Criminal Law

Sharing a Criminal Lawyer: Joint Representation

Joint representation is when one attorney represents multiple defendants (called "co-defendants) who've been charged with the same crime. Sometimes, all defendants have one, single trial. Other times the co-defendants have separate trials. Regardless, if one attorney represents more than one defendant, there's joint representation.

When it comes to representing more than one person, an attorney may have a "conflict of interest." That is, an attorney must give his client "effective assistance." This includes giving his full attention and doing everything possible to protect his client's rights. So, when the same attorney represents more than one co-defendant, there's the possibility that he can't do those things for all co-defendants.

There are, however, safeguards to help make sure that co-defendants get the effective assistance of counsel that's guaranteed by the Sixth Amendment to the US Constitution. These include:

  • Requiring the courts to explain joint representation to all defendants
  • Allowing co-defendants to "waive" a conflict and allow the joint representation, and
  • Removing or "disqualifying" an attorney and not allowing joint representation

What a Court Must Do

Generally, the judge of the court where the trial will be held (called the "trial court") has to explain to each defendant that she has the right to effective assistance of counsel and the right to separate counsel. This has to be done as soon as possible and before the actual trial begins.

If the judge knows or has a good reason to believe that a conflict of interest exists or might come up during the trial, she has to take some action to protect each defendant's right to counsel. This may include:

  • Requiring each co-defendant to sign a written waiver of the right to "conflict-free" counsel, or
  • The disqualification of joint counsel and the appointment of separate counsel for each co-defendant

Conflict of Interest

The judge has to take action to protect the defendants' rights only when there's an "actual conflict of interest." That means there's a conflict that has an adverse or negative impact on the attorney's ability to represent the defendants properly and effectively. The judge may become aware of a conflict:

  • Through his own knowledge of the attorney and the defendants. For example, when the judge knows that the co-defendants' court-appointed public defender is also a city police commissioner, the judge has to tell the defendants about this conflict of interest and investigate it before allowing joint representation, or
  • By being alerted to a conflict by a defendant or the attorney. A good example is when a court-appointed public defender tells the judge that he can't raise a particular defense for one defendant without making a co-defendant look guilty

Any number of things may qualify as a conflict of interest that may make joint representation inappropriate, but some examples include cases where:

  • One co-defendant is far more blameworthy for the crime than another defendant
  • Each co-defendant would incriminate or make the other defendant look guilty if they testified at trial
  • One co-defendant wants to plead guilty while the other wants to go to trial
  • One defendant's lawyer works for the same law firm as a co-defendant's attorney

Waiver of Conflict-Free Counsel

If there's a conflict, joint representation is appropriate usually only if the defendants accept the risk of the conflict and waive their right to conflict-free counsel. The waiver has to be "knowing and intelligent." That means that they have to understand what's going on. To make sure the waiver is good, most courts take several steps, such as:

  • Explaining to the defendants what the conflict is and the potential hazards to their individual defenses if they decide to stick with joint representation
  • Allowing the defendants to talk to a different lawyer
  • Giving them time to think about their decision before starting the trial

Disqualification and Appointment of Separate Counsel

A judge may stop or "disqualify" an attorney from representing co-defendants and appoint separate counsel for each defendant when the:

  • Co-defendants refuse to waive the conflict, or
  • The judge can't allow a waiver because there's an obvious conflict of interest before trial, or when it's clear that a potential conflict that may later develop into an actual conflict. A good example is when there's a chance that a co-defendant may be called as a witness against another co-defendant

The judge has to balance each defendant's right to choose his own attorney and the judge's duty to protect the public's faith and confidence in the judicial system. Sometimes, allowing joint representation when there's a conflict of interest may make a criminal trial look like a sham or unfair. For example, an attorney will be disqualified from joint representation when he's not only a witness to the crime, but he was actually a participant in that crime.

Questions for Your Attorney

  • I and two co-defendants are going to be tried together. I don't want the count-appointed lawyer to represent me, but the other two do. Is there anyway I can stop that lawyer from representing them?
  • A co-defendant and I were convicted of robbery and we had joint representation. Just before my sentencing hearing I found out that our attorney represented my co-defendant last year on a different robbery charge. Isn't that a conflict of interest?
  • A co-defendant and I were accused of drug trafficking. At trial, our attorney paid lot more attention to my co-defendant's case than mine because, I think, my co-defendant was looking at a long prison sentence because he has two prior convictions. We were both convicted. I don't think I got the effective assistance of counsel. What do you think?
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