Court-Imposed Waiver of the Joint-Defense Privilege

Most defense attorneys enter into joint-defense agreements with the understanding that even if one of the signatories decides to withdraw from the agreement and cooperate with the government, the confidentiality provisions survive. Such agreements routinely include language like this:

“In the event that any client … engages in negotiations or enters into any agreement with any third party that is in any respect … inconsistent with the continued sharing of information under this Agreement, such client shall be deemed to have withdrawn from this Agreement and shall refrain from disclosing to the third party any joint-defense materials.

No attorney who has entered into this Agreement shall be disqualified from cross-examining any client to this Agreement … because of … [this] Agreement; however, nothing herein shall permit any attorney to cross-examine another attorney's client utilizing any joint-defense material contributed by that client.”

Two recent decisions — by the Eleventh Circuit and the Northern District of California — have called provisions like these into question: United States v. Almeida, 341 F.3d 1318 (11th Cir. 2003); and United States v. Stepney, 246 F. Supp.2d 1069 (N.D. Cal. 2003). Any defense attorney who is considering entering into such an agreement should think twice – especially if some party may choose, down the road, to cooperate with the government.

For years it has been well established that “a joint defense agreement cannot be waived without the consent of all parties to the privilege” since allowing unilateral waiver “would 'whittle away' the privilege.” United States v. Weissman, 1996 WL 737042 at *26 (S.D.N.Y. Dec. 26, 1996) (emphasis added); In the Matter of Grand Jury Subpoena Duces Tecum Dated November 16, 1994, 406 F. Supp 381, 394 (S.D.N.Y. 1975). Further, “a waiver by one party to a joint defense agreement does not waive any other party's privilege over the same communications.” Securities Investor Protection Corp. v. Stratton Oakmont, Inc., 213 B.R. 433, 436 (S.D.N.Y. 1997). The only exception is when the parties subsequently become adversaries in litigation. Id. Even then, the waiver is only as to each other.

Stratton Oakmont

In Stratton Oakmont, the government argued that it was entitled to joint-defense material because the parties to the joint defense agreement became adversaries in a subsequent litigation. The court rejected the government's argument, stating the fact that the signatories had become adversaries did not mean that the “rest of the world suddenly becomes entitled to privileged information.” Id. at 438.

Under the standard no-waiver provision, a client runs the risk of having his or her attorney disqualified because of an inability to use joint-defense information during cross-examination. Nevertheless, courts have generally not second-guessed the client's assumption of this risk. Potential defendants are so disadvantaged vis-'-vis the government in evidence-gathering that the risk of potentially losing one's lawyer is small compared with the risk of not having the facts with which to prepare an effective defense. Indeed, at least one court has even deemed the acceptance of this risk tantamount to a waiver of any conflict. United States v. Anderson, 790 F. Supp. 231, 232 (W.D. Wash. 1992).

The Stepney and Almeida Cases

The Stepney and Almeida decisions, however, chart a very different course. Both cases held that when a party to a joint-defense agreement testifies on behalf of the government, that party may be cross-examined with statements he or she made pursuant to the joint-defense agreement.

In Stepney, the government charged almost 30 defendants in a series of indictments with 70 counts, including participation in a street gang. Defense counsel, some of whom had never met prior to the indictments, entered into joint-defense agreements to try to prepare a coherent defense to this massive case. In order to ensure that each of the defendants' Sixth Amendment rights were protected, the court ordered that any joint-defense agreements would have to be memorialized in writing and submitted for in camera review.

The agreement provided that any signatory could withdraw at any time, each signatory accepting the risk that his or her attorney might then be conflicted out of representing him or her at trial. The court recognized that in this type of multi-defendant case, deals with the government could occur at any time for any number of defendants and enforcing disqualification could create a revolving door of attorneys leading to adjournments and prejudice to all parties. Were one party to testify for the government, all the remaining defense attorneys could be disqualified.

The court also rejected the standard provision in which the signatories simply agree not to use joint-defense information to cross-examine a party who withdraws from the agreement. “This method of waiving conflict … stands in tension with the general principle that where an attorney has actually obtained confidential information relevant to her representation of a client, the law presumes she cannot avoid relying on the information – however indirectly or unintentionally – in forming legal advice and trial strategy.” 246 F.Supp.2d at 1085. Instead, the court, citing the ALI-ABA model joint-defense agreement, ruled that any signatory who withdraws from a joint-defense agreement and testifies may be cross-examined with any material he contributed to the joint defense and that joint-defense agreements “must contain” a provision specifically waiving confidentiality should a signatory choose to testify.

Almeida involved two parties to a joint-defense agreement, one of whom decided to cooperate with the government. At trial, the attorney for the non-cooperating defendant sought to cross-examine the cooperator with statements he made during joint-defense meetings. The government objected on the grounds of the joint-defense privilege. The witness, while not revealing joint-defense material, conceded to the court that the information would be useful both in cross-examining him and in locating defense witnesses. Nonetheless, the court sustained the objection. After the defendant was convicted, the cooperator revealed that the defendant was, in fact, not guilty and that he had told the defendant's attorney as much during a joint-defense meeting.

The Eleventh Circuit, citing Stepney, reversed. The court said the “justification for protecting the confidentiality” of joint-defense communications “is weak” and that “little can be gained by extending the [attorney-client] privilege” to joint defense communications.” 341 F.3d at 1324. The court only grudgingly acknowledged that “in light of the vast resources of the government” it is “perhaps appropriate” that co-defendants be allowed to exchange information confidentially.

The court then went on to rule that, when a party to a joint-defense agreement later testifies for the government, he may be cross-examined with his joint-defense communications. Citing a 1957 A.L.R. article and a 115-year-old Michigan case, the court concluded that it is an “ancient rule” that, when a defendant turns state's evidence, he waives any privilege he may have had with his own attorney. Although the court stopped short of ruling that accomplices always waive the privilege when they testify for the government, it did hold that, “when each party to a joint defense agreement is represented by his own attorney, and when communications by one co-defendant are made to the attorneys of the other co-defendants, such communications do not get the benefit of the attorney-client privilege in the event that the codefendant decides to testify on behalf of the government in exchange for a reduced sentence.” In a footnote, the court stated that “[i]n the future” defense attorneys “should insist” that joint-defense agreements contain a “clear statement of the waiver rule enunciated in this case[.]”

The implications of these decisions are potentially far-reaching. Whereas in the past the courts left it up to the parties to decide what risks they were willing to accept in signing joint-defense agreements, the Stepney and Almeida courts have stepped in and pronounced which waivers they believe are acceptable, even going so far as to require defense counsel to include such provisions in their joint-defense agreements.

Although these rulings may avoid the sort of injustice that occurred in Almeida by enabling defense counsel to show that a government cooperator is simply fabricating a story to help himself, the justification for the judicial altering of the balance of benefits and risks inherent in joint-defense agreements is open to question. Why not enforce an agreement that permits withdrawal without any risk of disqualification by limiting the use of joint-defense statements in cross-examination?

Other Concerns

Other concerns were not even addressed in these decisions. How will a prosecutor fully debrief a cooperator about his or her joint-defense statements in order to be prepared for any potential impeachment on cross-examination? Won't he or she need to know the other side of the conversation to understand the cooperator's statements fully? Will a prosecutor use Stepney and Almeida to justify obtaining all the joint-defense communications?

Moreover, the rulings may jeopardize the privilege of a non-cooperating defendant who testifies on his or her own behalf. Indeed, the court in Stepney ruled that its mandatory waiver provision covers “any defendant who testifies at any proceeding, whether under a grant of immunity or otherwise.” 246 F.Supp.2d at 1086 n.21 (emphasis added).

If a non-cooperating defendant gave testimony contrary to his joint-defense statements, could a cooperator reveal this to the prosecutor, and could the prosecutor then use those statements to cross-examine the defendant? If a non-cooperating defendant testified and sought to shift blame onto his or her co-defendant in a manner contrary to his joint-defense statements, would these courts uphold the co-defendant's use of those statements in cross-examination? After Stepney and Almeida, the answers to these questions are far from clear, no matter what the joint-defense agreement may provide.

Most defense attorneys enter into joint-defense agreements with the understanding that even if one of the signatories decides to withdraw from the agreement and cooperate with the government, the confidentiality provisions survive. Such agreements routinely include language like this:

“In the event that any client … engages in negotiations or enters into any agreement with any third party that is in any respect … inconsistent with the continued sharing of information under this Agreement, such client shall be deemed to have withdrawn from this Agreement and shall refrain from disclosing to the third party any joint-defense materials.

No attorney who has entered into this Agreement shall be disqualified from cross-examining any client to this Agreement … because of … [this] Agreement; however, nothing herein shall permit any attorney to cross-examine another attorney's client utilizing any joint-defense material contributed by that client.”

Two recent decisions — by the Eleventh Circuit and the Northern District of California — have called provisions like these into question: United States v. Almeida , 341 F.3d 1318 (11th Cir. 2003); and United States v. Stepney , 246 F. Supp.2d 1069 (N.D. Cal. 2003). Any defense attorney who is considering entering into such an agreement should think twice – especially if some party may choose, down the road, to cooperate with the government.

For years it has been well established that “a joint defense agreement cannot be waived without the consent of all parties to the privilege” since allowing unilateral waiver “would 'whittle away' the privilege.” United States v. Weissman, 1996 WL 737042 at *26 (S.D.N.Y. Dec. 26, 1996) (emphasis added); In the Matter of Grand Jury Subpoena Duces Tecum Dated November 16, 1994, 406 F. Supp 381, 394 (S.D.N.Y. 1975). Further, “a waiver by one party to a joint defense agreement does not waive any other party's privilege over the same communications.” Securities Investor Protection Corp. v. Stratton Oakmont, Inc. , 213 B.R. 433, 436 (S.D.N.Y. 1997). The only exception is when the parties subsequently become adversaries in litigation. Id. Even then, the waiver is only as to each other.

Stratton Oakmont

In Stratton Oakmont, the government argued that it was entitled to joint-defense material because the parties to the joint defense agreement became adversaries in a subsequent litigation. The court rejected the government's argument, stating the fact that the signatories had become adversaries did not mean that the “rest of the world suddenly becomes entitled to privileged information.” Id. at 438.

Under the standard no-waiver provision, a client runs the risk of having his or her attorney disqualified because of an inability to use joint-defense information during cross-examination. Nevertheless, courts have generally not second-guessed the client's assumption of this risk. Potential defendants are so disadvantaged vis-'-vis the government in evidence-gathering that the risk of potentially losing one's lawyer is small compared with the risk of not having the facts with which to prepare an effective defense. Indeed, at least one court has even deemed the acceptance of this risk tantamount to a waiver of any conflict. United States v. Anderson , 790 F. Supp. 231, 232 (W.D. Wash. 1992).

The Stepney and Almeida Cases

The Stepney and Almeida decisions, however, chart a very different course. Both cases held that when a party to a joint-defense agreement testifies on behalf of the government, that party may be cross-examined with statements he or she made pursuant to the joint-defense agreement.

In Stepney, the government charged almost 30 defendants in a series of indictments with 70 counts, including participation in a street gang. Defense counsel, some of whom had never met prior to the indictments, entered into joint-defense agreements to try to prepare a coherent defense to this massive case. In order to ensure that each of the defendants' Sixth Amendment rights were protected, the court ordered that any joint-defense agreements would have to be memorialized in writing and submitted for in camera review.

The agreement provided that any signatory could withdraw at any time, each signatory accepting the risk that his or her attorney might then be conflicted out of representing him or her at trial. The court recognized that in this type of multi-defendant case, deals with the government could occur at any time for any number of defendants and enforcing disqualification could create a revolving door of attorneys leading to adjournments and prejudice to all parties. Were one party to testify for the government, all the remaining defense attorneys could be disqualified.

The court also rejected the standard provision in which the signatories simply agree not to use joint-defense information to cross-examine a party who withdraws from the agreement. “This method of waiving conflict … stands in tension with the general principle that where an attorney has actually obtained confidential information relevant to her representation of a client, the law presumes she cannot avoid relying on the information – however indirectly or unintentionally – in forming legal advice and trial strategy.” 246 F.Supp.2d at 1085. Instead, the court, citing the ALI-ABA model joint-defense agreement, ruled that any signatory who withdraws from a joint-defense agreement and testifies may be cross-examined with any material he contributed to the joint defense and that joint-defense agreements “must contain” a provision specifically waiving confidentiality should a signatory choose to testify.

Almeida involved two parties to a joint-defense agreement, one of whom decided to cooperate with the government. At trial, the attorney for the non-cooperating defendant sought to cross-examine the cooperator with statements he made during joint-defense meetings. The government objected on the grounds of the joint-defense privilege. The witness, while not revealing joint-defense material, conceded to the court that the information would be useful both in cross-examining him and in locating defense witnesses. Nonetheless, the court sustained the objection. After the defendant was convicted, the cooperator revealed that the defendant was, in fact, not guilty and that he had told the defendant's attorney as much during a joint-defense meeting.

The Eleventh Circuit, citing Stepney, reversed. The court said the “justification for protecting the confidentiality” of joint-defense communications “is weak” and that “little can be gained by extending the [attorney-client] privilege” to joint defense communications.” 341 F.3d at 1324. The court only grudgingly acknowledged that “in light of the vast resources of the government” it is “perhaps appropriate” that co-defendants be allowed to exchange information confidentially.

The court then went on to rule that, when a party to a joint-defense agreement later testifies for the government, he may be cross-examined with his joint-defense communications. Citing a 1957 A.L.R. article and a 115-year-old Michigan case, the court concluded that it is an “ancient rule” that, when a defendant turns state's evidence, he waives any privilege he may have had with his own attorney. Although the court stopped short of ruling that accomplices always waive the privilege when they testify for the government, it did hold that, “when each party to a joint defense agreement is represented by his own attorney, and when communications by one co-defendant are made to the attorneys of the other co-defendants, such communications do not get the benefit of the attorney-client privilege in the event that the codefendant decides to testify on behalf of the government in exchange for a reduced sentence.” In a footnote, the court stated that “[i]n the future” defense attorneys “should insist” that joint-defense agreements contain a “clear statement of the waiver rule enunciated in this case[.]”

The implications of these decisions are potentially far-reaching. Whereas in the past the courts left it up to the parties to decide what risks they were willing to accept in signing joint-defense agreements, the Stepney and Almeida courts have stepped in and pronounced which waivers they believe are acceptable, even going so far as to require defense counsel to include such provisions in their joint-defense agreements.

Although these rulings may avoid the sort of injustice that occurred in Almeida by enabling defense counsel to show that a government cooperator is simply fabricating a story to help himself, the justification for the judicial altering of the balance of benefits and risks inherent in joint-defense agreements is open to question. Why not enforce an agreement that permits withdrawal without any risk of disqualification by limiting the use of joint-defense statements in cross-examination?

Other Concerns

Other concerns were not even addressed in these decisions. How will a prosecutor fully debrief a cooperator about his or her joint-defense statements in order to be prepared for any potential impeachment on cross-examination? Won't he or she need to know the other side of the conversation to understand the cooperator's statements fully? Will a prosecutor use Stepney and Almeida to justify obtaining all the joint-defense communications?

Moreover, the rulings may jeopardize the privilege of a non-cooperating defendant who testifies on his or her own behalf. Indeed, the court in Stepney ruled that its mandatory waiver provision covers “any defendant who testifies at any proceeding, whether under a grant of immunity or otherwise.” 246 F.Supp.2d at 1086 n.21 (emphasis added).

If a non-cooperating defendant gave testimony contrary to his joint-defense statements, could a cooperator reveal this to the prosecutor, and could the prosecutor then use those statements to cross-examine the defendant? If a non-cooperating defendant testified and sought to shift blame onto his or her co-defendant in a manner contrary to his joint-defense statements, would these courts uphold the co-defendant's use of those statements in cross-examination? After Stepney and Almeida, the answers to these questions are far from clear, no matter what the joint-defense agreement may provide.