Unveiling Privilege Challenges In Joint Corporate Defense Agreements

Four co-defendants meet with their joint defense counsel to discuss a pending lawsuit. The meeting ends and all participants are confident that the discussions will remain private. There is just one problem. One of the co-defendants recorded the conversation. And that co-defendant is ready to talk. Can that co-defendant waive the privilege for all defendants, or must all co-defendants consent?

In Howard v. IOMAXIS, LLC, the North Carolina Supreme Court considered this question, albeit in a narrower corporate context. Even so, parties and attorneys involved in joint representations should heed its warnings.

The law firm in IOMAXIS represented an LLC and its four members in a business court lawsuit. The firm provided general corporate counsel to the LLC. For this lawsuit, the law firm entered a separate engagement letter with the LLC and the four members. This second agreement provided that