Suppose that, in a joint defense in which each defendant is represented separately, an attorney for one defendant receives confidences from his client’s co-defendant in the course of discussing strategy. If the co-defendant leaves the joint defense and testifies against the first defendant, can the first defendant’s attorney be disqualified from continuing to represent that defendant? In United States v. Henke, 222 F.3d 633 (9th Cir. 2000), based largely on an “implied attorney-client relationship” that ran between one co-defendant and the other defendant’s counsel, the 9th U.S. Circuit Court of Appeals found that disqualification was appropriate.
This result is surprising and, although it is difficult to tell from the facts described in Henke, perhaps wrong in light of the relevant underlying policies. Nonetheless, counsel to parties participating in a joint defense should carefully consider Henke‘s implications and, to the extent feasible, draft their joint defense agreements to protect against the disqualification risks it creates.
