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The Benefits of Utilizing a Written Joint Defense Agreement Properly Tailored to Limit Future Conflicts
A recent decision from the U.S. District Court for the Southern District of Florida, United States v. Vuteff, illustrates a benefit of utilizing a written joint defense agreement properly tailored to limit future conflicts, rather than relying on the oral agreements that are common among many practitioners.
The court in Vuteff disqualified a lawyer whose former client was in an oral joint defense agreement with another individual who later "flipped" to cooperate with the government. It held that the agreement imposed a duty of confidentiality on the lawyer, which would be violated by the lawyer's use of information obtained through the joint defense to attack the cooperator's credibility.
This unfortunate scenario likely was avoidable. Applicable ethical guidance and case law indicate that such a disqualifying conflict can be obviated by a written joint defense agreement that expressly permits such use.
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