Companies under investigation will sometimes enter into a joint defense agreement with employees or, more often, former employees. We have seen such agreements that stipulate that information disclosed to the company is not passed on to the government or third parties. This practice is problematic when a company would prefer to disclose illegal or illegal behavior to the government and minimize its risk by obtaining cooperative loans, or when the company operates in a regulated sector that imposes a legal obligation on the company to disclose misconduct. Therefore, a company`s lawyer should include in the joint defence agreement a language expressly authorizing the company to disclose common defence materials at its discretion. However, this strategy has several negative effects. It clearly compromises an employee`s incentive to work with a company. Specifically, it could be argued that the inclusion of such a provision nenies the central premise of a valid common defence agreement – that the parties do indeed have a common interest – which could make the alleged JDA null and void. This kind of JDA is nothing more than a glorified upjohn warning. In practice, however, a person may have no choice but to agree to obtain information (including documents) necessary for the presentation of his or her defence. The potential benefits of a JDA in most criminal investigations are obvious. Often, the risks are less obvious. Taking these pitfalls into account and tackling these pitfalls at first is something that any cautious advocate should do. John M.
Hillebrecht is a partner at DLA Piper in New York and co-chair of the economic crime practice and investigations. Jessica Masella is a partner of the firm. Of course, not all cases in which clients and their lawyers wish to exchange information with others and their lawyers are related to litigation. To address this possibility, many courts have extended the principles of common defence privilege to the non-contentious context. The court sided with the business advisor and concluded that there was no agreement and refused relief – Weissman`s incriminating statements were not privileged and could be used against him in court.