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Protecting Yourself and Your Client in a Joint Defense Arrangement

February 1, 2012, ABA Section of Taxation News Quarterly

Excerpt taken from article*.

Civil examinations and litigations and criminal cases often involve multiple, sometimes related, persons—each of whom might be represented by separate counsel. In such situations, those involved may benefit from joining together to advance their common interests or to provide for a joint defense. Ordinarily, the attorney–client privilege would not attach where a third party is present during a confidential communication between an attorney and his client, and the attorney–client privilege would be waived where formerly privileged communications are disclosed to a third party. See, e.g., Genentech, Inc. v. United States International Trade Commission, 122 F.3d 1409, 1415 (Fed. Cir. 1997) (citations omitted). However, as discussed further below, the common interest doctrine, also referred to as the joint defense doctrine, operates to extend the reach of the attorney–client privilege in the joint defense context.

This article, written by Rachel Leigh Partain, highlights certain issues that should be considered by attorneys and their clients when deciding to participate in joint defense arrangements and also discusses how to formalize such arrangements.

*This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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