In affirming a conviction for obstruction of justice and perjury against the former Chief Financial Officer of Empire Blue Cross/Blue Shield, the United States Court of Appeals for the Second Circuit has held that, without an explicit joint defense agreement, statements by defendant at a meeting attended by his counsel and counsel for Empire were not privileged under the common interest rule. In connection with a Senate committee investigation of Empire, both Empire and defendant retained separate counsel. The day before a joint defense agreement was reached, defendant met with his counsel and counsel for Empire and made incriminating statements. The government subsequently used those statements as evidence at his trial. Because defendant failed to establish that a joint defense agreement had been entered prior to or during that meeting, the Second Circuit held that his statements were not privileged, and it affirmed his conviction. (United States v. Weissman, 1999 WL 961741, 2d Cir., 10/21/99)
Statements before Joint Defense Agreement Reached Not Privileged
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