Conflicts of Interest

Background

It is crucial that the defense attorney is dilligent 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

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.

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 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.

Waiver

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.

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See Ethics and Professional Responsibility