Conflict Question Often Asked: Can I represent co-defendants?
The short answer: maybe you can, but generally you should not. The Texas Disciplinary Rules of Professional Conduct address this and other issues attorneys face.
Rule 1.06: A lawyer shall not represent opposing parties and a lawyer shall not represent a person if the representation of that person involves a substantially related matter in which that person’s interest are materially and directly adverse to the interests of another client.
While co-defendant representation is not always prohibited by the rules, Comment 3 provides that the 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 co-defendant.
Informed consent – Rule 1.06 comments: A client under some circumstances may consent to representation notwithstanding a conflict or potential conflict. However, as indicated in paragraph (c)(l), when a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved should not ask for such agreement or provide representation on the basis of the client’s consent.
Comment 8 recommends that the disclosure of the conflict of interest and the consent be in writing. It would be prudent, the rules states, for the lawyer to provide potential dual clients with at least a written summary of the considerations disclosed.
Out for one, out for all – Rule 1.06: A lawyer who has represented multiple parties in a matter shall not thereafter represent any of such parties in a dispute among the parties arising out of the matter, unless prior consent is obtained from all such parties to the dispute.
Knowing the rules above, it is clear as to why it is seldom a good idea to have the same lawyer represent more than one person in a criminal matter. Where two or more people are charged with acting together to commit a crime, they are referred to as co-defendants. Co-defendants will often have different alleged roles in the offense. This means they often have differing levels of culpability and mitigation. It is difficult for one lawyer to advise both when their interests are not always aligned. The classic example of conflict exists where the government seeks to “trade” one defendant for the other: the government will offer a great plea-bargain to one in exchange for that person testifying against the other whom they see as more culpable or dangerous. In that instance, does the lawyer tell client A to take the deal and testify against client B, even though that will harm his other client? Does the lawyer tell client A not to take the deal, risk greater punishment, and save client B?
Lawyers owe a duty of loyalty to each and every client (and former client). Thus, the lawyer cannot advise one client to harm another or refrain from harming another. Each is entitled to diligent and conflict free representation.
You can also view my HCCLA guest blog on the subject!