For the Defense - Vol. 7, Issue 1 - 16

Prior to the supervising judge's inquiry into a joint
defense agreement, counsel must carefully define their
common legal interest. Depending on the circumstances
of the case, memorializing a joint defense agreement in
a written document may be prudent. While Pennsylvania
courts recognize oral joint defense agreements,43
written
agreements may be favorable in circumstances in which the
common legal interest between co-parties is unclear. 44
If,
for example, an oral joint defense agreement is challenged,
the court is left to determine what, if any, common legal
interest the parties share without the benefit of a written
document.45
Leaving this determination to the discretion
of the court may be an acceptable risk in situations in which
the common legal interest is clear, such as the common
interests of co-defendants charged in the same criminal
prosecutions where " the contours of a particular charging
instrument " naturally define the common legal interest.46
However, in the grand jury investigation context, clients
are not yet charged, and therefore defining the shared
legal interest in writing may provide crucial evidence of the
common legal interest.47
Nevertheless, it is paramount to keep in mind that
the contents of written joint defense agreements are
generally not privileged48
and may disclose defense
strategies, counsel's opinion on their clients' criminal
exposure, and the identities of those with whom the
client is aligned. 49
Accordingly, counsel should proceed
with caution and avoid revealing information in a written
agreement that could be used against their client in the
future.
Conclusion
In the context of a Pennsylvania investigating grand
jury, practitioners must carefully articulate a common legal
interest when entering into a joint defense agreement
and consider whether memorializing the agreement in a
written document is prudent under the circumstances.
Thus, if the shared legal interest
among grand jury witnesses is not apparent, a written
joint defense agreement may be helpful in convincing
the supervising grand jury judge that the parties share
a bona fide legal interest, and have therefore entered
into an enforceable joint defense agreement. A carefully
articulated shared legal interest will demonstrate that
the parties are not using the joint defense doctrine as an
excuse to circumvent their grand jury secrecy obligations.
As the Pennsylvania Supreme Court observed in its
opinion in In re Fortieth, the Court's curtailment of the
nondisclosure language in the entry-of-appearance form
" ameliorates - but does not eliminate " the concern
regarding counsel's ability to share information under
joint defense agreements. The former nondisclosure
language was far too broad and would have restricted
counsel's ability to share anything " concerning " a grand
jury investigation. While the amended nondisclosure
language is more tailored and only restricts disclosure of
" matters occurring before the grand jury " , the Court has
16 For The Defense l Vol. 7, Issue 1
For the Defense - Vol. 7, Issue 1

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