In order to avoid possible disqualification, the parties and counsel should agree that each client will be represented only by his or her own counsel and that no party will have the right to seek disqualification from other counsel in the joint defence group. The inclusion of appropriate consents in a common interest agreement should significantly limit this risk. See In re Shared Memory Graphics LLC, 659 F.3d 1336, 1339 (Fed. Cir. 2011). Bledsoe J. rejected the argument that a JDA was protected by solicitor-client privilege. It was based on an appeal decision from New York — Fewer v. GFI Group, Inc., 78 A.D.3d 412 (N.Y. App. 2010) for this conclusion. Op.
Concerned about a proper trial, the safety of the accused and the constitutional rights of the accused, the court ordered the defence counsel to submit his JDA proposal to the court for cameraman verification. The Tribunal found that, because of its supervisory powers, it has an essential power to oversee its own affairs to ensure that justice is served. In support of this decision, the Tribunal found that there were no rules requiring the JDA parties to agree in writing; in fact, many JDAs are orally. However, participants who insist on oral agreements should welcome the risk involved. That is, the court may decide on a CCM, no. Companies involved in a sale or merger or trying to attract investors may wish to exchange legal advice from their advisors on the strength of their intellectual property. Lawyers should be cautious in this area, as Federal Court decisions are inconsistent as to the applicability of common defence privilege. (The issue arises primarily in the Federal Court of Justice, where patent litigation takes place.) If the protection is critical before the client shares inside information with a buyer or investor, a lawyer should research the relevant jurisdiction and inform the client of the risks associated with the waiver. The following cases illustrate the differences in views. The court found that there was no JDA or privilege of common interest for the protection of information. The apparent conflict of interest between Napout and CONMEBOL was significant to the Tribunal`s decision. As the court explained, « to reconcile Napout`s interest as the objective of the government investigation with CONMEBOL`s opposing interest as the alleged victim of the crimes alleged in the indictment. »  Without this, the government was free to use the information against Napout.
Sometimes the separate parties want their lawyers to work together. For example, co-accused can pool resources for effectiveness or ensure a consistent approach to their defence. To facilitate this division, courts outside California originally developed the concept of a common defence privilege. The concept has been expanded to include non-criminal defendants, complainants and even non-parties at trial. See OXY Res. Cal. LLC v. Superior Court, 115 Cal. App. 4th 874, 889 (2004) (« OXY Resources ») (with the extension of the common privilege of defence). Lawyers may fear that the Privy in a non-client`s preferred communication may create obligations for the non-client (including obligations that might conflict with the obligations that the lawyer owes to his own client) or create an implicit solicitor-client relationship with members of a common advocacy group.