## Facts

- The United States prosecuted nearly thirty defendants in a multi-defendant federal case alleging drug and weapons offenses connected to a San Francisco street gang.
- Discovery was extensive, and defense counsel sought to coordinate through joint defense agreements (JDAs) to share information and work product.
- At an early appearance, the district court ordered that any JDA be reduced to writing and submitted for in camera review to protect defendants’ Sixth Amendment rights and the integrity of proceedings.
- No written JDAs were submitted until after several defendants pleaded guilty and began cooperating with the government.
- A defense attorney sought to withdraw, claiming an informal JDA with a now-cooperating defendant created a duty of loyalty that conflicted with cross-examination obligations.
- The court denied withdrawal and directed submission of a proposed written JDA.
- The proposed JDA stated that each participating attorney owed a duty of loyalty to each participating defendant and that certain obligations would survive withdrawal.
- The court addressed, prospectively, what forms and terms of JDAs would be permitted in the case.

## Issues

1. Whether the court may require JDAs to be written, submitted for in camera review, and structured to reduce conflicts that could impair Sixth Amendment rights.
2. Whether the joint defense/common-interest privilege creates a general duty of loyalty by each participating attorney to all defendants in the JDA.
3. Whether a JDA must include a limited waiver permitting a cooperating defendant’s testimony and effective cross-examination about JDA communications, to prevent unfair use of privilege.

## Decision

- The court held it could require JDAs to be in writing and submitted for in camera review under its supervisory authority to protect conflict-free representation and trial integrity.
- The court rejected the view that the joint defense/common-interest privilege creates a general duty of loyalty owed by each attorney to every JDA defendant.
- The court required that any JDA include a limited waiver triggered by a defendant’s decision to testify, allowing testimony and cross-examination about JDA communications as necessary for fairness.
- The court rejected the proposed JDA as drafted and ordered that any JDA in the prosecution conform to these constraints.

## Legal Principles

- The joint defense/common-interest doctrine is an evidentiary extension of attorney-client privilege and work-product protection for confidential communications made in furtherance of a shared legal strategy.
- The doctrine does not, by itself, create substantive attorney ethical duties beyond the attorney’s duties to the attorney’s own client; it does not convert participating counsel into counsel for all JDA defendants.
- A JDA provision imposing a generalized duty of loyalty among separately represented defendants risks unavoidable conflicts (including impaired cross-examination) and is improper in a multi-defendant criminal case.
- A court may use supervisory authority in complex criminal proceedings to require JDAs to be written, reviewed in camera, and drafted to reduce foreseeable conflicts and later Sixth Amendment litigation.
- To prevent privilege from restricting truthful testimony or limiting cross-examination, a court may require a limited waiver allowing a testifying cooperator to disclose, and allowing adversaries to examine, communications made under the JDA to the extent necessary for fair examination.

## Conclusion

The court regulated JDAs in a complex multi-defendant prosecution by requiring written, in camera-submitted agreements, rejecting provisions that purported to create cross-defendant attorney loyalty duties, and mandating a limited waiver to ensure that cooperation and cross-examination would not be unfairly constrained by joint defense privilege claims.


United States v. Stepney, 246 F. Supp. 2d 1069 (N.D. Cal. 2003)