By Dan Portnov
Sometime this summer, perhaps as soon as mid-August, former National Security Advisor Michael Flynn will be sentenced by U.S. District Court Judge Emmet Sullivan. Flynn’s sentencing piques both pro-Trump and anti-Trump interest because he was one of the first of the president’s inner circle to fall.
As Flynn switched lawyers earlier this month, perhaps signaling a shift in his strategy for sentencing, Judge Sullivan also made news by ordering the release of a November 2017 voicemail from former Trump lawyer John Dowd to Flynn’s old lawyer. The topic? Flynn’s cooperation with Special Counsel Robert Mueller and withdrawal from a joint defense agreement with the President of the United States.
So just what is a joint defense agreement in the criminal context and why does it matter?
In a criminal investigation or prosecution, a joint defense agreement (“JDA”) is essentially an agreement between two or more parties who have common interests and want to preserve the attorney-client privilege for their communications. Basic contract principles govern its interpretation. The main added feature is that the JDA extends attorney-client privilege and the attorney work product protection to communications and documents shared among co-defendants (or in the case where the investigation is ongoing, similarly-situated parties). This allows counsel for the defendants to talk amongst themselves without fear that the government will learn about the content of those conversations.
Prosecutors don’t like JDAs very much, because they allow defendants to join forces to fight the case. But prosecutors aren’t supposed to ask about JDAs in the first place.
JDAs can be written or oral, invoked each time attorneys (and their clients) speak to each other. However, if the JDA is not reduced to writing and later questioned by either of the participants, it will put the question of privilege and attorney work product in the hands of a judge – not an ideal outcome.
Another distinguishing quality of the JDA is the possibility that one or more parties will withdraw from it in order to cooperate with the government. After all, depending on the jurisdiction, over 90% of criminal defendants end up taking guilty pleas. Thus, the primary objective of an attorney contemplating a JDA is to plan for eventual cooperation by one of the members.
Preparing for cooperation typically means adding certain provisions into the JDA:
- Define what “cooperation” means, or what event(s) would require a party to withdraw from the JDA. In some instances, a co-defendant or subject of investigation may make proffers to the government or make overtures signaling a willingness to cooperate. Depending on the language of the JDA, this may be enough to require that party to withdraw. In other cases, such as Manafort’s investigation and prosecution by the Special Counsel, one party cooperated (or feigned cooperation) with the government, all while remaining in the JDA and feeding information to his… ahem… “co-conspirator.” It appears that this maneuver was contemplated and even encouraged by the JDA.
- The withdrawing party should return all confidential materials and destroy electronic copies of the same.
- No party, at any time, may communicate or otherwise provide to the government confidential information obtained from co-defendants during participation in the JDA.
- Termination of the JDA must be in writing and may not be retroactive.
- If the case goes to trial, the withdrawing party may be cross-examined by defense counsel as to statements or information provided during participation in the JDA. Enforcement of this provision depends on the jurisdiction, as some federal Circuit Courts of Appeals have held that formerly privileged information may be used to impeach a testifying former JDA participant. One court went so far as to require a waiver provision permitting JDA participants to cross examine former participants using that person’s confidential information.
- The remedy for any breach or suspected breach of the JDA will be injunctive relief.
Having outlined some of the protections of the JDA in the likely event of cooperation by one of the members, there are a few core principles that we need to stress.
First, interviews of employees by corporate counsel, absent explicit affirmation of a JDA, are not subject to joint-defense privilege and may be disclosed by the company to the government throughout the course of its cooperation. This is a standard concept, reinforced by the Upjohn warning, which tells employees at the outset that no privilege exists between the company counsel and that individual; instead, the company retains privilege over all information collected. Even the presence of the employee’s counsel will not create a joint-defense privilege absent explicit agreement.
In that vein, the JDA applies only to communications in the presence of all counsel for the parties. Thus, two co-defendants speaking privately without their counsel would not expect their communication to be privileged. However, if one co-defendant communicates with another for the express purpose of obtaining legal advice, or at the specific direction of counsel, that conversation would be privileged.
It is worth noting that JDAs are commonly used among lawyers who know and trust each other. At times, the white-collar criminal defense bar can seem “clubby” and lawyers within it seem to refer cases to the same folks over and over. In part, that’s because there’s a need for a high level of trust among lawyers in a JDA situation. The stakes are high. If one party decides to violate the JDA – and share privileged, sensitive communications with the government – contractual remedies will not fix the situation. Although a JDA plays an important role in defense work, it’s only as solid as the trustworthiness of the participants in it.
Finally, insist on a written JDA where the expected exchange of information will be substantial. This will ensure that all parties understand the scope and conditions of the JDA, and minimize the possibility that a judge will have to validate or interpret the JDA later. This also obviates the need to orally confirm the JDA (and document that confirmation) each and every time attorneys and their clients speak.
In conclusion, the JDA is an important strategy in white-collar criminal defense and a valuable tool in preparing your potential defenses. Consequently, the decision to enter the agreement should be carefully considered by you and your counsel. Moreover, the contours of the JDA should be strictly observed, as even minor slips may trigger waiver of privilege that may impact multiple parties.
 He is also of much greater stature and renown than tertiary characters who pled guilty such as George Papadopoulos and Alex van der Zwaan; but less-obviously a villain than Paul Manafort.
 The JDA may also be called a common-interest agreement.
 See Murdoch v. Castro, 365 F.3d 699 (9th Cir. 2004). The Eleventh Circuit has ruled similarly in United States v. Almeida, 341 F.3d 1318 (11th Cir. 2003).
 United States v. Stepney, 246 F. Supp. 2d 1069 (N.D. Cal. 2003)
 An instruction resulting from the Supreme Court opinion in Upjohn Co. v. United States, 449 U.S. 383 (1981).