Joint Representation Of Criminal Defendants

joint representation

A criminal defendant has the right to effective assistance of legal counsel under the Sixth Amendment to the U.S. Constitution.   This right is so important that if a defendant cannot afford to hire a lawyer, the court will appoint public counsel for him.   Where the defendant hires his own lawyer, the right to counsel includes an attorney of choice.   However, the right to choose your own lawyer is not absolute and may be limited by the court if the defendant seeks joint representation with one or more defendants from a single attorney that poses a conflict of interests.

What is Joint Representation?

Joint representation occurs when two or more criminal defendants are represented by a single attorney.   Many courts frown on joint representation and discourage defendants and defense attorneys from joint representation relationships.  These relationships, while not illegal or absolutely impossible, have the possibility for a conflict of interests.  Every defendant is entitled to effective, conflict-free representation from his lawyer.   This means he is entitled to have a lawyer whose experience, abilities and loyalties are not compromised or conflicted by relationships the lawyer may with other clients.   

Conflicts of Interest in Joint Representation

Conflicts of interests may arise from joint representation. Examples include, but are not limited to trial strategy, trial preparation, plea bargaining or the use of possible defenses.  For example, the government may offer one defendant a sentencing leniency or favorable plea bargain terms in exchange for his or her cooperation against a co-defendant.  Similarly, if both defendants proceed to trial, an effective trial strategy for one defendant may be detrimental to another defendant such as allowing one defendant to testify while the other remains silent.  Counsel may also be limited in arguments or positions on behalf of one client that may adversely impact another.   For these reasons, the law recognizes that conflicts of interest may presently or have the potential to arise in the future.  Lawyers have an ethical obligation to avoid jointly representing individuals who have actual or foreseeable future conflicts of interests that cannot be reconciled.

While joint representation is rare, it is not unlawful or impermissible.   When presented with an actual or potential conflict, related defendants in one case may still use the services of a single lawyer if they knowingly and intelligently waive the right to be represented by separate counsel. The waiver, when knowingly and intelligently made, presupposes that a defendant realizes the consequences of his choice and the available alternatives he has to either hiring another lawyer or seeking the appointment of public counsel, if financially eligible.

A lawyer or defendant seeking joint representation should evaluate the actual conflicts or potential conflicts that may arise, if any, from the proposed relationship.  They should also consider the effects such conflicts have on the case and overall legal representation for all parties concerned.  If the conflict are irreconcilable, the joint representation should be avoided.  If no conflicts exist or if the existing or potential conflict is reconcilable, the defendants may be jointly represented by a single lawyer.

Under Federal Rule of Criminal Procedure 44 (c), when a court is presented with a joint representation, the trial judge must inquire of each defendant seeking joint representation by a single lawyer.   The court should comment on some of the risks presented where defendants are jointly represented to insure they are aware of them, and to inquire diligently whether they have discussed the risks with their attorney and understand that the options of having an attorney of their own, whether private hired or publicly appointed.  Courts may often appoint standby counsel to aid with these hearings to allow each defendant to consult separately with an independent lawyer, apart from the proposed joint attorney, to ensure the defendant is fully aware of the actual and/or potential conflicts associated with joint representation, and that he is knowingly and intelligently waiving his right to conflict free legal representation in order to be jointly represented, along with other(s), by a single attorney.  After the inquiry, unless there is good cause to believe that no conflict of interest exists or is likely to arise, the court must act to protect each defendant’s right to counsel by disallowing the proposed joint representation.

Hiring The Right Lawyer

            In sum, your 6th Amendment right to counsel is of the most importance.  Hiring the right lawyer for you could mean the difference between your freedom and involuntary incarceration.  All defendants should be allowed to have an attorney of choice.  Because this right is not absolute, consult for free with an experienced criminal defense lawyer today by calling the Law Office of John L. Calcagni III, Inc.