Common defence and common interest agreements can be effective instruments to promote client interests and reduce costs. The key is to do them properly so that they do not become the basis of litigation themselves. The court sided with the business counsel and concluded that there was no agreement and refused relief – Weissman`s incriminating statements were not privileged and could be used against him in court. Indeed, in February 2003 in Stepney, Judge Patel of the Northern District of California came to the opposite conclusion. The Tribunal found that the common defence agreements created only a duty of confidentiality limited to information actually shared within the group and that the agreement did not establish a “real” relationship between the lawyer and the client, whether implicit or otherwise, between the lawyers and the other members of the group. Indeed, the Tribunal has expressly made commitments arising from cooperation agreements with those created by effective relations between the lawyer and the client. Concerned about a proper trial, the safety of the accused and the constitutional rights of the accused, the court ordered the defence counsel to submit his JDA proposal to the court for cameraman verification. The Tribunal found that, because of its supervisory powers, it has an essential power to oversee its own affairs to ensure that justice is served. The Tribunal explained that many potential problems can be avoided by carefully developing common defence agreements. Fortunately for the new law firm, the Panthers Court turned around and decided that such situations created only a rebuttable presumption in favour of disqualification which, as there, by showing that the new law firm has effective screening procedures in place to ensure that confidential information is not disclosed to negative lawyers can be refuted.

But Panther has been published, and to date, no California court has ruled on this issue in the context of the common defense. Whether California courts will apply the automatic disqualification rule to this particular scenario remains open. Here are some tips to increase the likelihood that the common defense will protect the privilege. In addition, Patel J. rejected the rule of automatic disqualification and stated that “no conflict of interest arises unless the lawyer has actually received relevant confidential information.” Id. at 1080-81 (in addition). Where there is an essentially coherent conflict, the situation is more complex and nebulous. In the absence of an effective waiver provision in the agreement, the dispute, if not detected at the outset, will likely lead to automatic disqualification, as the new law firm will not have the opportunity to establish an ethical screen before the new lawyer arrives.

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