Strategic Use of Joint Defense Agreements in Litigation: Avoiding Disqualification and Privilege Waivers

Drafting Agreements That Minimize Risks and Maximize Benefits

Recording of a 90-minute CLE webinar with Q&A

Conducted on Wednesday, February 15, 2017

Recorded event now available

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Program Materials

This CLE webinar will provide guidance to litigators on the use of joint defense agreements in civil litigation. The panel will discuss the tactical benefits of joint defense agreements, as well as their potential pitfalls, and offer best practices for crafting an agreement that protects the interests of both counsel and clients and safeguards confidential information shared among co-defendants.


Joint defense agreements can be a valuable tool for counsel representing co-defendants facing a variety of types of litigation, including intellectual property, securities, energy/environment, commercial litigation, antitrust, products liability and mass torts. Joint defense agreements allow defendants to reduce costs and coordinate strategies, discovery and filings.

Joint defense agreements are not without risks, however. Sharing work product and confidential information among defendants—who are frequently also competitors—may expose and lead to future litigation among the co-defendants. Counsel considering entering into joint defense agreements must carefully scrutinize the pros and cons and establish preemptive safeguards to protect their client’s interests and confidential information.

Listen as our authoritative panel of experienced litigators examines the critical factors that parties contemplating a joint defense agreement must evaluate, the key provisions of the agreement itself, and strategies for meeting the legal ethics requirements related to joint defense agreements.



  1. Considerations before entering a joint defense agreement
    1. Advantages and disadvantages
    2. Cost
    3. Participants
    4. What information to share
    5. Settlement issues
  2. Joint defense agreement
    1. Key provisions
    2. Provisions concerning disclosure
  3. Ethical considerations
    1. Conflicts of interest and potential disqualification
    2. Protecting privileged information
    3. Ethics opinions addressing joint defense


The panel will review these and other key issues:

  • What critical safeguards must defendants put in place to protect the joint defense privilege?
  • What are the key steps that defendants working jointly can take to avoid or cope with potential conflicts?
  • What preventative clauses should be incorporated into the joint defense agreement to minimize potential risks?


Ronald J. Levine
Ronald J. Levine

Herrick Feinstein

Mr. Levine co-chairs the firm’s Litigation Department. He concentrates his practice on complex corporate...  |  Read More

Patrick F. Linehan
Patrick F. Linehan

Steptoe & Johnson

Mr. Linehan’s diverse practice focuses on representing corporate and individual clients in both civil...  |  Read More

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