Limiting the Scope of Joint-Defense Agreements
In United States v. Krug, the U.S. Court of
Appeals for the Second Circuit made it a bit easier to pierce the
attorney-client privilege when multiple defendants have a
joint-defense agreement (JDA). In the case, co-defendants Raymond
Krug, Gregory Kwiatkowski and Joseph Wendel, officers of the
Buffalo Police Department, were charged with offenses based on the
alleged use of excessive force during the arrest of four
individuals. The three co-defendants entered into a JDA in which
their defense counsel "participated in meetings together,
transmitted emails, and shared legal memoranda and research."
While the parties were covered by the JDA, Krug and Kwiatkowski had
discussions in a hallway in the courthouse when their attorneys
were not present. As trial approached, Kwiatkowski began to
cooperate with the government and shared in a proffer session the
statements Krug made during the hallway conversation. The
government
