This scenario shows that each member of a common advocacy group necessarily places a lot of trust in other lawyers. So if you`re considering such an agreement, make sure you “know” the other lawyers. A civil case, Essex, illustrates this point. There, a New Jersey District Court judge issued an order disqualifying all members of a joint advocacy group. The order followed the finding that one of the companies had previously represented the applicant in related cases. According to this presentation, the company was retained by one of the defendants to defend it in another lawsuit. The accused and their lawyer reached a joint defence agreement. As a result, the court found that an unspoken relationship was established between the lawyer and the client between all the lawyers in the common defence group and all the clients. In addition, the judge found that this relationship created an irrefutable presumption that each company was aware of the applicant`s confidential information. Essex Chemical Corp. v. Hartford Accident and Indemnity Co., 975 F. Supp.
650 (D.C.N.J. 1997) was created by the District Court Judge of Essex Chemical Corp. v. Hartford Accident and Indemnity Co., 993 F. Supp. 241 (D.C.N.J. 1998). Commercial transactions, disputes and disputes often involve several clients with concerted interests, but with different lawyers. Clients and their advisors often want to communicate with other clients and consultants without risking renouncing existing privileges or immunities.
Clients and legal advisers can benefit from the options developed by the courts, including through the common defence or the common interest. The accused learned that the difficult path in the United States v. Krug.  In Krug, a written JDA was concluded by co-accused and their lawyers. After the agreement was implemented, the co-accused had a discussion on issues related to their case. The court found that the corridor discussions were not protected by the JDA and could be used as evidence against it during the trial. 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). While most jurisdictions do not require formal written agreement to recognize a common defence privilege, the best method is to document the extent, duration, limits and parties to the common privilege of the defence. Companies involved in a sale or merger or trying to attract investors may wish to exchange legal advice from their advisors on the strength of their intellectual property. Lawyers should be cautious in this area, as Federal Court decisions are inconsistent as to the applicability of common defence privilege. (The issue arises primarily in the Federal Court of Justice, where patent litigation takes place.) If the protection is critical before the client shares inside information with a buyer or investor, a lawyer should research the relevant jurisdiction and inform the client of the risks associated with the waiver.