For the Defense - Vol. 7, Issue 1 - 14

but one party may not " unilaterally waive the privilege as
to any of the other joint clients' communications or as to
any of [the disclosing party's] communications that relate
to other joint clients. " 10
Moreover, the joint defense privilege only protects
communications made in the presence of counsel.11
Any
communications between separately represented parties,
outside of the presence of their attorneys, will result in
a privilege waiver.12
Pennsylvania appellate courts have
not addressed whether attorneys for both parties must be
present to protect communications, but it is well-settled
that " at least one attorney must participate for the
privilege to apply. " 13
About Joint Defense Agreements
A joint defense agreement is the vehicle that extends
the attorney-client privilege to communications between
counsel representing separate parties. So long as the parties
share a sufficient common legal interest, the agreement
itself gives rise to a joint defense privilege. Under joint
defense agreements, participants are permitted to freely
share discovery and work product, pool resources, and to
conduct joint investigations without waiving the attorneyclient
privilege.14
These agreements promote efficiency,
Pursuing a
cost savings, avoid duplicative evidence at trial, and help
counsel avoid inconsistent legal positions.15
joint legal strategy among co-defendants " may be the
key to preparing an effective defense " as the participants
have access to information that they would not have
otherwise.16
An essential component to a joint defense agreement
is the parties' common legal interest.17
for the parties to share a common financial interest18
a shared desire for the same result in a legal matter.19
It is not enough
or
A
simple example of parties who share a common legal
interest are those in the same litigation who share a
common adversary.20
co-defendants charged in the same matter, for example,
may be defined " according to the contours of a particular
charging instrument. " 21
Joint defense agreements may also
arise in other contexts, including criminal investigations.22
Ultimately, this inquiry is fact-specific and parties must
identify their shared legal interest at the outset of a joint
defense agreement.
Tension Between Grand Jury Secrecy and InformationSharing
Under a Joint Defense Agreement
In Pennsylvania, the common interest and joint defense
privilege extends to the grand jury setting.23
However,
grand jury proceedings are conducted under the rule of
secrecy and often create many questions as to the level
of secrecy that is imposed. The secrecy in which the grand
jury operates serves multiple critical purposes:
14 For The Defense l Vol. 7, Issue 1
The common legal interest among
(1) to prevent the escape of those whose indictment may
be contemplated, (2) to insure the utmost freedom to the
grand jury in its deliberations, and to prevent persons
subject to indictment or their friends from importuning
the grand jurors, (3) to prevent subornation of perjury
or tampering with the witnesses who may testify before
grand jury and later appear at the trial of those indicted
by it, (4) to encourage free and untrammeled disclosures
by persons who have information with respect to the
commission of crimes, and (5) to protect innocent
accused who is exonerated from disclosure of the fact
that he has been under investigation.24
The relevant
statute, 42 Pa.C.S. § 4549(b) states:
(b) Disclosure of proceedings by participants
other
than witnesses. Disclosure of matters
occurring before the grand jury other than its
deliberations and the vote of any juror may be made
to the attorneys for the Commonwealth for use
in the performance of their duties. The attorneys
for the Commonwealth may with the approval of
the supervising judge disclose matters occurring
before the investigating grand jury including
transcripts of testimony to local, State, other
state or Federal law enforcement or investigating
agencies to assist them in investigating crimes
under their investigative jurisdiction. Otherwise a
juror, attorney, interpreter, stenographer, operator
of a recording device, or any typist who transcribes
recorded testimony may disclose matters occurring
before the grand jury only when so directed by the
court. All such persons shall be sworn to secrecy,
and shall be in contempt of court if they reveal any
information which they are sworn to keep secret.
The grand jury judge is tasked with maintaining the
secrecy and integrity of grand jury proceedings.25
A witness subpoenaed by an investigating grand jury in
Pennsylvania has the right to the assistance of counsel,26
and as the Pennsylvania Supreme Court recently
acknowledged in its 2018 decision in In re Fortieth,
individuals face potential criminal exposure during the
course of a grand jury investigation, even before charges
are filed.27
As such, the Court concluded that " counsel
for those who have involvement with such proceedings
should be permitted to access the range of conventional
tools that would otherwise be available at law, so long
as there is no conflict with overarching policies (such
as secrecy where it pertains) discrete to the grand jury
context. " 28
The scope of information that counsel may share under
a joint defense agreement in this context continues to be
the subject of litigation because of the tension between
information-sharing under joint defense agreements
and counsel's secrecy obligations under the Pennsylvania
For the Defense - Vol. 7, Issue 1

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