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Written vs. Oral Joint-Defense Agreements

By Michael Kendall

The Joint-Defense Agreement (JDA) has become a fixture in complex white-collar cases and even many purely civil actions. When the government begins an investigation of a company and its employees, it is often advisable and sometimes necessary to secure separate representation for the company, its employees and perhaps other entities or individuals. Independent attorneys owe a duty of loyalty to their individual clients and can provide them with personalized, confidential legal advice that an attorney for the company cannot provide. The company, however, needs to communicate with these represented parties. Employees will speak frankly with company counsel only if they know they are not exposing themselves to prosecution. A company cannot produce documents and engage in frank conversation with the government without such employee cooperation.

Engaging multiple attorneys introduces inefficiencies into what is often primarily a common defense against the government. These inefficiencies can be costly if each attorney must duplicate the work performed by other attorneys. More importantly, if defense counsel are unable to communicate fully and frankly with each other, the government may be able to pursue a divide and conquer strategy in which clients must make decisions without a full understanding of the evidence.

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