate these risks[2].

Key Provisions of JDAs

It’s important for a JDA to clearly outline[4]:

• The specific common interest shared by the targets
• An agreement to pursue a joint defense strategy
• An agreement not to disclose shared information outside the JDA
• Conditions allowing withdrawal from the JDA
• Protocols for using shared information if a conflict arises

The JDA should be in writing and approved by all targets and attorneys. It can help avoid disqualification of counsel down the road[3].

Weighing the Decision to Join a JDA

Targets considering a JDA should carefully[1]:

• Assess whether their interests completely align
• Consider the benefits and risks
• Evaluate the likelihood of conflicts arising
• Review the terms of the JDA thoroughly

Joining a JDA can provide significant strategic advantages but also poses risks if not handled properly. Targets should consult with experienced criminal defense counsel to advise them on the decision[5].

Alternatives to JDAs

If targets are uneasy about entering a JDA, there are alternatives to consider:

• Informal coordination between attorneys regarding areas of common interest
• Limiting the JDA to only certain aspects of defense
• Including provisions allowing withdrawal if conflicts emerge
• Declining to join the JDA but monitoring areas of overlap

These options allow targets to gain some benefits of coordination while controlling risks[2]. The decision whether to join a JDA depends on the case specifics.

Conclusion

JDAs allow multiple targets in federal probes to mount a joint defense. While beneficial, JDAs also create risks such as defection, conflicts, and privilege waiver. Targets should carefully assess their situation before joining, review terms of the JDA, and consider alternatives to maximize strategic advantages while minimizing risks.

References

1. Foster Garvey – Newsroom Alerts: Joint Defense Agreements (JDA) in Litigation
2. Understanding Joint Defense Agreements, Appearances and Representation
3. Reconceptualizing the Joint Defense Doctrine
4. Joint Defense and Common Interest Agreements
5. Joint Defense Agreements and Disqualification of Co-Defendant’s Counsel