A “joint defense” (or “common interest”) doctrine agreement can help assure that the attorney-client privilege protects communications between clients (or their lawyers) who share an identical legal interest, as long as the communications are in furtherance of that interest. But can the attorney-client privilege protect the agreement itself?
One recent decision extended the attorney-client privilege that far, and held that attorney-client privilege protected even the common interest agreement itself. McNally Tunneling Corp. v. City of Evanston, No. 00 C 6979, 2001 U.S.Dist. LEXIS 17164 (N.D. Oct. 16, 2001).
Not every court applies the attorney-client privilege so broadly, but lawyers participating in the preparation of joint defense agreements should familiarize themselves with the possible attorney-client privilege that might apply to the agreement itself.