Conflicts of Interest

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It is crucial that the defense attorney is diligent and zealous in advocating on behalf of her client. Any conflict of interest that creates an incentive for the defense attorney to undertake representation that is anything less than zealous should be avoided. Conflicts of Interest are often analyzed by examining whether the conflict would harm the defendant's right to counsel.

If the criminel defense attorney represents a client and the defense attorney has an existing conflict of interest, the client may later have an action against the attorney for malpractice or ineffective assistance of counsel

Conflicts are a serious concern for criminal defense lawyers. They frequently occur in large criminal defense firms and public defender offices where the sheer number of cases increases the likelihood that a conflict will occur.

If one lawyer has a conflict of interest, that conflict may extend to other lawyers in the firm. Thus, two attorneys in one criminal defense practice should not represent adverse clients. Similarly, public defender offices do not represent generally co-defendants. Instead, a panel of "conflicts attorneys" appointed by the court will take these cases. If the jurisdiction is large enough they may even have two separate public defender offices set up to take conflicts.

Conflict is Raised Prior to or During Trial

A conflict if interest can be raised by the defendant or any other party at trial including the prosecutor or even, in theory, the judge. In thise case, the judge will examine the conflict to determine whether a conflict of interest potentially exists.

A potential conflict is one in which there is a significant risk that representation of the client will be materially limited by the criminal defense lawyers representation of a co-defendant, former client, third person, or personal interest.

Conflict is Raised After Trial

In many cases a conflict of interest will not be discovered until the defendant has already been convicted at trial. In thise case, the judge will examine the conflict to determine whether a conflict of interest actually existed. A conflict of interest can be raised on direct appeal or by any method of collateral review such as habeas corpus.

  • Co-defendants - A conflict of interest actually exists when one criminal defense attorney represents two co-defendants who have adverse interests. As a practical matter it is possible that one attorney can represent multiple defendants on the same charge. However, in practice this is very difficult.
  • Violation of Duty of Loyalty - A gross violation of the duty of loyalty may create an actual conflict of interest. In one case a conflict was found when the defense attorney informed the court that his client intended to commit perjury after the client informed him during a confidential interview that he was thinking of committing perjury.[1]


In some cases both potential and actual conflicts of interest may be waived by the defendant if the defendant provides informed and written consent to the conflict.

The trial court has discretion in determining whether a conflict of interest is, or is not, waivable. [2]

See Ethics and Professional Responsibility


  1. In State v. Jones, 278 Mont. 121 (1996)
  2. Wheat v. United States, 486 U.S. 153 (1988)