Let’s start here: the government begins a grand jury investigation of an organization, say a political campaign. Certain campaign employees receive grand jury subpoenas to testify in front of the grand jury. Other employees receive “target letters” from the U.S. Attorney’s Office, informing them that they are targets of a grand jury investigation. Based on the potential criminal exposure of each witness and target, the campaign’s counsel decides who needs individual counsel and who can be jointly represented. A team of defense lawyers is assembled. The lawyers meet to discuss the case and enter into a joint defense agreement (JDA).
What is a JDA? What protections does it provide to its members? What Rules of Professional Conduct govern it? How is the JDA affected by the subsequent cooperation of one of its members? And what did Rudy Guiliani mean when he said that he, as President Donald Trump’s lawyer, had a JDA with Paul Manafort and Jerome Corsi? Once again, the Mueller investigation gives us an opportunity to discuss the intersection of white-collar crime and the ethics rules that guide our professional lives.
A JDA is an agreement to pursue a joint defense strategy and share confidential information, intending that information to be protected by the attorney-client privilege. The agreement can be in writing or verbal. The agreement can be withdrawn from or modified. Further, the interests of the parties do not have to be in perfect alignment for it to be effective. Restatement (Third) of the Law Governing Lawyers Section 76, cmt. e. Members of the JDA must share at least a substantially similar legal interest, see Teleglobe Communications v. BCE, (In re Teleglobe Communications), 493 F.3d 345, 365 (3d Cir. 2007).
The protections of a JDA are contiguous with and based on the joint defense privilege. The joint defense privilege is an exception to the rule that disclosure to a third party destroys the privilege, but it does not expand the privilege any further. The communications must still be between attorneys and clients in confidence for the purpose of obtaining legal assistance, see Restatement (Third) of the Law Governing Lawyers Section 68 (2000).
Matter of Bevill, Bresler & Schulman Asset Management, 805 F. 2d 120 (3d Cir. 1986) is a seminal case defining the scope of the joint defense privilege. The Bevill court relied on an earlier U.S. Court of Appeals for the Third Circuit decision, Eisenberg v. Gagnon, 766 F.2d 770 (3d Cir.), cert. denied, 474 U.S. 946 (1985), to hold that “the joint defense privilege protects communications between an individual and an attorney for another when the communications are ‘part of an on-going and joint effort to set up a common defense strategy,’” Bevill, 805 F.2d at 126, quoting Eisenberg, 766 F.2d at 787. The Bevill court listed the elements of a joint defense privilege: “the communications were made in the course of a joint defense effort, the statements were designed to further the effort, and the privilege has not been waived.” As with other attorney-client confidences, the parties must understand that the communications are intended to be confidential.
When the parties are in a JDA, the information they share is confidential, even if one party leaves the agreement. The departing member cannot share any of the confidential information s/he learned during the joint defense meetings. However, if one member advises the other members that they intend to disclose a communication outside of the JDA, any information provided to that member thereafter is not protected by the joint defense privilege, as in United States v. LeCroy, 348 F. Supp. 2d 375, 381 (E.D. Pa. 2004). Further, the client-members should be advised not to discuss the matter with each other, as only the communications with attorneys are privileged.
Attorneys who are in JDAs should be careful to ensure that the lines of representation are not blurred and that each client understands that the JDA does not create new attorney-client relationships. It is up to the attorney to ensure that there is no confusion and that the otherwise applicable rules against communicating with represented parties are not violated, see Rule of Professional Conduct 4.2, (prohibiting contact with a represented party without the consent of the the party’s attorney). If a JDA includes an agreement to share documents, it should provide appropriate limitations on the use and disclosure of those documents. A JDA can also request that if any member receives a demand for documents shared under the agreement, that the other members of the JDA be notified immediately to provide them with an opportunity to assert privilege to those documents. The JDA often will require that the parties not disclose the existence of the agreement without the consent of the other parties. Also, membership in a JDA does not require that all the information a party has must be shared; it only protects the information that is shared.
Let’s return to our political campaign hypothetical. Often, in the course of a JDA between criminal defense attorneys, some parties will find it more advantageous to join a different team and cooperate with the government. The decision to do so is confidential information, covered by Rule of Professional Conduct 1.6, and cannot be disclosed without the consent of the client. There can be a quiet withdrawal from the JDA, when the attorney representing the defector stops returning calls or emails from the other attorneys, or if required by the JDA, returns any documents that were in his possession. Once the party has withdrawn, any further communications between the parties are no longer confidential. The protection only applies to a communication that is in furtherance of an ongoing, joint effort to set up a common strategy.
Moving from the hypothetical to the actual, Giuliani’s assertion that he and Trump and Jerome Corsi are in a JDA is—as a criminal defense strategy—unremarkable, understandable and unobjectionable. (What is remarkable is a president who, sworn to uphold the law and the Constitution, criticizing a Justice Department investigation, especially one that has already resulted in several guilty pleas, forfeitures and jail sentences.) But the more difficult question is —could Kevin Downing, Paul Manafort’s lawyer, be in a JDA with the president—after pleading guilty and ostensibly while cooperating with the Mueller investigation?
Generally, the defense lawyer would not share information about cooperation with another subject of the investigation. The goal of the cooperation is a motion at sentencing to reduce the defendant’s sentence for providing substantial assistance in the investigation or prosecution of another individual. The motion can only be made by the prosecutor, who has complete discretion in whether to make it. The worse things are for the target, the better the cooperation motion. It would be hard to argue at sentencing that helping another subject of the investigation by disclosing the government’s focus and areas of inquiry would meet the standard of substantial assistance.
But what if the government is unhappy with Manafort’s cooperation? On Nov. 15 the president tweeted: “The inner workings of the Mueller investigation are a total mess. They have found no collusion and have gone absolutely nuts. They are screaming and shouting at people, horribly threatening them to come up with the answers they want.” In my experience representing cooperating witnesses, I have seen prosecutors angry when they thought witnesses were not being truthful. Lack of truthfulness affects the value of the cooperation and that is a very serious problem for a client like Manafort, who is facing decades in jail if his plea deal is deemed breached. In that case, Downing’s discussions with Giuliani may be in pursuit of another route to minimize his client’s exposure to dying in prison, which is, of course, his ethical duty. If Downing is acting in his client’s best interests, with his client’s permission, he has violated no ethical rules.
Commentators have gone so far as to opine that Downing, Giuliani, Manafort and the president could be in a conspiracy to obstruct justice, that is to be “corruptly” endeavoring to “impede the due administration of justice.” As with much of white-collar crime analysis, this depends on the interpretation of the word “corruptly” and there are hundreds of decisions interpreting the application of this term. Personally, I disagree with these commentators; even in a year full of revelations about conduct we never could have foreseen, I doubt that Kevin Downing, who had a long and admirable career at the Department of Justice, would cross that line.
This question remains: was the information provided by Downing made during a joint defense effort and designed to further that effort and achieve a common goal? If not, no joint defense privilege applies. In that case, both Downing and Giuliani may be facing grand jury subpoenas of their own. My prediction for the new year is that we will see the limits of the joint defense privilege tested, perhaps at the U.S. Supreme Court, and that both lawyers may find themselves in a place no lawyer ever wants to be: the witness seat.
Ellen C. Brotman, of Brotman Law in Philadelphia, represents individuals before licensing boards, providing effective, caring and efficient assistance. She has served as an assistant federal defender in Philadelphia and practiced in small, medium and large firms with a focus on criminal defense, appellate advocacy, professional responsibility and ethics.