Lawyers have a positive obligation to resolve a conflict of interest if it arises during joint representation. It is a very common practice for lawyers of completeists or civil parties to enter into agreements that protect their communications. Agreements are statements of intent that communication is protected by the Common Interest Doctrine, which extends a lawyer`s privilege to discussions with parties who share a common interest. According to the doctrine, the privilege of a lawyer is not abandoned when such communications take place between parties who share a common legal interest. If the agreement is oral, you indicate in your notes at each meeting that the discussion took place within the framework of a common oral defence agreement. Before accepting joint representation, counsel should determine whether the interests of the accused are contrary to one another, which is often very difficult to predict. Problems can arise if the defence of an accused does not match the defence of his co-accused. For example, if only one accused is truly responsible, the lawyer may face the problem of allowing testimony that would exonerate one accused and incriminate the other. The common defence or general interest privilege protects the sharing of the work product between the parties as well as the communication between the lawyer and the client.
A joint defence agreement does not prohibit an accused from testifying to facts that he knew before entering the common defence. If the agreement is in writing, design it carefully so that the lawyer is not disqualified if his client leaves the joint defense agreement and offers to testify against the other defendants. After the stakes in Ambac and 59 p. 4th LLC, any lawyer who plans to enter into an agreement of common interest must be taken into account that these agreements are not automatically maintained. Instead, attentive practitioners should confirm whether their situation complies with the requirements mentioned at Ambac above, or consider their private communications as unprotected. In granting the broker`s application, the Tribunal confirmed the limited applicability of the doctrine of common interest as presented by the Ambac Court of Appeal.