A Joint-Defense Agreement (JDA) can be an extremely valuable tool in coordinating defenses against pending or impending prosecution, as it formalizes the creation of a zone of privilege in which co-defendants and their counsel can exchange confidential information without fear of compelled disclosure. But as the Circuit’s recent decision in United States v. Krug, No. 16-4136 (Leval, Pooler, Hall) (Aug. 18, 2017) exemplifies, a JDA protects communications between co-defendants only insofar as they further the provision of legal advice. A JDA cannot transform the joint-defense group’s communications relating to business, personal, or other non-legal issues into privileged discussions. As happened here, such non-privileged statements can become part of the government’s case at trial.

In Krug, the Circuit considered whether the district court (W.D.N.Y., Skretny, J.) had properly precluded the government from introducing testimony from a co-defendant-turned-cooperating-witness regarding a “hallway discussion” involving defendant Raymond Krug and another co-defendant in the joint-defense group. The government appealed Judge Skretny’s ruling just days before trial was scheduled to begin, pursuant to 18 U.S.C. § 3731, which allows the government to take an interlocutory appeal if the district court suppresses or excludes evidence prior to trial.

According to the Circuit, the discussion entailed “[o]ne member of the JDA . . . conveying his independent non-legal research to another member of the JDA (Krug) while noting he had sent the same research to his attorney”; the exact substance is redacted in the publicly filed opinion. Krug argued that even though no attorney was present, the substance of that discussion was privileged pursuant to the terms of his JDA with co-defendants and the common-interest doctrine.

The Circuit began its discussion with a brief primer on the elements of and policy underlying the attorney-client privilege and “the joint-defense privilege, more properly identified as the common-interest rule.” Citing the Restatement (Third) of the Law Governing Lawyers, the Circuit noted that the common-interest rule, despite “somewhat relax[ing]” the attorney-client privilege’s requirement of confidentiality “by defining a widened circle of persons to whom clients may disclose privileged communication,” only affords protection to information exchanged between co-parties “if made for the purpose of communicating with a privileged person,” such as a lawyer or her agent. Therefore, while the presence of an attorney would not have been essential for privilege to attach to the hallway discussion, the substance of that discussion did not qualify for privilege. Specifically, “the excluded statements were not made for the purpose of obtaining legal advice from a lawyer, nor did the excluded statements share among defendants advice given by a lawyer, nor did the excluded statements seek to facilitate a communication with a lawyer” (although the Circuit was careful to note that it “express[ed] no view as to whether all such circumstances would invoke the privilege”). All Krug had established was that “the communications were among co-defendants who had joined in a joint defense agreement,” which could not alone justify application of common-interest protection.

Krug serves as an object lesson to defense lawyers of the need to carefully instruct their clients on the boundaries of a JDA and what types of communications fall within (and without) its scope. Most importantly, clients should understand that the joint-defense group is an extension of the attorney-client relationship, and despite the broader audience with which privileged information can be shared, the touchstone for privilege in that setting remains furthering the rendition of legal advice. In general, the best advice to give your client is not to speak to any of their co-defendants (or potential future co-defendants), if it can be avoided, and certainly not to speak about anything relating to the case without an attorney present. Even if defendant-to-defendant conversations are covered by the particular JDA, defendants may not fully understand the legal limitations on such conversations (i.e., that they must relate in some fashion to the provision of legal advice by lawyers). The government will look dimly on such conversations and, as happened here, the conversations can provide evidence for the government’s case at trial.