United States v. Gonzalez

Communications under an implied joint defense agreement are protected by attorney client privilege but the agreement may be terminated by the conduct of the parties.

Gonzalez challenged "an order denying his motion to quash a subpoena in a section 22551 habeas proceeding brought by his wife, [] Paiz." During the initial trial for insurance fraud, Gonzalez and Paiz were represented by separate counsel, who acted under an implied joint defense agreement. The district court held that even if a joint defense agreement existed, the communications between the parties were work product and therefore not entitled to absolute privilege. The Ninth Circuit noted that an implied joint defense agreement could be terminated by the conduct of the parties. The Ninth Circuit also noted that joint defense agreements give rise to attorney client privilege. The Ninth Circuit held that (1) it was unclear when the joint defense agreement ended and (2) the lower court erred in allowing unilateral waiver of the privileged information. The Ninth Circuit remanded to the "district court for an in camera evidentiary hearing to determine if and when the [joint defense agreement] ended, and when the communication at issue [in the present case] was made." REVERSED and REMANDED.