In United States v. Krug, 868 F.3d 82 (2nd Cir. 2017), the court held that the joint defense privilege did not apply to a conversation between defendants covered by a joint defense agreement where no lawyer participated in the conversation.  In this matter, three police officers were charged with depriving an individual of his constitutional rights while acting under color of law.  All three defendants, who were represented by separate counsel, entered into a joint defense agreement.  One defendant, Kwiatkowski, decided to cooperate with the government and was prepared to testify about a conversation with a second defendant, Wendel, which occurred before Kwaitkowski withdrew from the joint defense arrangement. The conversation at issue occurred in a hallway outside a meeting that included defense counsel; counsel was not present and was not within hearing distance of the hallway conversation.  The district court granted the motion and the appellate court reversed.  The appellate court explained that the Restatement (Third) of the Law Governing Lawyers § 76 cmt. d provides that the common interest rule applies to communications among the lawyer, agents of the client or of the lawyer “who facilitate communications between” the client and the lawyer, and the “agents of the lawyer who facilitate the representation.”  The court explained that the Second Circuit has stated that it is not “necessary for the attorney representing the communicating party to be present when the communication is made to the other party’s attorney” under a common interest agreement, so long as the communication is made in confidence for the purpose of obtaining legal advice from the lawyer.  Finding that the hallway discussion was not made for the purpose of obtaining legal advice, the court held that the common interest rule did not apply and the witness would be allowed to testify about the conversation.