U.S. v. Stepney, No. CR 01-0344 MHP.

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
• Writing for the Court: Patel
• Citation: 246 F.Supp.2d 1069
• Docket Number: No. CR 01-0344 MHP.
• Decision Date: 11 February 2003
• Parties: UNITED STATES of America, Plaintiff, v. Douglas STEPNEY, et al., Defendants.

246 F.Supp.2d 1069 UNITED STATES of America, Plaintiff,
v.
Douglas STEPNEY, et al., Defendants. No. CR 01-0344 MHP. United States District Court, N.D. California. February 11, 2003.

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George L. Bevan, Jr., U.S. Attorney's Office, San Francisco, CA, for Plaintiff.

Steven Kalar, Daniel Blank, Federal Public Defender's Office, San Francisco, CA, Joseph D. O'Sullivan, Joseph D. O'Sullivan Law Offices, San Francisco, CA, for Defendants.

MEMORANDUM AND ORDER re Joint Defense Agreements

PATEL, Chief Judge.

Defendants have been charged with conspiracy and numerous violations of federal drug and weapons laws. In a previous order, this court required that all joint defense agreements be put into writing and submitted to the court. Counsel for

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defendants submitted proposed joint defense agreements for in camera review. Having reviewed the proposed joint defense agreements and having heard arguments from defendants on this matter, and for the reasons stated below, the court issues the following order.

BACKGROUND

Defendants are charged with participation in the criminal enterprises of a street gang in the Hunter's Point area of San Francisco. In a series of three indictments, the government has charged a total of nearly thirty defendants with over seventy substantive counts relating to the operation of the gang over a period of several years. The number of defendants and the separate crimes charged render this case extraordinarily factually complex. Defense counsel report that they have already received discovery of over 20,000 pages of police reports, FBI memos, and other law enforcement materials.

In an effort to prepare coherent defenses efficiently, various defense counsel have sought to enter into joint defense agreements that would allow defendants to share factual investigations and legal work product. Out of concern for the Sixth Amendment rights of the defendants and the integrity of the proceedings, at the parties' initial appearance on October 15, 2001, the court ordered that any joint defense agreements be committed to writing and provided to the court for in camera review. Oct. 15, 2001 Reporter's Transcript at 11:11-19. No joint defense agreements were ever filed with the court pursuant to this order.

More than a year after the court's initial order, the attorney for one defendant moved to withdraw his representation on the grounds that he had entered into a joint defense agreement with another defendant who he had since come to believe was cooperating with the prosecution. Although the attorney seeking to withdraw did not believe that he had obtained confidential information from the cooperating defendant, he did believe that the joint defense agreement had created an implied attorney-client relationship that included a duty of loyalty. The attorney maintained that this duty of loyalty would prevent him from cross-examining the cooperating defendant, should he testify at trial.

The court denied the motion to withdraw after conducting a colloquy in which the cooperating defendant waived any attorney-client privilege with respect to information received by the moving attorney. The court also ruled that joint defense agreements do not create in one attorney a duty of loyalty toward the defendant with whom he collaborates. In an order dated November 22, 2002, the court set forth requirements that future joint defense agreements: (1) be in writing; (2) contain a full description of the extent of the privilege shared; (3) contain workable withdrawal provisions; and (4) be signed not only by the attorneys but also by the clients who hold the privileges at issue. Order re Motion To Withdraw, Nov. 22, 2002, at 2.

At the following status conference, the court ordered that a proposed joint defense agreement be submitted to the court for in camera review. Defense counsel submitted two proposed agreements, which the court discussed with defense attorneys at an in camera, status conference on January 13, 2003.¹ One proposed agreement, entitled "Joint Defense Agreement Extending Attorney

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Client Privileges" (hereinafter "Joint Defense Agreement"), discusses the duties of confidentiality and loyalty each attorney who signs the agreement will owe to each client who signs. The other, entitled "Joint Defense Agreement re Work Product" (hereinafter "Work Product Agreement"), addresses the confidential sharing of legal research and discovery analysis among the lawyers for the various defendants.

DISCUSSION

I. The Joint Defense Privilege Generally

The joint defense privilege is commonly described as an extension of the attorney-client privilege. See, e.g., In re Santa. Fe Intern. Corp., 272 F.3d 705, 719 (5th Cir. 2001); United States v. Evans, 113 F.3d 1457, 1467 (7th Cir.1997); United States v. Aramony, 88 F.3d 1369, 1392 (4th Cir. 1996), cert. denied, 520 U.S. 1239, 117 S.Ct. 1842, 137 L.Ed.2d 1046 (1997). United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir.1989); Waller v. Financial Corp. of Am., 828 F.2d 579, 583 n. 7 (9th Cir.1987). Scholarly commentators have uniformly argued that the joint defense privilege differs sufficiently from the attorney-client privilege in both purpose and scope that the two should be viewed as entirely separate doctrines. See, e.g., Deborah Stavile Bartel, Reconceptualizing the Joint Defense Doctrine, 65 Fordham L.Rev. 871 (1996); Craig S. Lerner, Conspirators' Privilege and Innocents' Refuge: A New Approach to Joint Defense Agreements, 77 Notre Dame L.Rev. 1449 (2002); Susan K. Rushing, Note: Separating the Joint-Defense Doctrine From the Attorney-Client Privilege, 68 Tex. L.Rev. 1273 (1990). To inform the analysis of the proposed joint defense agreements, the court must first examine in detail the nature of the joint defense privilege.

1. Protections for Attorney-Client Communications

"The attorney-client privilege is an evidentiary rule designed to prevent the forced disclosure in a judicial proceeding of certain confidential communications between a client and a lawyer." United States v. Rogers, 751 F.2d 1074, 1077 (9th Cir.1985), quoted in Wharton v. Calderon, 127 F.3d 1201, 1205 (9th Cir.1997). The purpose of the privilege is to encourage "full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice." Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981); see also Hunt v. Blackburn, 128 U.S. 464, 470, 9 S.Ct. 125, 32 L.Ed. 488 (1888) (grounding the privilege "in the interest and administration of justice, of the aid of persons having knowledge of the law and skilled in its practice, which assistance can only be safely and readily availed of when free from the consequences or the apprehension of disclosure").

The attorney-client privilege limits only the power of a court to compel disclosure of attorney-client communications or otherwise admit the communications themselves into evidence. Outside the courtroom, the privilege does not provide grounds for sanctioning an attorney's voluntary disclosure of confidential communications to third parties. Wharton, 127 F.3d at 1205-06 (attorney-client privilege could not provide grounds to bar respondents from informally communicating with petitioner's former attorneys). This is not to say that attorneys may freely reveal their clients' confidences should they so desire. Mechanisms other than the attorney-client privilege protect against voluntary disclosure of confidential communications by counsel. The ethical

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rules governing attorneys require that all information pertaining to a client's case be kept confidential. Cal. Bus. & Prof.Code § 6068(e) (setting forth attorney's duty "[t]o maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client"); Model Rules of Prof'l Conduct, R. 1.6 (3d ed.1999). The comment to Model Rule of 1.6 discusses the relationship between the attorney-client privilege and the ethical duty of confidentiality:

The principle of confidentiality is given effect in two related bodies of law, the attorney-client privilege (which includes the work product doctrine) in the law of evidence and the rule of confidentiality established in professional ethics. The attorney-client privilege applies in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.

Id., R. 1.6 cmt. The ethical duty of confidentiality may be enforced by more than just sanctions against an offending attorney. In a criminal case, where an attorney violates this ethical duty by revealing a client's confidences to the government, a court may suppress the resulting evidence. Rogers, 751 F.2d at 1078-79. Prosecutors may also be subject to sanctions where they have induced an attorney to violate her duty of confidentiality. Model Rules of Prof'l Conduct, R. 8.4(a).

In criminal cases, the Constitution also protects confidential attorney-client communications from the eyes and ears of the government. An intrusion by the government into an attorney-client relationship in order to obtain confidential information may be deemed a violation of a defendant's Sixth Amendment right to effective assistance of counsel or Fifth Amendment due process rights. See, e.g., United States v. Haynes, 216 F.3d 789, 796 (9th Cir.2000), cert. denied, 531 U.S. 1078, 121 S.Ct. 776, 148 L.Ed.2d 674 (2001) (deliberate intrusion into attorney-client relationship may violate Fifth Amendment); ...