joint defense in Texas

2015LAW. 20, 21 (1996) ("The joint defense-common interest privilege must rest upon an underlying privilege such as the attorney-client privilege or the attorney work product privilege."). 78 Id. 79See generally Exhibits P and Q; respectively.

2013Recognizing that the scenario is not expressly addressed by the Rules of Disciplinary Procedure, the court held that “a party who claims the joint defense privilege as a basis for disqualification of counsel must establish in an evi-dentiary hearing 1) that confidential information has been shared and 2) that the matter in which that information was shared is substantially related to the matter in which disqualification is sought.” Rio Hondo, 903 S.W.2d at 132 ; accord In re Skiles, 102 S.W.3d 323, 327 (Tex.App.-Beaumont 2003, orig. proceeding).

2012The attorney-sharing requirement helps prevent abuse by ensuring that the common-interest privilege only supplants the disclosure rule when attorneys, not clients, decide to share information in order to coordinate legal strategies.” (citation omitted)); United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir.1989) ("[The joint defense privilege] serves to protect the confidentiality of communications passing from one party to the attorney for another party where a joint defense effort or strategy has been decided upon and undertaken by the parties and their respective counsel.”) (emphasis added

2006When applicable, the joint defense “privilege” “cloaks communications with confidentiality where ‘a joint defense effort or strategy has been decided upon and undertaken by the parties and their respective counsel.’ ” See United States v. Gotti, 771 F.Supp. 535, 545 (E.D.N.Y.1991) (quoting United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir.1989)).

2012Evid. 503(b)(l)(C)[,] ... [w]hen applicable ... 'cloaks communications with confidentiality where "a joint defense effort or strategy has been decided upon and undertaken by the parties and their respective counsel.” ' ” (quoting United States v. Gotti, 771 F.Supp. 535, 545 (E.D.N.Y.1991))). .

2006When applicable, the joint defense “privilege” “cloaks communications with confidentiality where ‘a joint defense effort or strategy has been decided upon and undertaken by the parties and their respective counsel.’ ” See United States v. Gotti, 771 F.Supp. 535, 545 (E.D.N.Y.1991) (quoting United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir.1989)).

1996Alternatively, if any fiduciary duty arose, it was a limited duty actually to maintain the confidences shared in the joint defense, see Wilson, supra, 559 F.2d at 253 (attorney for co-defendant "breaches his fiduciary duty if he later, in his representation of another client, is able to use this information"), and the Court concludes as a matter of law that Baker & Botts' current representation does not breach that duty.

1996Alternatively, if any fiduciary duty arose, it was a limited duty actually to maintain the confidences shared in the joint defense, see Wilson, supra, 559 F.2d at 253 (attorney for co-defendant "breaches his fiduciary duty if he later, in his representation of another client, is able to use this information"), and the Court concludes as a matter of law that Baker & Botts' current representation does not breach that duty.

2015Texas courts "have generally applied Rule 503(b)(1)(C) to joint defense situations where multiple defendants, represented by separate counsel, work together in a common defense." In re XL Specialty Ins., 373 S.W.3d at 51 ; see also In re Daleo, 186 S.W.3d 660, 666 (Tex.App.-Beaumont 2006, no pet.) ("When applicable, the joint defense privilege cloaks communications with confidentiality where a joint defense effort or strategy has been decided upon and undertaken by the parties and their respective counseL") .

2012See, e.g., In re JDN Real Estate — McKinney L.P., 211 S.W.3d 907, 922 (Tex.App.-Dallas 2006, orig. proceeding [mand. denied]) ("[R]ule 503(b)(1)(C) ... address[es] the joint-defense privilege, which applies when multi-pie parties to a lawsuit represented by different attorneys communicate among themselves.”); In re Dalco, 186 S.W.3d 660, 666 (Tex.App.-Beaumont 2006, orig. proceeding [mand. denied]) ("... [T]he 'joint defense privilege,’ found in Tex.R.

2006Ultimately, we find Godbey's applicability to be narrowly confined to the somewhat unique set of facts and circumstances arising in that case, but not to the starkly contrasting factual situation before us. (1) "Mandamus is an extraordinary remedy, available only when a trial court clearly abuses its discretion and when there is no adequate remedy on appeal." In re Kuntz , 124 S.W.3d 179 -80 (Tex. 2003) (citing Walker v. Packer , 827 S.W.2d 833, 839 (Tex. 1992)).

2006Ultimately, we find God-bey’s applicability to be narrowly confined to the somewhat unique set of facts and circumstances arising in that case, but not to the starkly contrasting factual situation before us. 1 “Mandamus is an extraordinary remedy, available only when a trial court clearly abuses its discretion and when there is no adequate remedy on appeal.” In re Kuntz, 124 S.W.3d 179 -80 (Tex.2003) (citing Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992)).

2006Thus, Tomko agreed that any communications from other participants in the joint defense were "confidential and . . . protected from disclosures to any third party by the joint defense privilege, the attorney-client privilege and the work product privilege." Id. (citation omitted).

2006Thus, Tomko agreed that any communications from other participants in the joint defense were “confidential and ... protected from disclosures to any third party by the joint defense privilege, the attorney-client privilege and the work product privilege.” Id. (citation omitted).

2016With the parties’ agreement, the trial court conducted a joint hearing on both defendants’ motions. –5– A. Standard of Review We review a trial court’s motion to suppress evidence ruling for an abuse of discretion, Arguellez v. State, 409 S.W.3d 657, 662 (Tex. Crim.

2015The joint defense privilege is not an independent privilege, but an extension of the attorney-client or work product privileges that creates "an exception to the general rule that no attorney-client privilege attaches to communications that are made in the presence. of or 72 See State v. Lowry, 802 S.W.2d 669, 671 (Tex. 1991).

2015The State asked that the trial court take judicial notice of all documents in the four cases, allowing the court to consider the whole of the Clerk’s Record.1 See In re C.S., 208 S.W.3d 77, 81 (Tex. App.—Fort 1 The State asked the trial court to take judicial notice during a joint hearing of all four cases.

2012See Proposed Fed.R.Evid. 503(b)(3), reprinted in 56 F.R.D. 183 , 236 (1972) (protecting communications between a client "to a lawyer representing another in a matter of common interest”); see also, e.g., In re Santa Fe Int'l Corp., 272 F.3d 705, 710 (5th Cir.2001) (noting that the common interest privilege applies to both communications between co-defendants in actual litigation and their counsel as well as to "communications between potential co-defendants and their counsel” (emphasis in original)); United States v. Schwimmer, 892 F.2d 237, 243-44 (2d Cir.1989) (" ‘The need to protect the fre

2012Corp., 263 F.R.D. 142, 146 (D.Del.2009) (“[T]o qualify for and to maintain continued protection [under the common interest privilege], the communication must be shared between counsel.”); Waijkowiak, at 18 (noting that the joint defense doctrine “does not apply to ... communications [made directly to] other parties themselves”). 12 This attorney-sharing requirement makes clear that the privilege applies only when the parties have separate counsel.

2012See In re Teleglobe Commc’n Corp., 493 F.3d 345 , 363 n. 18 (3d Cir.2007) (“[M]uch of the caselaw confuses the community-of-interest privilege (which is the same as the ‘common-interest privilege’ ...) with the co-client privilege.”) (citation omitted). 3 Unlike the joint client rule, the joint defense and common interest rules apply when there has been sharing of information between or among separately represented parties.

2012See, e.g., In re Teleglobe, 493 F.3d at 365 (“[T]he [common interest] privilege only applies when clients are represented by separate counsel.”); Griffith v. Davis, 161 F.R.D. 687, 692 (C.D.Cal.1995) (“The [joint defense] doctrine applies where parties are represented by separate counsel but engage in a common legal enterprise.”).

2012See, e.g., In re Ford Motor Co., 988 S.W.2d 714, 719 (Tex.1998) (declining to extend the attorney-client privilege to communications between an insured and liability insurer where "at the time [the insured] made her statements, there was no attorney-client relationship” between her and her insurer); see also In re Tex. Farmers Ins.

2012In re JDN, 211 S.W.3d at 923 .

2012See, e.g., In re JDN Real Estate — McKinney L.P., 211 S.W.3d 907, 922 (Tex.App.-Dallas 2006, orig. proceeding [mand. denied]) ("[R]ule 503(b)(1)(C) ... address[es] the joint-defense privilege, which applies when multi-pie parties to a lawsuit represented by different attorneys communicate among themselves.”); In re Dalco, 186 S.W.3d 660, 666 (Tex.App.-Beaumont 2006, orig. proceeding [mand. denied]) ("... [T]he 'joint defense privilege,’ found in Tex.R.

2012See, e.g., In re Teleglobe, 493 F.3d at 365 (“[T]he [common interest] privilege only applies when clients are represented by separate counsel.”); Griffith v. Davis, 161 F.R.D. 687, 692 (C.D.Cal.1995) (“The [joint defense] doctrine applies where parties are represented by separate counsel but engage in a common legal enterprise.”).

2011App. 1982); Martinez v. State, 833 S.W.2d 188, 191 (Tex. App.—Dallas 1992, pet. ref’d). 9 for its admission but raised distinctive arguments, and both defendants’ arguments were resolved in a joint hearing.

2010See Amalgamated Acme Affiliates, Inc. v. Minton, 33 S.W.3d 387 , 392 n.2 (Tex. App.—Austin 2000, no pet.) (noting party may adopt motion or pleading of another party where record contains sufficient indication of intent to adopt).

2004Litig . , 89 F.R.D. 595, 604 (N.D.

1996NME next claims that the joint defense gave rise to a fiduciary duty that would support disqualification. ‘Where the underlying facts are undisputed, determination of the existence, and breach, of fiduciary duties are questions of law, exclusively within the province of the court.” Lacy v. Ticor Title Insurance Co., 794 S.W.2d 781, 787 (Tex.App.-Dallas 1990), writ refused per curiam, 803 S.W.2d 265 (Tex.1991) (per curiam opinion expressing disapproval of unrelated portion of Court of Appeals’ opinion).

1996"Where the underlying facts are undisputed, determination of the existence, and breach, of fiduciary duties are questions of law, exclusively within the province of the court." Lacy v. Ticor Title Insurance Co., 794 S.W.2d 781, 787 (Tex. App.-Dallas 1990), writ refused per curiam, 803 S.W.2d 265 (Tex.1991) (per curiam opinion expressing disapproval of unrelated portion of Court of Appeals' opinion).