The Shelby case contained a written joint defence agreement, but the Court of Appeal did not contain language requiring a written agreement. The Court`s judgment provided that there were two essential aspects of the agreement: a common interest and an agreement to keep the information confidential. It is also a good practice to ensure that your client is aware of the restrictions imposed by the joint defence agreement and orders him not to discuss the case with the other parties to the joint defence agreement without the presence of a lawyer. As for the timing, Selby refused to decide whether the common defence privilege went beyond the actual litigation and protected communications that were shared before, under threat of litigation, or at the end of the litigation.11 And while client consent is ethically necessary, as always, before a lawyer can disclose his or her information, Selby refused to decide: If a confidentiality agreement is necessary for their attitude to apply.12 Although Selby is a case of first impression, his attitude is not new. Rather, Selby`s value lies in the clarity it offers as to the scope of privilege – what is the common privilege of the defence and what it is not. Titles recognizing the common privilege of the defence may encourage practitioners to interpret and apply the privilege more broadly than it actually offers its protection. But Selby`s 130-page opinion reveals exactly 1) what communication and 2) whose communication is protected by his attitude. 5 Cf. Grochocinski v. Mayer Brown Rowe &maw LLP, 251 F.R.D.
316, 326 (N.D. ill. 2008) (states that the federal and national law on common defence privilege « appear to be equal »). The First District Appellate Court granted the board protection for joint defense agreements and said, « . In one case, activists who agree to disclose information in accordance with their common interest in defeating their opponent do not waive either the privilege of lawyer or the privilege of the work product. » From whom is the communication protected? Nor does the common privilege of the defence protect all communication with the co-accused at all times. This is because the common privilege of the defence is not at all a basis independent of « privilege », but an exception to the waiver of privileges.9 The underlying privilege is solicitor`s privilege or the doctrine of the work product. The « privilege » of common defence offers an exception to the general rule of renunciation, that communication with third parties (co-accused) destroys these privileges. Nomenclature is more than just a formality; its practical effect is to limit the scope of the common privilege of the defence. For example, two co-accused may clearly be considered « common accused » with a « common interest », but their disclosure is only privileged if it is in the presence of a lawyer. .