Two Heads Are Not Always Better Than One: the Risks of Joint Representation in Criminal Matters

• Publication year: 2022
• Author: Irean Zhang

TWO HEADS ARE NOT ALWAYS BETTER THAN ONE: THE RISKS OF JOINT REPRESENTATION IN CRIMINAL MATTERS

Irean Zhang^*

Lawyers owe numerous duties to their client, chief amongst them the duty of loyalty. Lawyers commonly represent more than one client in a civil matter with the clients' informed written consent, but the same representation becomes tricky in a criminal matter. While joint representation of two clients in a criminal matter is permissible and possible, it is filled with perils that can place an attorney in untenable situations.

For lawyers in California, the California Rules of Professional Conduct¹ and common law govern when a lawyer may represent more than one client in a criminal matter.

California Rules of Professional Conduct rule 1.7² prohibits a lawyer from representing a client without informed written consent if the representation is directly adverse to another client in the same or a separate matter or if there is a significant risk that the representation will be materially limited by the lawyer's responsibility or relationship with another client, a former client, a third party, or by the lawyer's own interest. Subsection (d) of rule 1.7 identifies three circumstances where representation is prohibited: (1) if the lawyer does not reasonably believes he or she will be able to provide competent and diligent representation to each affected client; (2) the representation is prohibited by law; and (3) the representation involves the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal.

A joint representation could also implicate rule 1.1 (competence),³ if the representation impairs the lawyer's ability to provide competent legal representation. An attorney engaged in a joint representation must also be mindful of rule 1.6 (confidentiality) and Business and Professions Code section 6068(e)(1), as the duty of confidentiality extends to all joint clients in the representation. An attorney must also comply with rule 1.4 (communications), which requires him or her to keep each client reasonably informed about significant developments relating to the representation and to promptly inform each client of any decision or circumstance where the client's informed consent is required.

In addition to the California Rules of Professional Conduct, the United States Constitution also affects a lawyer's ability to take on a joint representation. Unlike civil matters, joint representation in criminal matters implicates the Sixth Amendment right to counsel. It also presents a conflict between a defendant's right to counsel of his or her choice and the right to effective assistance of counsel, which includes the right to conflict-free representation. It is well-established that joint representation of criminal defendants "is not per se violative of the constitutional guarantees of effective assistance of counsel."⁴ Trial courts cannot

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ban joint representation in criminal cases and there is a presumption in favor of a criminal defendant's choice of counsel. A criminal defendant may also waive his or her right to conflict-free counsel. However, trial courts can refuse to allow joint representation⁵ where the circumstances show that a conflict of interest exists, notwithstanding the client's waiver and consent.⁶ And in some situations, a conflict in a joint representation of criminal defendants can overcome a defendant's Sixth Amendment right and deprive a defendant of...