For the Defense - Vol. 7, Issue 1 - 13

Navigating Joint Defense Agreements
in the Context of a Pennsylvania
Investigating Grand Jury
oint Defense Agreements are common in multidefendant
cases, allowing counsel to share strategies,
resources, and knowledge. In the context of an
investigating grand jury, however, counsel must walk
a fine line between their secrecy obligations under the
Pennsylvania Investigating Grand Jury Act and their right
to share information under a joint defense agreement.
The Pennsylvania Supreme Court's 2018 decision in In
re Fortieth Statewide Investigating Grand Jury ( " In re
Fortieth " )1
provided some clarity to this issue, but the
scope of information that counsel may share under a joint
defense agreement continues to be the subject of litigation
and debate. This article provides practitioners with insights
into joint defense agreements in the grand jury context,
issues to consider when entering into such an agreement,
and balancing the tension between sharing information
under an agreement and counsel's secrecy obligations.
If implemented properly, joint defense agreements can
be an extremely effective tool in representing a client
subpoenaed by a Pennsylvania investigating grand jury.
The Joint Defense Privilege
The attorney-client privilege is typically waived when
otherwise privileged communications are disclosed to
J
third parties.2
doctrine is an exception to this general rule.3
Ashley E. Shapiro
and Meredith A. Lowry
When applicable, the joint defense privilege
The joint
defense doctrine protects confidential communications
exchanged between separately represented parties and
their attorneys in furtherance of a joint defense strategy.4
The purpose of this privilege is to protect " the free flow
of information " when multiple clients agree to pursue a
joint legal strategy.5
For the joint defense privilege to apply in Pennsylvania,
the privilege-holder must demonstrate the following four
elements. First, the parties must have agreed to enter
into a joint defense agreement. Second, all members to
the agreement must share " a common interest in the
litigation or a jointly shared litigation strategy. " Third,
the communications were made in furtherance of the
agreement. Fourth, the communications remained
confidential and were not disclosed to other third parties.6
Preserving the confidentiality of communications is
crucial under the joint defense doctrine, just as it is in
the attorney-client privilege context.7
The privilege only
protects communications that are " given in confidence
and that the client reasonably understood it to be so
given. " 8
A party may disclose their own communications,9
Vol. 7, Issue 1 l For The Defense 13

For the Defense - Vol. 7, Issue 1

Table of Contents for the Digital Edition of For the Defense - Vol. 7, Issue 1

Contents
For the Defense - Vol. 7, Issue 1 - 1
For the Defense - Vol. 7, Issue 1 - 2
For the Defense - Vol. 7, Issue 1 - Contents
For the Defense - Vol. 7, Issue 1 - 4
For the Defense - Vol. 7, Issue 1 - 5
For the Defense - Vol. 7, Issue 1 - 6
For the Defense - Vol. 7, Issue 1 - 7
For the Defense - Vol. 7, Issue 1 - 8
For the Defense - Vol. 7, Issue 1 - 9
For the Defense - Vol. 7, Issue 1 - 10
For the Defense - Vol. 7, Issue 1 - 11
For the Defense - Vol. 7, Issue 1 - 12
For the Defense - Vol. 7, Issue 1 - 13
For the Defense - Vol. 7, Issue 1 - 14
For the Defense - Vol. 7, Issue 1 - 15
For the Defense - Vol. 7, Issue 1 - 16
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For the Defense - Vol. 7, Issue 1 - 18
For the Defense - Vol. 7, Issue 1 - 19
For the Defense - Vol. 7, Issue 1 - 20
For the Defense - Vol. 7, Issue 1 - 21
For the Defense - Vol. 7, Issue 1 - 22
For the Defense - Vol. 7, Issue 1 - 23
For the Defense - Vol. 7, Issue 1 - 24
For the Defense - Vol. 7, Issue 1 - 25
For the Defense - Vol. 7, Issue 1 - 26
For the Defense - Vol. 7, Issue 1 - 27
For the Defense - Vol. 7, Issue 1 - 28
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