On August 18, 2017, in United States v. Krug, the Second Circuit revisited the boundaries of attorney-client privilege in the context of joint defense agreements, reversing a district court order to preclude testimony of a cooperating co-defendant. The decision serves as a useful reminder of certain best practices when participating in joint defense (or “common interest”) agreements to ensure that the communications are protected by the privilege.
The defendants were Buffalo police officers who had allegedly used excessive force on an arrestee. The communications at issue, which were redacted from the Court’s publicly-filed decision, involved a conversation in a court hallway between co-defendants who had entered into a joint defense agreement about one defendant’s “independent, non-legal research” that had also been conveyed by that defendant to his attorney. The communications occurred outside the presence of any lawyer, though the lawyers for the defendants were nearby and had recently been in communication with their clients. Ultimately one of the co-defendants decided to cooperate with the government, and the prosecutors disclosed the discussion, and their intention to offer testimony about it to the defense. One of the defendants moved in limine to exclude that testimony. The district court granted the motion, and the government appealed.
The Second Circuit, in an opinion by Judge Pooler, reversed. In doing so, the Second Circuit first surveyed the state of the law relating to joint defense agreements, noting that “‘a communication directly among the clients is not privileged unless made for the purpose of communicating with a privileged person’” such as to a client’s lawyer or agents of the lawyer or client who “‘facilitate communications between’ the client and the lawyer.”[1] Judge Pooler acknowledged that the “‘attorney representing the communicating party’” need not be present “‘when the communication is made to the other party’s attorney’ under a common interest agreement.”[2] Further, “[w]hat is vital to the privilege is that the communication be made in confidence for the purpose of obtaining legal advice from the lawyer.”[3]
Turning to the facts of the case, the Court concluded that the communications in this case should not be precluded at trial because they were made outside of the presence of the nearby lawyers, they were not made for the purpose of obtaining legal advice from a lawyer, and they did not convey any advice given by a lawyer or try to facilitate a communication with a lawyer. The Court explained that the “mere fact that the communications were among co-defendants who had joined in a joint defense agreement is, without more, insufficient to bring such statements within the attorney-client privilege.”[4]
While the facts of the case are somewhat limited, the decision serves as a useful reminder of the limits of a joint defense agreement and how best to ensure that communications are protected under the common interest or joint defense doctrine. Most notably, it is safest to limit communications to the lawyers for the different clients (and for the clients not to be discussing the case directly, except in the presence of lawyers). While lawyers do not always need to be present when the case is discussed, conversations outside the presence of lawyers will be closely scrutinized, and any conversations related to the case should be for the purpose of obtaining or conveying legal advice. In addition, while outside the scope of the opinion, it is helpful to note, and document, that any communications—whether lawyer to lawyer, lawyer to client, or client to client—are to be made pursuant to a joint defense agreement or common interest privilege before engaging in those discussions.
The Second Circuit’s decision in United States v. Krug can be found here.
[1] Slip op. at 10 (quoting Restatement (Third) of the Law Governing Lawyers).
[2] Slip op. at 10-11 (quoting United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir. 1989)).
[3] Slip op. at 11 (quoting United States v. Kovel, 296 F.2d 918, 922 (2d Cir. 1961) (emphasis in original)).
[4] Slip op. at 11.