Circuit Denies Protection to Hallway Conversation Between Co-Defendants, Highlighting Limits of JDAs
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.