Disputes in litigation These conflicts can arise in both criminal and civil cases. The possibility of a conflict of interest when representing multiple defendants in a criminal case is so serious that, in general, an attorney should refuse to represent more than one co-defendant. The reasons why a lawyer should not represent criminal co-defendants are twofold. First, there are almost always conflicts between criminal co-defendants.
Some conflicts arise because a defendant decides to “turn against another”. Examples include situations where a defendant wants to testify against another or where a defendant confesses and his confession involves the other defendant. In these situations, it is clear that the lawyer cannot maintain his duty of loyalty to both clients. Courts in this country are divided as to whether a lawyer can represent a criminal defendant when he is also representing a key prosecution witness during a trial. For example, under New York law, a real conflict of interest existed when an attorney represented both a defendant and a man who raped the defendant's daughter, a witness.
Can an attorney represent or continue to represent more than one co-defendant in a criminal case after recognizing the existence of a potential conflict of interest between them? This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of the California State Bar Association. It is not binding on the courts, the California State Bar Association, its Board of Governors, regulatory individuals or courts, or any member of the State Bar Association. A Colorado criminal defense attorney should almost never represent more than one defendant or target of an investigation in a single investigation or prosecution for criminal charges. In doing so, the lawyer must fairly and thoroughly analyze the factual circumstances and arrive at a reasoned judgment about whether a conflict exists and, if not, about the likelihood of one arising. With regard to the exception to the rule, as established in the former canons of the United States Bar Association and in its current Rules of Professional Responsibility (i.e., that defendants in criminal cases, after having been explained to them of the potential conflict, as well as all the implications of that conflict, can give their consent to the lawyer to continue representing several defendants), it seems that this exception does not apply in cases where the public defender is involved.
According to the old canons of the United States Bar Association, which were recently replaced by the Code of Professional Responsibility, and, apparently, according to the new code, the lawyer must not undertake to represent the client or to continue to represent him if a conflict is possible. Some courts have suggested that the joint representation of those accused of criminal offences always poses an inalienable conflict. Therefore, unless the interests of the two clients match, or the lawyer can obviously represent the conflicting interests, the lawyer must withdraw from representing at least one of the clients once the criminal investigation begins. Problems can arise when a defendant's defense is incompatible with the defense of his co-defendant.
The lawyer may represent several witnesses in a single investigation or prosecution, provided that neither is the subject of the investigation and they do not accuse each other of having committed a criminal offence. A Colorado criminal defense attorney can represent co-defendants at the initial appearance or hearings. of bail. Because of these problems, some legal experts have advocated an absolute ban on joint representation of clients in criminal and civil cases.
Whether it's obvious that an attorney can do this depends largely on the nature of the conflict between the two clients. While there may be some procedures in a criminal case where the same lawyer appears on behalf of more than one client, the general process of representing defendants in a criminal matter usually requires an independent attorney for each of them. While joint defense agreements are legal and ethical, prosecutors tend to view them as conspiracies to obstruct justice. An attorney's duty to preserve a client's trusts and secrets is ongoing and survives the termination of an attorney-client relationship. Finally, even if the lawyer has done everything mentioned above, some courts may find that certain conflicts cannot be ruled out because “no rational defendant would knowingly and intelligently desire the representation of an attorney.” Lawyers have a strong financial incentive to accept cases involving joint representation, as these cases often involve increased fees and a reduction in administrative costs.
