Whether or not to represent co-defendants is often the subject of query and debate. While the answer is not always clear, the best practice is certainly to avoid representing co-defendants because of an apparent or potential conflict of interest.
The Texas Disciplinary Rules of Professional Conduct address conflicts of interest in Rules 1.06 through 1.09, with each rule addressing differing situations. A look at Rule 1.06, Conflict of Interest: General Rule, and its comments reveals that conflicts are to be avoided because of the duty of loyalty a lawyer owes to his client.
Generally speaking, as addressed in Rule 1.06, a lawyer shall not represent opposing parties to the same litigation. This makes sense, and normally, it is the defendant and the government who are opposing parties in the same litigation. But, what about co-defendants? Do they share the same position in relation to the government, as an opposing party? Do they have substantially different possibilities of settlement of the claims or liabilities in question? Is there a substantial discrepancy in their testimony?
It’s important to look at Rule 1.06 and its comments when addressing these questions. “An impermissible conflict may exist or develop by reason of substantial discrepancy in the parties’ testimony, incompatibility in positions in relation to an opposing party or the fact that there are substantially different possibilities of settlement of the claims or liabilities in question.” Texas Rules Rule 1.06 cmt. 3. “Such conflicts can arise in criminal cases as well as civil. 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.” Id. (emphasis added).
Why is that? Let’s explore a couple of issues, among many that may arise. Where co-defendants have substantially different possibilities of settlement (i.e. different bargaining positions based on culpability or background) there is at least a potential for a conflict of interest between the co-defendants. Where their testimony or version of the facts differs, there again exists at least the possibility of a conflict of interest. As the lawyer, which client’s bargaining position is more important, whose version of facts is more important? That’s the inherent conflict…which client do you favor? Let’s assume two co-defendants, A and B, participated in a robbery. Both have asked you to represent them. A says they worked together and planned and executed the robbery. B tells you that A was the mastermind, having done this sort of thing before, and he should have a lesser or mitigated sentence based on lower culpability. Do you tell A to take the fall and help B get a lesser sentence? Do you tell B that he should keep quiet about A’s planning and leadership so that A can get a lesser sentence? What if both clients want to testify and their version of the facts are not the same? What if their defenses are inconsistent? In this over-simplistic example, it’s clear that one lawyer should not undertake to represent both clients as there is a real conflict. Sometimes the conflict is not quite as clear. But in almost every criminal case there at least exists the possibility for a conflict between the two clients.
Where either a conflict exists or an apparent conflict may exist, before you can represent the two clients, the clients must each provide informed consent to the representation. Because the rule is meant to protect the client, Rule 1.06 recognizes that a client can consent to a representation that would otherwise violate the conflict of interest rule if such consent is provided after sufficient disclosure. See Texas Rules Rule 1.06(c)(2) and cmts. 7-11. Informed consent must be thorough and complete with full disclosure to each client of the possible effects of the dual representation on the exercise of the lawyer’s independent professional judgment on behalf of each client. Consent further must be in writing, signed by each client. See Texas Ethics Opinion 448 (1988).
Should you decide a conflict does not exist or should the clients execute informed consent for dual representation, the court may still prohibit the dual representation. In a criminal case, inquiry by the court is generally required when a lawyer represents multiple defendants. Texas Rules Rule 1.06 cmt. 17. And, where the conflict is such as clearly to call in question the fair or efficient administration of justice, opposing counsel (i.e. the government) may properly raise the question. Id.
So, again, you ask, Can I represent two co-defendants? The bottom line is that there could be circumstances in which you could. But all too often a real or potential conflict will keep you from adequately and appropriately protecting each client’s individual interests and advocating each client’s individual position. This is why the comments warn that lawyers should decline, in most cases, to represent more than one co-defendant. The better practice is to simply represent only one!