However, even with such a guide, it can be difficult to determine what is in the interest of the parties and, more importantly, whether there is a common interest. In order to ensure that there is no error, the cooperating parties often include or wait for the JDAs. If left uncorrected, these differences can jeopardize all parties to the common defence agreement. An important provision of any common defence agreement is therefore to deal precisely with what happens when a party decides to denounce or abandon it. Since the existence of common interests is not as obvious as in the context of the trial, it is particularly important that clients and lawyers document the origin, duration, foundation, limitations and end of a common interest agreement. Creation is important to enable the parties to determine precisely when the common interest began in the event of subsequent disputes. There will be cases where a co-accused will attempt to monopolize the direction of the legal strategy within the framework of a JDA to use himself. Collaborative defence counsel must be tired in these situations, as a court may find that there is no JDA in such circumstances. Other jurisdictions have interpreted a common interest more, but courts still find that the interests of the joint parties are not sufficiently ”common” or ”common” to recognize a common defence agreement.
The best practice is to articulate common legal interests, including positions, defences and potential liabilities. As a starting point, many courts distinguish the common law from the common interest and the common interest and determine that the former is narrow and the result of actual litigation, while the privilege of the common interest is broader and there is no need for litigation. Many other courts use almost interchangeable terms, with no reasonable distinction between the two. A common defence agreement, which simply says that the parties are co-accused and want to exchange information, may not be enough to protect the privilege. Some courts are skeptical of efforts to hide behind a privilege that has been quashed and are reluctant to extend the privilege to third parties if there is no evidence that such an extension is warranted. To obtain the privilege of communicating with others, a party must generally show three things: that the communication ended in a common defence, that the communications were made to support the objectives of that common defence, and that the privilege was not nullified elsewhere (i.e. that the common defenders do not share communication beyond their small group). From a strictly legal point of view, the common privilege of defence is a bad name, for it is not in fact a positive privilege; Rather, it is an exception to the exemption granted to the exemption.
In general, the disclosure of privileged and confidential information to third parties constitutes a waiver of privilege. However, those who are protected by a common defence agreement can avoid relinquishing and retaining the privilege, regardless of the disclosure of confidential information to third parties.