Joint Representation of Criminal Defendants
A lawyer should zealously assert a client's position under the rules of the local criminal justice system. As a practical matter, this means that criminal defense attorneys should be wary of joint representation of criminal defendants. As courts have noted, “No man shall serve two masters.” However, under certain circumstances an attorney may be permitted to represent multiple codefendants accused of a crime stemming from the same matter. This article explores the legal basis and background in the United States and abroad of representing multiple codefendants.
Benefits of Joint Representation
Lawyers have a strong financial incentive to accept cases involving joint representation because these cases often involve increased fees and lower administrative costs. Clients themselves may suggest joint representation both for the convenience and the cost savings. In certain jurisdictions, the shortage of lawyers may also make joint representation more acceptable because this may be the only practical way for all criminal defendants to receive legal representation. Joint representation may also provide tactical advantages throughout the course of adjudication.
Risks of Joint Representation
Before accepting joint representation counsel should determine whether the defendants’ interests are adverse to one another, which is often very difficult to predict. Problems may manifest when one defendant’s defense is inconsistent with his or her codefendant’s defense. For example, when only one defendant is truly responsible, the attorney may be faced with the problem of admitting testimony that would exonerate one defendant while incriminating the other. A subtler problem is the appearance of guilt solely because the same counsel represents all defendants collectively. Further, issues involving confidentiality may arise, and the attorney’s independent professional judgment and loyalty may be compromised. Because of these problems, some legal scholars have advocated for an absolute ban on joint representation of clients in criminal and in civil cases.
Potential Problems as a Result of Representing Co-Defendants
- A Conflict of interest may arise as a result of trail tactics or testimony, during closing arguments, and during sentencing;
- Confidentiality Issues;
- Unfair outcome to one or both clients;
- One client may chose to accept a plea bargain;
- One client may be offered a plea bargain in exchange for testifying against the other client or other cooperation with the prosecution;
- Inability to challenge evidence prejudicial to one client, yet helpful to another;
- Inability to argue aggravating factors of other clients at sentencing or trial;
- One client’s confession may implicate the other client;
- Potential waste of time and resources if attorney must withdrawal late in the proceedings
A conflict of interest may prevent an attorney from doing any one of the following
- plea bargaining for one defendant to testify against another;
- challenging admission of evidence prejudicial to one client but favorable to another;
- arguing differing culpabilities of clients in sentencing in order to minimize the culpability of one by emphasizing that of another
Remedying Conflicts of Interest in Joint Representation
Attorneys have an affirmative duty to remedy a conflict of interest should it arise during joint representation. First, an attorney may withdraw from representing one or both clients. Second, an attorney may require defendants to sign waivers, although waivable conflicts in criminal cases would be very rare. Failure to remedy a conflict of interest may result in professional discipline or an action for malpractice on behalf of the defendants.
Defendants who are jointly represented by a single defense attorney may have a civil action against the attorney for professional malpractice if they can show they suffered damages and that the attorney violated professional standards. Finally, a defendant may have an appeal for ineffective assistance of counsel based on conflicts of interest.
Joint Representation by One Firm
Joint representation of co-defendants is generally prohibited by Legal Aid and Public Defender Offices in the United States because of the potential conflicts that may arise during the case. This prohibition applies to all lawyers in the office. As a result, outside counsel must be appointed to represent a co-defendant.
Practice Tips for Lawyers Contemplating Joint Representation
Criminal defense lawyers who are considering joint representation of two or more co-defendants should take several steps to determine if a conflict exists:
- Interview defendants separately in order to avoid accidental merger of defenses
- Conduct proper investigation to determine if the theory of the case is the same for both defendants.
International Legal Precedent
Human Rights Treaties
Although international treaties do not directly address the issue of multiple defendants, they do address the right to prompt legal assistance. Prompt legal assistance upon arrest and detention is a fundamental legal right that helps provide an efficient defense and protects the physical and mental integrity of the person accused. All relevant human rights treaties guarantee the right of an accused to legal counsel of one’s own choosing (art. 14(3)(d) of the International Covenant, art. 7(1)(c) of the African Charter and art. 6(3)(c) of the European Convention).
Article 8(2)(d) of the American Convention on Human Rights goes one step further and provides that an accused has the right “to communicate freely and privately with his counsel.” Rule 93 of the 1955 United Nations Standard Minimum Rules for the Treatment of Prisoners provides that, “For the purposes of his defence, an untried prisoner shall be allowed to apply for free legal aid where such aid is available, and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him confidential instructions.” The Standard Minimum Rules for the Treatment of Prisoners adopted by the Committee of Ministers of the Council of Europe by resolution (73)5 sets forth similar guidelines requiring that an accused be provided legal aid and the ability to communicate in confidence. Thus, it is possible to argue that such treaties are violated when a single lawyer represents codefendants due to lack of a confidential relationship between lawyer and client.
International Criminal Tribunal for the Former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR)
The ICTY and ICTR address potential issues arising from the representation of multiple defendants in their respective codes of professional conduct. Article 13 of the ICTY’s Code of Professional Conduct for Counsel Appearing Before the International Tribunal states: “Whether or not counsel continues to represent a client, counsel shall preserve the confidentiality of the client’s affairs and shall not reveal to any other person, other than to members of his team who need such information for the performance of their duties, information which has been entrusted to him in confidence or use such information to the client’s detriment or to his own or another client’s advantage.” (emphasis added). Article 14 of the same treaty sets forth rules regarding Conflicts of Interest. Section d prohibits representation of a client if that client or another client may be adversely affected by such representation.
Articles 8 and 9 of the ICTR’s Code of Professional Conduct for Defence Counsel address confidentiality and conflict of interest respectively. Article 8 mirrors the ICTY’s Article 13 requiring confidential communications, and Article 9 mirrors the ICTY’s preclusion of representation that may cause a client to be adversely affected.
Country Specific Applications
Counsel may represent codefendants in the United States as long as an actual conflict of interest does not adversely affect the lawyer’s performance. Representation of codefendants is addressed in the American Bar Association Model Rules of Professional Conduct (Model Rules), The American Bar Association Criminal Justice Standards (Standards), and case law.
American Bar Association Model Rules of Professional Conduct
The Model Rules set forth standards of professional competence and ethical conduct for the legal profession. Two rules in particular apply to the representation of codefendants: 1) Rule 1.6 Confidentiality of Information; and 2) Rule 1.7 Conflict of Interest: Current Clients.
- Rule 1.6 Confidentiality of Information - It is axiomatic that counsel may not reveal confidential information received from her client. Rule 1.6 of the Model Rules encompasses this fundamental ethical tenet. When a lawyer represents codefendants she may receive confidential information detrimental to another codefendant. Such situation will cause a conflict of interest and thus counsel must take remedial steps to remedy the conflict of interest, including withdrawal.
- Rule 1.7 Conflict of Interest: Current Clients - Rule 1.7(a) states that a concurrent conflict of interest exists if “the representation of one client will be directly adverse to another client; or there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client…” The Comment to Rule 1.7, paragraph 28, states that “[t]he potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one codefendant.” Paragraphs 29-31 further define the lawyer’s ethical duty when representing multiple defendants. The comment sets forth the requirement of lawyers to remain impartial between commonly represented clients, and therefore, the lawyer must not represent multiple clients when impartiality is unlikely to be maintained. The comment also discusses the effect of multiple client representation on lawyer-client confidentiality and the attorney-client privilege, noting that the attorney client privilege does not attach between commonly represented clients. “As to the duty of confidentiality, the continued common representation will almost certainly be inadequate if one client asks the lawyer not to disclose to the other client information relevant to the common representation.” If this situation arises, it is likely the lawyer will withdraw from representation of all clients involved in the matter. This situation may arise in the event that counsel represents multiple codefendants, and additional expense and delay will be incurred if counsel must withdraw from representation.
American Bar Association Criminal Justice Standard 4-3.5 Conflicts of Interest
Standard 4-3.5 is a strong restriction against the joint representation of criminal codefendants, prohibiting all joint representations of criminal codefendants where any possible conflict may arise. Standard 4-3.5(c) states the following:
"Except for preliminary matters such as initial hearings or applications for bail, defense counsel who are associated in practice should not undertake to defend more than one defendant in the same criminal case if the duty to one of the defendants may conflict with the duty of another. The potential for conflict of interest in representing multiple defendants is so grave that ordinarily defense counsel should decline to act for more than one of several codefendants except in unusual situations when, after careful investigation, it is clear either that no conflict is likely to develop at trial, sentencing, or at any other time in the proceeding or that common representation will be advantageous to each of the codefendants represented…"
Standard 4-3.5(c) does not promulgate a blanket prohibition on joint representation of criminal codefendants. It ensures that the only case where such representation will be tolerated is where the possibility of conflict is completely absent. Nonetheless, few decisions or legal periodicals cite or implement Standard 4-3.5.
- Holloway v. Arkansas, 435 U.S. 475 (1975) - In Holloway v. Arkansas, three defendants were charged with armed robbery and two counts of rape. One defendant confessed to police officers that he was the lookout while the others raped the women. The public defender, representing all three defendants, made a timely motion to appoint separate attorneys because of potential conflicts. The trial court denied the motion for counsel and motions to sever the trial. Shortly before the trial began, counsel renewed the motion. Several of the defendants indicated a desire to testify and he could not cross-examine them because of confidential information he received. The judge again denied the motions. At trial, the defendants choose to exercise their constitutional right to testify, and thus their lawyer was precluded from cross-examination. Instead, the judge required each defendant tell his story on the stand in a narrative fashion. All three defendants were convicted. On appeal, the Supreme Court held that joint representation is not unconstitutional per se, but in this case the trial court “failed to either appoint separate counsel or to take adequate steps to ascertain whether the risk of conflict was too remote to warrant separate counsel.” The Court went on to rule that a trial court is not precluded from “exploring the adequacy of the basis of defense counsel’s representations regarding conflict of interests without improperly requiring disclosure of the confidential communications of the client.” The Court recognized that representing multiple defendants prevents counsel from doing many important tasks including: 1) plea bargaining for one defendant to testify against another; 2) challenging admission of evidence prejudicial to one client but favorable to another; 3) arguing differing culpabilities of clients in sentencing in order to minimize the culpability of one by emphasizing that of another. Thus the Court concluded that whenever a trial court improperly requires joint representation over timely objection reversal is automatic.
- Wheat v. United States, 486 U.S. 153 (1988) - The Petitioner, along with other co-defendants, was charged with participation in a drug conspiracy. Attorney Eugene Iredale represented two defendants involved in the matter—the drug kingpin, who was acquitted on the drug charges, but subsequently pled guilty to tax evasion charges; and a smaller player in the conspiracy, who pled guilty. Just before trial, counsel proposed to represent the Petitioner as well. The government objected because the minor player would be called as a witness in the defendant’s trial and, if the kingpin’s tax evasion deal fell through, the defendant would likely be called as a witness in his trial. All three defendants waived the potential conflict of interest on the ground that it was speculative. The district court denied the motion to substitute counsel and allow counsel to represent the defendant. On review, the Court reasoned that it was difficult for an attorney to evaluate the risks of conflict because unforeseen testimony or evidence can significantly shift the relationship between multiple defendants. “These imponderables are difficult enough for a lawyer to assess, and even more difficult to convey by way of explanation to a criminal defendant untutored in the niceties of legal ethics.” Therefore, the Court held that trial courts “must be allowed substantial latitude in refusing waivers of conflicts of interest not only in those rare cases where an actual conflict may be demonstrated before trial, but in the more common cases where a potential for conflict exists which may or may not burgeon into an actual conflict as the trial progresses.”
- Section 2, American Bar Association Model Rules of Professional Conduct - Preamble and Scope
- Jeffry v. Pounds, 136 Cal. Rptr. 373 (Ct. Appl. 1977) quoting Matthew 6:24 (King James)
- Barr Ross, Joint Representation of Criminal Codefendants: A proposal to breathe life into Section 4-3.5(c) of the ABA standards relating to the administration of criminal justice. The Georgetown Journal of Legal Ethics, July 1 2002, https://www.highbeam.com/doc/1P3-209537381.html
- Bassett, Debra Lyn, Three's a Crowd: A Proposal to Abolish Joint Representation. Rutgers Law Journal, Vol. 32, p. 387, 2001. Available at SSRN: http://ssrn.com/abstract=1031514
- Human Rights in the Administration of Justice: A manual on Human Rights for Judges, Prosecutors and Lawyers, pg 235.
- Human Rights in the Administration of Justice: A manual on Human Rights for Judges, Prosecutors and Lawyers, pg 235
- Mickens v. Taylor, 122 S.Ct. 1237 (2002); Strickland v. Washington, 466 U.S. 668 (1984)
- ABA Model Rules of Professional Conduct, Preface; http://www.abanet.org/cpr/mrpc/preface.html
- ABA Model Rules of Professional Conduct, Rule 1.6 (a). http://www.abanet.org/cpr/mrpc/rule_1_7.html “A lawyer shall not reveal information relating to the representation of a client…”
- ABA Model Rules of Professional Conduct, Comment to Rule 1.6, paragraph 31. http://www.abanet.org/cpr/mrpc/rule_1_7_comm.html/
- Barr Ross, Joint Representation of Criminal Codefendants: A proposal to breathe life into Section 4-3.5(c) of the ABA standards relating to the administration of criminal justice. The Georgetown Journal of Legal Ethics, July 1 2002, http://www.allbusiness.com/legal/1096478-1.html