Criminal Defense Lawyers

Joint Defense Agreement in Federal Criminal Case

Here’s the uncomfortable truth about joint defense agreements in federal criminal cases. The same agreement designed to protect you and coordinate your defense with co-defendants can become the trap that destroys your case when one of those co-defendants decides to cooperate with the government. And in federal court, the question isn’t WHETHER a co-defendant will cooperate. It’s WHEN. According to the US Sentencing Commission, 97% of federal criminal cases end in guilty plea. Around 11% of those cases see downward departures for substantial cooperation. Your joint defense partners are temporary allies at best.

Welcome to Spodek Law Group. Our goal is to explain exactly how joint defense agreements work in federal criminal cases – the protection they provide, the limitations they have, and the traps that catch defendants who don’t understand how these agreements actually function when the pressure gets real. Understanding JDAs helps you decide whether to enter one, what terms to negotiate, and how to protect yourself when the inevitable happens.

The joint defense privilege allows parties with common legal interests to share information and coordinate strategy without waiving attorney-client privilege. In theory, this is powerful – multiple defendants pooling resources, sharing discovery analysis, and presenting a unified front against the government. In practice, every piece of information you share under a JDA is information that a cooperating co-defendant might later use against you.

Why JDAs Exist – The Theory Behind Shared Defense

The idea behind joint defense agreements makes sense on paper. Multiple defendants facing related charges share a common interest in defeating the government’s case. By pooling resources, they can conduct more thorough investigations, share the cost of expert witnesses, coordinate legal arguments, and avoid contradicting each other in ways that help prosecutors.

Heres the irony that trips up most defendants. A JDA cannot CREATE privilege. It can only EXTEND existing attorney-client privilege to communications between parties who share a common legal interest. If a communication wouldnt be privileged in the first place, putting it under a JDA dosent make it privileged.

This distinction matters becuase people think JDAs are magic shields. There not. The JDA only protects communications that are already privileged under normal attorney-client rules. Conversations between defendants without attorneys present? Generally not protected – JDA or no JDA. Business discussions that arent about obtaining legal advice? Not protected. The JDA just lets you share protected information with co-defendants without losing the protection.

A JDA cannot create new privilege – it only extends existing attorney-client privilege to communications shared with co-defendants.

Todd Spodek has seen defendants make this mistake repeatedly. They think the JDA protects everything they say to co-defendants. It dosent. It protects privileged communications that are shared for a common legal purpose. Thats a narrower category then most people realize.

The Three Requirements That Must Be Met

Federal courts generally require three things before recognizing joint defense privilege. First, the communication has to be made in the course of a joint defense effort. Second, the communication has to be designed to further that effort. Third, the privilege cant be waived.

Heres the system revelation that catches defendants off guard. Courts focus intensely on wheather the parties’ interests are truly aligned. Similar interests arent the same as identical interests. If one defendant is a target while another is merely a witness, there interests might diverge. If one defendant could benefit from blaming another, the court might find no genuine common interest exists.

And theres another hidden trap. The common interest has to be a LEGAL interest, not a business or commercial interest. Courts have rejected JDA claims were the parties’ shared interest was primarily financial rather then legal. Just becuase two defendants both want to win a case dosent mean they have the common interest required for joint defense privilege.

At Spodek Law Group, we evaluate potential JDA relationships carefully before advising clients to enter them. Sometimes the interests look aligned at the beginning but diverge as the case progresses. Sometimes one party has exposure that creates an incentive to cooperate that other parties dont share. These dynamics matter when deciding wheather a JDA is appropriate.

The Cooperating Co-Defendant Problem

OK so heres the reality that federal defense attorneys know but dont always explain clearly. In federal criminal cases, someone almost always cooperates. The 97% guilty plea rate tells you that. The 11% cooperation departure rate tells you prosecutors are actively recruiting cooperators. The question isnt if your co-defendant will flip. Its when.

The consequence cascade is predictable. You enter JDA → you share confidential defense strategy → co-defendant gets better cooperation offer → co-defendant accepts → your strategy is now exposed → you cant effectively challenge the cooperator’s credibility → conviction becomes more likely.

Experienced defense attorneys have learned: “No matter how close the defendants are, no matter what their attorneys say, and no matter how strong a joint defense agreement is in place, defense counsel should be prepared for co-defendants and their counsel to sell out to the government.”

Thats a quote from experienced federal practitioners. Not pessimism – realism. Every piece of information you share under a JDA is information that could potentially be used against you if that relationship sours.

United States v. Henke – When Protection Becomes A Trap

Heres the named example that every defendant considering a JDA should understand. In United States v. Henke, Silicon Valley executives charged with conspiracy and financial fraud initially worked together under a joint defense agreement. They shared information, coordinated strategy, and presented a unified defense.

Then one executive decided to cooperate with the government. He agreed to testify against his co-conspirators in exchange for a lesser charge. When he took the stand, his trial testimony contradicted statements hed made while participating in the JDA.

In Henke, defense counsel refused to cross-examine the cooperator about JDA contradictions – and the client was convicted because of it.

Heres the inversion that should terrify you. Defense counsel refused to explore those contradictions through cross-examination becuase they were afraid of violating the JDA. The agreement that was supposed to protect the defendant prevented his lawyer from effectively challenging the cooperating witness. His client was convicted.

The conviction was eventually set aside on appeal becuase the conflict of interest impaired the defendants constitutional right to cross-examine a witness. But think about what happened. The JDA – designed to protect the defendant – created a conflict that prevented effective defense and led to conviction.

The Ninth Circuit found that “a joint defense agreement establishes an implied attorney-client relationship with the co-defendant” and that “this privilege can also create a disqualifying conflict where information gained in confidence by an attorney becomes an issue.”

The Hallway Conversation Trap

Heres another named example that shows how narrow JDA protection actually is. In United States v. Krug, co-defendants entered into a written JDA. Everything by the book – proper documentation, clear terms, multiple parties. After executing the agreement, co-defendants engaged in a hallway discussion about topics related to there case.

The court ruled that those hallway discussions were NOT protected by the JDA and could be used as evidence against them at trial.

Why? Becuase the conversations happened outside the presence of any lawyer. The lawyers were standing nearby – literally in the hallway – but werent participating in the conversation. The court held that the communications didnt serve the interests that justify the privilege becuase they werent made for the purpose of obtaining legal advice.

Think about what this means. You can have a written JDA. You can be standing feet away from your attorneys. But if you have a conversation with a co-defendant thats not directly involving your lawyers in the communication, it might not be protected.

This is why Todd tells clients that having a JDA dosent mean you can talk freely with co-defendants. Every conversation has to be structured properly to maintain privilege. Casual discussions, even about case-related topics, can fall outside the protection.

What JDAs Cannot Do

Heres the system revelation about JDA limitations that surprises most defendants. Joint defense agreements cannot extend greater protections then the legal privileges they rest on. There contracts that invoke existing privileges, not contracts that create new rights.

What this means practically:

• A JDA cannot protect communications that arent already privileged. If it wasnt protected before the JDA, it isnt protected after.
• A JDA cannot prevent co-defendants from testifying about there own observations and conduct. Your co-defendant saw something happen? They can testify about it regardless of the JDA.
• A JDA cannot stop the government from using evidence it obtains independently. If prosecutors find information through investigation rather then from JDA materials, the JDA dosent shield it.

And heres the uncomfortable truth. A JDA may not even protect the agreement itself from disclosure. Some courts have compelled production of the JDA document, finding that the existence and terms of the agreement arent themselves privileged. The government might know exactly who your coordinating with and what the coordination terms are.

The Yates Memo Problem

Heres a hidden connection that undermines JDAs in white collar cases involving corporations. The Yates Memo from the Department of Justice requires that companies must disclose wrongdoing by individual employees to receive cooperation credit.

Think about what this means for JDAs between a company and its employees. The company is facing pressure to cooperate. Cooperation requires disclosure about individual employees. The company may have received information about those employees through the JDA. Now the company faces a choice: protect JDA confidentiality or get cooperation credit.

Guess which one most companies choose when there facing criminal liability?

The Yates Memo essentially requires companies to break the spirit of JDAs if they want meaningful cooperation credit. This undermines the entire premise of joint defense between corporations and there employees. The interests that seemed aligned at the beginning diverge dramatically when cooperation becomes attractive.

At Spodek Law Group, we advise individual clients to be extremely cautious about JDAs with corporate employers facing federal investigation. The corporation’s interests and the employee’s interests often conflict in ways that only become apparent when cooperation discussions begin.

The Missing Waiver Provision Mistake

Heres the consequence cascade that defense attorneys describe as a “fatal mistake.” In Henke, the JDA apparently didnt contain a waiver provision addressing what happens when someone cooperates and testifies. When the cooperating defendant took the stand, defense counsel faced a disqualifying conflict – they couldnt effectively cross-examine without potentially violating JDA confidentiality.

The solution should have been built into the agreement from the start. Proper JDAs include provisions that address:

• What happens when a member decides to cooperate with the government
• What information can be used for cross-examination of a cooperating former member
• Wheather remaining members waive the right to seek disqualification of counsel
• How conflicts between continuing members and cooperating former members will be resolved

Without these provisions, you end up like the defendant in Henke – conviction based on testimony you couldnt effectively challenge becuase your own agreement prevented you from doing so.

Oral Agreements And The Proof Problem

Theres no legal requirement that JDAs be in writing. Many joint defense agreements are purely oral. Courts have recognized that verbal agreements can establish joint defense privilege.

But heres the uncomfortable truth about oral JDAs. If theres ever a dispute about wheather a JDA existed, you have no proof. The court has to decide based on testimony about what was discussed and agreed to. And guess what – the person who might dispute that an agreement existed is often the person who decided to cooperate and wants to minimize the protections available to you.

The consequence cascade is ugly. Oral JDA established → information shared in reliance on JDA → co-defendant cooperates → co-defendant claims no JDA existed or disputes its terms → court finds insufficient evidence of JDA → privilege waived → communications disclosed → used against you at trial.

Written agreements provide strong evidence that the parties operated jointly and communicated in the course of a common legal effort. Without that documentation, your claiming privilege based on conversations that the other party might characterize very differently.

An oral JDA leaves you with no proof if a co-defendant later disputes that any agreement existed – and cooperators have every incentive to dispute it.

Warning Signs Your JDA Is About To Break

Heres the hidden connection that experienced defense attorneys recognize. Theres usually warning signs before a JDA member decides to cooperate. If you know what to look for, you can protect yourself before the damage is done.

First, watch for changes in how co-defendants counsel interacts with the prosecution. Defense attorneys in multi-defendant cases normally have an adversarial relationship with prosecutors. If that dynamic suddenly changes for one defendant – if there counsel becomes weirdly cooperative or stops fighting motions they previously opposed – theres probably a reason.

Second, pay attention to scheduling changes. If a co-defendant suddenly wants to delay there case, or suddenly wants to accelerate it in ways that dont match there previous positions, that can signal cooperation discussions have begun.

Third, notice communication patterns. If a co-defendant who was previously active in JDA discussions goes quiet, or if there counsel stops sharing information they previously shared freely, something has changed. Cooperators often distance themselves before formally flipping.

Fourth, watch the government’s charging decisions. If prosecutors suddenly drop charges against one defendant while maintaining them against others, or if they reduce charges in ways that seem inconsistent with there previous positions, cooperation is the likely explanation.

At Spodek Law Group, weve seen all these warning signs play out. By the time most defendants realize a co-defendant is cooperating, the damage is already done. Information has been shared. Strategies have been revealed. The cooperator knows everything they need to know to hurt you.

The lesson is to monitor the JDA relationship constantly, not just at the beginning. And when you see warning signs, adjust your information sharing accordingly.

The Information Asymmetry Problem

Heres the paradox that makes JDAs inherently risky. The more participants in a joint defense agreement, the more information gets shared. But the more information gets shared, the more vulnerable every participant becomes if anyone defects.

Think about the math. A JDA with two defendants means one potential cooperator who knows your strategy. A JDA with ten defendants means nine potential cooperators who all know your strategy. Every additional participant is an additional risk point.

And heres the inversion that most defendants dont appreciate. Larger JDAs often seem more powerful becuase they pool more resources. But there also more fragile becuase they have more failure points. One defection in a ten-person JDA can expose nine defendants to information they shared thinking they were protected.

The cooperator dosent just know what you told them directly. They know what everyone in the JDA told them. They know the combined defense strategy. They know what witnesses the defense planned to call. They know what documents the defense considered important. They know everything shared in JDA meetings and communications.

This is why some experienced defense attorneys prefer smaller, more carefully selected JDAs over larger ones. Or they prefer separate JDAs for different groups of defendants rather then one massive agreement. Limiting information exposure limits damage if someone flips.

The 40% Reality – When Cooperation Fails

Heres the specific number that should inform how you think about JDA risk. According to available data, approximately 40% of cooperators dont receive the benefits they expected when they signed there cooperation agreements. Thats almost half of everyone who decides to cooperate ending up disappointed with the outcome.

What does this mean for JDA participants? It means the co-defendant who flips on you might not even get what they were hoping for. They destroyed there relationship with you, exposed your defense strategy, and potentially devastated your case – and they didnt even get the deal they wanted.

The prosecutors incentive structure creates this dynamic. Prosecutors want cooperation, but they dont have to deliver everything cooperators expect. They can promise consideration, make recommendations, and still end up with sentences that disappoint cooperators.

This matters for JDA strategy becuase it shows that cooperation isnt the golden ticket some defendants think it is. But by the time a co-defendant realizes there cooperation deal isnt what they expected, theyve already given up JDA materials and testified against you. The damage is done regardless of wheather they got what they wanted.

What Your JDA Should Actually Include

Understanding the risks, heres what a properly drafted JDA should address.

First, define the common legal interest clearly. What specific legal matter brings the parties together? What charges or potential charges create the common interest? The more specific, the better.

Second, identify all parties and there counsel. Who is covered by the agreement? What happens when new parties want to join or existing parties want to leave?

Third, establish information-sharing protocols. What information will be shared? How will it be transmitted? Who can access it? What security measures will be used?

Fourth, include withdrawal and cooperation provisions. What happens when someone decides to cooperate? What notice is required? What information can be used by remaining members against the cooperating former member?

Fifth, address conflict waiver. Do members waive the right to seek disqualification of counsel based on JDA participation? Do they waive the right to object to cross-examination using JDA materials?

Sixth, specify duration and termination. When does the agreement end? What survives termination? How are disputes about the agreement resolved?

Call Spodek Law Group at 212-300-5196. The consultation is free. Joint defense agreements can be valuable tools in multi-defendant federal cases, but they come with significant risks that most defendants dont understand until its to late. Understanding how JDAs actually work – and how they fail – helps you make informed decisions about wheather to enter one and what protections to negotiate. The government has to prove every element beyond a reasonable doubt. Make sure your JDA isnt helping them do it.