Criminal Procedure Joint Representation: Sharing a Criminal Attorney

When several different criminal defendants are facing charges arising from the same crime and are all represented by the same criminal lawyer, those defendants have "joint representation." These defendants, known as "co-defendants," are "joined" together in their defense. While it may seem convenient and cost efficient to hire just one criminal lawyer for all the defendants, it is extremely important to understand the full consequences of electing to have joint representation.

Criminal Procedure

In a case of joint representation, the co-defendants of a criminal charge may opt to have one single trial for all of them or they may each be tried separately at individual trials. In each circumstance, one criminal lawyer will represent all the criminal co-defendants.

Effective Assistance of Counsel is Guaranteed

The Sixth Amendment to the Constitution guarantees that all criminal co-defendants are assured of receiving effective assistance from counsel. As such, the court will:

• provide a sufficient explanation of joint representation to each co-defendant so that they understand the benefits and consequences;
• allow the co-defendants to "waive" (or allow) a potential conflict of interest in order to allow joint representation to occur; and
• disallow joint representation by disqualifying a criminal lawyer for valid reason.

Conflict of Interest: Inherent in Joint Representation

A criminal attorney is required to provide every client with "effective assistance of counsel." This means that the lawyer must provide to each client his or her full attention and do everything in his or her power to protect the rights of that client. When a lawyer's attention is focused on the needs of several different clients in the same case, it may be difficult or even impossible for a criminal lawyer to be able to provide these requirements in full to each co-defendant. This situation is known as a "conflict of interest," where the interests of different parties (or clients) conflict with each other.

Conflicts of interest can occur in many situations and make it difficult and sometimes inappropriate for joint representation by a single criminal lawyer. One such example includes the situation where some of the defendants are more culpable (blameworthy) for a crime than the others. Some of the individual co-defendants might be called to the stand to testify and their testimony might incriminate one of the other co-defendants. How can a criminal lawyer effectively represent both the accuser and the person accused of being guilty of a crime? It is not optimal for a criminal lawyer to effectively cross examine and challenge the truth of a witness who is also his or her client. Complications can arise when one of the co-defendants agrees to take a guilty plea in exchange for testifying against the other co-defendants who want to take the case to trial. Strategically it can also be difficult when the criminal lawyers of different defendants are employed by the same law firm.

Court Action Required

At the beginning of a case where joint representation occurs, the judge must inform each co-defendant that he or she is entitled to receive effective assistance from counsel as a matter of law as well as having separate legal representation. Disclosures may be provided to the judge by joint counsel for the co-defendants which may also require the judge to take action to protect their rights. For example, a court appointed attorney may inform the judge that preparing and defending a case for one defendant may result in making another joint defendant appear guilty of the crime. In another example, a judge may be informed that the court appointed criminal attorney representing the co-defendants also represents crime victims in civil court to sue convicted felons for money damages. In each instance, the judge will need to explain these conflicts of interest to each criminal co-defendant to ensure they may make an informed decision about whether they wish to be represented by the criminal lawyer.

In the event that the judge believes there is a possibility of a conflict of interest during trial, the judge may take steps to protect the rights of the co-defendants. The judge may either (1) require each co-defendant to sign a conflict waiver of their entitlement to counsel, free from conflict; or (2) terminate the joint representation and appoint separate counsel to each affected co-defendant.

Waiver to Counsel, Free From Conflict

When it is clear that a conflict of interest is occurring, joint representation may still be permissible under certain special circumstances. Each of the co-defendants be fully aware of and understand the risk of joint representation and explicitly agree to waive (or "knowingly forgo") their right to counsel free from conflict of interest. The defendants must sign a waiver and be considered "knowing and intelligent" – able to understand the risks involved with joint representation by one criminal attorney. The court may:

• Explain the conflict of interest to each defendant and how it impacts their ability to be defended effectively by their joint criminal lawyer;
• Permit the defendants to discuss their case with another criminal lawyer;
• Give the defendants time to consider their options before they actually go to trial

Lawyer Disqualification and Appointment of Separate Counsel

There are certain circumstances which would result in the judge disqualifying a lawyer from representing the co-defendants and appointing separate counsel for each of the co-defendants. One such situation occurs when the co-defendants refuse to sign the waiver for counsel, free of conflict. A similar issue arises where the judge cannot allow the defendants to sign a waiver because the conflict of interest is obvious pre-trial or when it is obvious that the conflict will arise during the trial. An example of this would be if there is a high probability that one of the defendants would be required to testify against another co-defendant. Another rare situation where an attorney would obviously be disqualified from serving as counsel for the defense would be where the attorney was a witness or participated in the commission of the crime.

Ultimately it is the judge who is responsible to weigh the entitlement of criminal defendants to choose their own criminal lawyer against the duty to protect the public confidence and faith in the judicial system. The appearance of a conflict of interest at a criminal trial would make the process appear unfair to both the public and the parties.