Withdrawing From Joint Defense Agreement

In the context of class actions, where an applicant generally makes similar claims against many defendants in a particular sector, coordinating defence efforts between co-accused may be a very prudent approach. By working together to develop a common process strategy and defence, competitors can pool their knowledge, know-how and resources to achieve the most beneficial outcome for their respective clients. However, this practice is tainted by anti-personnel mines that can have devastating effects on clients and practitioners. In complex mass crimes, different lawyers necessarily represent different clients on issues of common interest. While formulating a common defence is a collective effort, lawyers involved in multi-defendant mass actions should not lose sight of the need to share work products and confidential information with their competitors, which has the potential to leave clients exposed and pave the way for future disputes between co-defendants. Moreover, in the absence of preventive safeguards prior to the formulation of a common defence – a carefully crafted joint defence agreement – lawyers may find themselves in a large number of conflicts of interest and waiver issues, unknowingly establish a relationship between counsel and client with other co-accused and ultimately expose themselves to liability for wrongdoing. Therefore, it is important that all mass advocates: 1) understand the benefits of a common defence; 2) determine when a common defence agreement can be invoked; 3) know why it is essential to develop a common defence agreement carefully; and 4) learn how to protect a common defence agreement that best protects the interests of the lawyer and the client. Four key questions 1. What is axiomatic is that solicitor-client privilege traditionally protects confidential communication between a lawyer and a client seeking legal advice. The confidentiality of the communication in question is of the utmost importance, as privilege only protects communication between lawyers and clients intended to remain private.

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