Document Type


Publication Date

Fall 1998


How should courts rule on the issue of joint defense agreements and motions for disqualification of another joint defense member's attorney in subsequent litigation? After analyzing prior cases that attempt to resolve the issue, it is clear that no generally accepted analysis of the disqualification issue exists. This article proposes an analytic framework for courts to use when ruling on such motions for disqualification arising in the context of prior joint defense agreements.

Although some courts have found an implied attorney-client relationship among all members and attorneys of the joint defense agreement, this view is flawed and based on a misunderstanding of the relationship. The better approach is to recognize that any duty owed by an attorney to non-clients in a joint defense situation is a duty based on the joint defense itself. Therefore, the proper issue becomes determining whether the party seeking disqualification has proven a joint defense between them and the former client of the attorney targeted by the disqualification motion.

Once the threshold issue of whether a joint defense existed has been determined, the next issue to be resolved is establishing whether the joint defense could form the basis of the disqualification. At this point in the analysis, the joint defense agreement itself should be examined to determine the rights and obligations of the parties, and how confidentiality and subsequent use of the joint defense information is covered in the agreement.

The next issue in the analysis involves the burden of proof and presumption of shared confidences. It is suggested that different approaches be used depending on whether an express joint defense agreement with a confidentiality provision exists. If such express provision does exist, a rebuttable presumption approach should be used. Under this approach, the attorney subject to the disqualification would have the burden of proving that he or she did not receive confidential information. On the other hand, if no such express agreement exists, the burden should be placed on the moving party to show that the target attorney received confidential information.

Once it has been shown that confidential information was disclosed as part of the joint defense or joint defense agreement, the attorney should only be disqualified if the confidential information received is substantially related to the subsequent action. Finally, assuming the motion to disqualify is granted and the non-client moving party seeks to further disqualify the attorney's entire law firm, the burden should be placed on that moving party to establish that confidential information had been disclosed to members of the law firm.

This proposed analysis will provide consistent results in motions by members of joint defense agreements seeking to disqualify another joint defense member's attorney in subsequent litigation. Not only will this approach simplify the court's resolution of the issue, it will also better prepare litigants and attorneys for entering and structuring joint defense agreements in the future.


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