Friday, November 24, 2017

On Joint Defense Agreements (11/23/17)

Today's news includes an article indicating that Michael Flynn's lawyers had withdrawn from a joint defense/common interest agreement with President Trump's lawyers with respect to the acts being investigated by the Special Counsel, Robert S. Mueller III.  See A Split From Trump Indicates That Flynn Is Moving to Cooperate With Mueller (NYT 11/23/17), here.  Key excerpts are:
Lawyers for Michael T. Flynn, President Trump’s former national security adviser, notified the president’s legal team in recent days that they could no longer discuss the special counsel’s investigation, according to four people involved in the case — an indication that Mr. Flynn is cooperating with prosecutors or negotiating a deal. 
Mr. Flynn’s lawyers had been sharing information with Mr. Trump’s lawyers about the investigation by the special counsel, Robert S. Mueller III, who is examining whether anyone around Mr. Trump was involved in Russian efforts to undermine Hillary Clinton’s presidential campaign. 
That agreement has been terminated, the four people said. Defense lawyers frequently share information during investigations, but they must stop when doing so would pose a conflict of interest. It is unethical for lawyers to work together when one client is cooperating with prosecutors and another is still under investigation. 
The notification alone does not prove that Mr. Flynn is cooperating with Mr. Mueller. Some lawyers withdraw from information-sharing arrangements as soon as they begin negotiating with prosecutors. And such negotiations sometimes fall apart. 
Still, the notification led Mr. Trump’s lawyers to believe that Mr. Flynn — who, along with his son, is seen as having significant criminal exposure — has, at the least, begun discussions with Mr. Mueller about cooperating.
See also Why Trump should be nervous, but not panicking, after Michael Flynn’s lawyers cut off communication (WAPO 11/24/17), here.

For an interesting and entertaining comment on Trump's lawyer's reaction:  Hey Y’All, Jay Sekulow May Have No F**king Clue What He’s Doing (Above the Law 11/24/17), here.  The byline for the article is:  Trump's lawyer manages to put his foot in his mouth when "no comment" would have sufficed.

I thought this would be a good opportunity to offer readers some background on joint defense agreements.  I offer here the discussion of this topic in my, now discontinued publication, Federal Tax Crimes.  I discontinued this publication after writing Chapter 12: Criminal Penalties and the Investigation Function, in the publication Michael Saltzman and Leslie Book, IRS Practice and Procedure (Thomsen Reuters 2015).  Although discontinued, I think the excerpt on Joint Defense Agreements is still useful to understand the issues presented.

The key example I use in the excerpts is (footnotes omitted):
A and B are targets of a grand jury investigation.  A has engaged attorney X, and B has engaged you.  You and X are considering a JDA in which X will share with you otherwise privileged information he receives from A, and you likewise will share with X otherwise privileged information you receive from B.  A and B, and their respective attorneys, will commit under the JDA to maintain the confidentiality of the information so shared.  Is this really an attorney-client relationship between you and A?  If that is the case, can A object to your representing B if both are subsequently indicted or, worse, can the prosecutor urge that X and you are conflicted out in the criminal case because of that JDA?  Even if there is not strictly speaking a traditional full-bore attorney-client relationship between you and A, do you still have responsibilities to A with respect to using the information received from A or A’s attorney - specifically, can you use the information to benefit your client (B) even if it is adverse to A?  On a more mundane level, do you have to do a conflicts check with respect to A and will you thereafter be conflicted in future representation based upon the relationship between you and A under the JDA?  Can you continue to represent B if A’s and B’s interests diverge?  Should your client decide to plea bargain, can you bring to the negotiating table the information you learned from A (either directly or through A’s lawyer, X)?  Do you have malpractice exposure to A?
I discuss a Flynn-type situation as follows (footnotes omitted except that one footnote from a case is in the text):
IV. Risk of Government Discovery and Use of JDA Information. 
Suppose in our example, after both A and B are indicted, A reaches a plea agreement with the Government that compels his cooperation -- to wit providing information relevant to the Government’s case against B. Can A disclose the information learned from B or you pursuant to the JDA?  What is B’s remedy if A or A’s lawyer discloses information received pursuant to the JDA and, worse, if the Government uses that information against B to obtain an indictment and subsequently to obtain a conviction?  What is the value of the joint defense doctrine? 
By recognizing the joint defense doctrine in the first place, the courts recognize that it might provide some relief to B.  B will have to establish that there was a JDA in the first instance and the terms of the JDA.  Let’s assume B can do that, because his lawyer (you) was careful to get it in writing.  The existence of the JDA means that A should not disclose the protected information to the Government and, if he does, the Government should not use it directly or indirectly against B.   How can this be policed?  If B is required to show that the Government used or misused the tainted information, that can be daunting task indeed, because a defendant is usually unable to obtain access to the Government’s case from which a prohibited use could be shown.  The practical solution would be a Kastigar-like proceeding whereby the Government would have to show that it did not use the tainted evidence.  If use of the tainted evidence is proved or presumed because the Government is unable to show it was not used, the defendant will likely have the remedy of suppression or, in particularly egregious cases (e.g., where the defendant cooperates with the Government without notifying the other defendants and continues to attend the joint defense sessions) perhaps even a dismissal of the indictment. 
V. Risks Related to Trial Use of JDA Information. 
Under our example, if A and B are indicted, can the prosecution assert that the JDA, by rendering each attorney as the attorney for both A and B, seek to have them disqualified from representing either A or B on the grounds that each attorney is hopelessly conflicted?  Alternatively, assuming that they are not conflicted out of the representation at trial, what are the limits upon the use of the information at trial?  The latter question is most sharply presented if one of the parties – assume A in the example – begins cooperating with and becomes the star witness for the Government.  Can you, as the attorney for B but as the quasi-attorney for A pursuant to the JDA use information about A learned pursuant to the JDA against B in cross-examination? 
In United States v. Almeida, the Eleventh Circuit addressed this issue.  The Court distinguished the JDA from the prototypical joint representation where a lawyer undertakes the attorney-client representation of two or more persons.  The Court nevertheless appeared ultimately to accept the attorney-client metaphor for the joint defense doctrine and found implied waiver of the privilege where a member of the JDA (A in our example above) begins cooperating with the Government.  The result is that the other members of the JDG can use the information they learned from the member who is now cooperating with the Government (A in the example) even though it may not be in his (A’s) best interests.  The Court summarized its holding as follows: 
We hold that when each party to a joint defense agreement is represented by his own attorney, and when communications by one co-defendant are made to the attorneys of other co-defendants, such communications do not get the benefit of the attorney-client privilege in the event that the co-defendant decides to testify on behalf of the government in exchange for a reduced sentence. n21 The district court's error prevented the introduction of crucial evidence that would have significantly undermined the credibility of three of the Government's key witnesses. There is a reasonable possibility that the jury would not have convicted [B in our example] but for the district court's erroneous exclusionary ruling. The error was not harmless, and [B’s] conviction is therefore VACATED and the case is REMANDED for a new trial.  
   n21.  In the future, defense lawyers should insist that their clients enter into written joint defense agreements that contain a clear statement of the waiver rule enunciated in this case, thereby allowing each defendant the opportunity to fully understand his rights prior to entering into the agreement. See, e.g., Stepney, 246 F. Supp. 2d at 1084-86 (requiring that a written joint defense agreement include a provision that the attorney-client privilege is waived in the event that a co-defendant takes the stand against his accomplice, and citing the model joint defense agreement prepared by the American Law Institute and American Bar Association).
Other articles that are good introductions are:
  • Lee Ziffer, Joint defense agreements: the benefits and the risks (ABA News July 2013), here.
  • Kathryn M. Fenton, Conflict and Ethics Issues Arising from Joint Defense/Common Interest Relationships, the Antitrust Source (December 2000), here.

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