The landgericht rejected the request for withdrawal because the new defence counsel would not be prejudiced by the joint defence communications and, therefore, Desaigoudar and Henke would not be prejudiced because of the continued representation of their lawyer. In court, the defense did not report Gupta, and the jury convicted. The ninth circuit, however, turned around. While most jurisdictions do not require formal written agreement to recognize a common defence privilege, the best method is to document the extent, duration, limits and parties to the common privilege of the defence. 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 an unspoken relationship between counsel and client is generally determined on the basis of the reasonable perspective of the potential client, a well-written common defence agreement can confirm that the parties accept that there was no solicitor-client relationship with co-parties for any purpose. On the other hand, in the United States v. Almeida, 341 F.3d 1318 (11th cir. 2003), the eleventh circle authorized the cross-examination of a defective co-accused with common defence information.
In that case, the government accused Fainberg and Almeida of conspiracy to traffic in narcotics. With separate lawyers, Fainberg and Almeida entered into a joint oral defence agreement and shared «countless amounts of customer and work products information» at more than 100 meetings. However, shortly before the trial, Fainberg agreed to plead guilty and testify against Almeida. «As a general rule, no written agreement is required to invoke a common defence privilege.»  And while «privileges must be interpreted in a restrictive manner and extensions carefully expanded,» the courts have found that a common oral defence treaty can be valid.  I also confirm that I am entitled to sign this agreement on behalf of another organization with which I am employed and who will perform any work related to this commitment, retaining not only myself, but all other staff members of that organization, and that I will take appropriate steps to ensure that this other staff member complies with the attached agreement. 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. When reviewing the validity of a common defence agreement, courts generally focus on whether the interests of the parties are actually coordinated.
For example, in a dispute with the Post-9/11 World Trade Center, the District Court for the Southern New York Region refused to recognize the common interest privilege invoked by the WTC leaseholders and the insurance broker`s staff who had obtained coverage for the WTC. However, the Eleventh circuit was overturned and found that Fainberg waived his legal and client privilege when he decided to cooperate with the government. The Circuit Court stated that «if each party to a common defence agreement is represented by its own counsel and a co-accused`s communications are made to lawyers of other co-accused, these communications do not enjoy solicitor-client privilege if the co-accused decides to testify on behalf of the government in exchange for a reduced sentence.» United States against Almeida, 341 F.3d around 1326. With this exception, all of the alleged conflicts of interest that prevented Fainberg`s cross-examination have been eliminated. In litigation, co-accused often have a common interest in defeating the complainant`s claims.