Criminal Law Newsletter
| Publication year | 1980 |
| Pages | 97 |
1980, January, Pg. 97. Criminal Law Newsletter
The scene is all too familiar. The survivors of a bust have just made bond, and are straggling into your office en masse. Or it is the young successful couple you play doubles with who come into your office with a tax-evasion or S.E.C. indictment, and only now tell you about the conversations they had with the Grand Jury last month. Or perhaps it's the two boys from down the street who came home from college for the Christmas holidays, got a little too loose one night, and are preparing for a first-hand lesson in Municipal Court procedures. Whatever the situation, the problem is the same: more than one person has been charged with a criminal offense arising from a single incident or transaction, and they all want you to be their lawyer.
This situation does wonders for the ego, but plays havoc with the attorney's ethical considerations as well as the constitutional rights of the defendants. Multiple representation of defendants in a criminal action by a single attorney has been a subject of great concern for many years, and recently some definitive guidelines have emerged which offer us hope for recognizing this problem and dealing with it.
Two distinct interests come into play whenever a possibility of joint representation is present. The first of these is each defendant's interest in the effective assistance of counsel which is guaranteed to him by the Sixth Amendment to the United States Constitution. More than thirty-five years ago, the Supreme Court recognized that by requiring an attorney to represent two co-defendants whose interests were in conflict, a trial court had denied one of the defendants his right to effective assistance of counsel.(fn1)
However, the defense attorney involved in such a case has a separate and distinct interest in discharging his ethical obligation to his client. The Code of Professional Responsibility strictly mandates that a lawyer may not accept employment which is likely to involve him in representing different interests, and shall not accept multiple employment if it is likely to affect adversely his representation of another client or another client's interests.(fn2) The ethical considerations mandate that in such situations, a lawyer should resolve all doubts against the propriety of such representation if a problem occurs.(fn3)
An additional safeguard is codified in Rule 44(c) of the Federal Rules of Criminal Procedure, which becomes effective December 1, 1980.(fn4) The new rule imposes a duty upon the trial court to make inquiry of defendants and their counsel whenever two or more defendants have been joined for trial and are represented by one lawyer or by counsel who are associated in the practice of law. The trial judge must advise each defendant of the consequences of joint representation, and must determine if a conflict...
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