Can one lawyer represent two criminal co-defendants charged in the same case in Alaska?

Plain-English summary

The opinion holds that ARPC 1.7(a) prohibits representing multiple parties when doing so creates a concurrent conflict of interest, and it calls representation of multiple parties in the same criminal matter "a classic example" of such a conflict because there is always a significant risk that representing one client will be limited by the lawyer's responsibilities to the other. Citing the rule's commentary that "ordinarily a lawyer should decline to represent more than one codefendant," the opinion concludes that lawyers should ordinarily avoid concurrent representation of criminal co-defendants once informed consent becomes necessary.

The opinion catalogs the ways co-defendants' interests can diverge: disparate degrees of charged conduct, a favorable plea for one that requires testimony against the other, defense strategies that favor one and preclude another, adverse testimony, sentencing arguments about relative culpability, and differing speed-to-trial preferences. It applies this to two hypotheticals, concluding joint representation is impermissible for two defendants charged with stealing the same vehicle (their statements are inculpatory as to one and exculpatory as to the other), and is likely prohibited but conceivably waivable in a very narrow set of circumstances for two commercial fishers with differing roles.

Where representation is possible, ARPC 1.7(b) requires informed consent confirmed in writing, and the opinion details what must be explained: that no joint client may be favored, that information must be shared and may be used by one client against another if adversity develops, that consent may be revoked at any time, and that divergence or withdrawal by one client requires the lawyer and firm to withdraw from all. The opinion also notes the court's independent duty under Moreau v. State to ensure each defendant knowingly waives the right to conflict-free counsel, and that Alaska law (Jacobus v. Kalenka) requires a lawyer to forgo fees earned after a conflict becomes clear.

In practice

Under this opinion, conduct that undertakes the joint representation of criminal co-defendants is permitted only where the lawyer can reasonably conclude that competent and diligent representation can be provided to each client and obtains each client's informed consent confirmed in writing; in the vast majority of cases the opinion holds the representation should be declined. The opinion adds that the lawyer must raise the conflict with the court at the earliest opportunity and must explain that the court may reject a waiver and require separate counsel despite the clients' wishes.

Common questions

Q: Can one lawyer represent two people charged in the same crime?

A: Only rarely. The opinion holds this is a concurrent conflict that should ordinarily be declined, permitted under ARPC 1.7(b) only if the lawyer reasonably believes competent and diligent representation can be given to each client and all clients give informed consent confirmed in writing.

Q: What must the lawyer explain to get a valid conflict waiver?

A: The opinion requires explaining that no client may be favored, that shared information may be used by one client against the other if adversity develops, that consent may be revoked at any time, and that later divergence forces the lawyer and firm to withdraw from representing all of the clients.

Q: Can the judge refuse to let the defendants waive the conflict?

A: Yes. The opinion notes, citing Moreau v. State and Wheat v. United States, that the court must make an independent inquiry and may require separate counsel despite the defendants' wishes.

Q: What happens to the lawyer's fees if the conflict becomes clear?

A: The opinion states that Alaska law requires a lawyer to forgo any fees earned after a conflict of interest becomes clear, citing Jacobus, P.C. v. Kalenka.

Background and rules framework

The opinion interprets ARPC 1.7 (conflicts of interest among current clients), with the waiver mechanics drawn from ARPC 1.7(b) and the definitions of "informed consent" and "confirmed in writing" in ARPC 9.1(g) and (c). It also invokes ARPC 1.1 (competence), including preparing clients to answer the court's waiver inquiries, and ARPC 3.2 (expediting litigation) and ARPC 1.7(c) (diligence in determining whether a conflict exists) as reasons to raise the conflict early. The opinion supplements the rules with the ABA Standards for Criminal Justice (2015), Standard 4-1.7(d), and with Sixth Amendment case law including Holloway v. Arkansas and Wheat v. United States.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 / ARPC 1.7 (concurrent conflicts of interest; written informed consent)
• Model Rule 1.1 / ARPC 1.1 (competence)
• Model Rule 3.2 / ARPC 3.2 (expediting litigation)

Cases:

• Holloway v. Arkansas, 435 U.S. 475 (1978), conflicts in joint criminal representation
• Wheat v. United States, 486 U.S. 153 (1988), court may refuse a waiver of separate counsel
• Moreau v. State, 588 P.2d 275 (Alaska 1978), trial court's duty to advise co-defendants
• Jacobus, P.C. v. Kalenka, 464 P.3d 1231 (Alaska 2020), no fee after a conflict becomes clear

Other opinions cited:

• ABA Formal Ethics Op. 05-436 (2005): advance waivers of future conflicts

See also

• ABA Formal Op. 08-450: Confidentiality, Multiple Clients
• ABA Formal Op. 06-438: Aggregate Settlement Disclosures

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/2021-1corr.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

ALASKA BAR ETHICS OPINION 2021-1
Representation of Multiple Clients Charged in Criminal Cases
ISSUE:
Under what circumstances, if any, may an attorney ethically
represent multiple clients who have been charged with criminal offenses arising
out of the same set of facts?1
CONCLUSION:
ARPC 1.7(a) prohibits a lawyer from representing
multiple parties when doing so creates a concurrent conflict of interest.
Representation of multiple parties in the same criminal matter is a classic
example of a concurrent conflict of interest because there is always a
significant risk that the representation of one client will be limited by the
lawyer's responsibilities to the other client.
However, ARPC 1.7(b) allows in certain, rare situations for concurrent
representation when the precise requirements of the rule are met. Specifically,
the lawyer must reasonably believe competent and diligent representation can
be provided and all the affected clients give informed consent, confirmed in
writing.
Because of the significant consequences often attendant to a criminal
conviction and a criminal defendant's Constitutional right to effective
representation of counsel under the Sixth Amendment to the United States
Constitution and Article 1, Section 11 of the Alaska Constitution, the
requirements for obtaining informed consent to multiple representation are
particularly stringent when multiple clients are charged with crimes arising out
of the same set of facts. Accordingly, lawyers should ordinarily avoid
concurrent representation of criminal defendants in a case when informed
consent of the clients becomes necessary.
The Committee has been presented with two sets of facts relating
to the ethical considerations in representing multiple clients who have been
charged with criminal offenses arising out of the same set of facts.
1.
Defendant A and Defendant B have been charged with theft of the
same vehicle, which belongs to Defendant A's employer. Both defendants
originally told the police that Defendant A was the only person who drove the
vehicle. They now maintain that no crime was committed because, although
both of them drove the vehicle, Defendant A had permission to use the vehicle
1 This opinion deals only with the situation in which multiple clients have been charged

with crimes. It does not deal with matters in the investigative stages of criminal matters in
which no charges have yet been filed.
1

and he gave Defendant B permission to drive the vehicle as well. The
Committee concludes that concurrent representation of Defendants A and B is
impermissible because a lawyer could not reasonably believe that competent
representation could be provided to each client given the multiple ways their
interests could diverge.
2.
Two commercial fishers were charged with fishing in closed waters
and falsely identifying where they caught the fish. Each has a permit for one of
the species of fish they caught; one of the defendants is the boat owner and the
other is a crewman. Here, the Committee concludes that concurrent
representation of the fishers is likely prohibited, again because of the number
of ways their interests could diverge; however in a very narrow set of
circumstances concurrent representation could be possible with informed
written consent of both clients.
RULES:

ARPC 1.7(a), (b) and (c); 9.1(g) and (c); 1.1; and 3.2
ANALYSIS:

ARPC 1.7(a) prohibits a lawyer from representing multiple parties when
there is a concurrent conflict of interest among them. 2 In criminal cases the
prohibition against concurrent representation is particularly important: "The
potential for conflict of interest in representing multiple defendants in a
criminal case is so grave that ordinarily a lawyer should decline to represent
more than one codefendant."3
Issues that may be unique to concurrent representation in criminal
matters, or at least more consequential than in civil matters, might include:
A. the defendants may be charged with disparate degrees of criminal
activity;
B. one client may be offered a favorable plea agreement that may require
testimony against the other;
C. a defense strategy that favors one client may preclude a theory that is
more favorable to the other;
D. the defendants or their witnesses may testify unfavorably to each other;
2 (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the

representation involves a concurrent conflict of interest. A concurrent conflict of interest
exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be
materially limited by the lawyer’s responsibilities to another client, a former client, or a
third person or by a personal interest of the lawyer.
3 Comment to ARPC 1.7.
2

E. counsel's arguments suggesting a minor role for one client may
highlight a larger role for the other;
F. a legal argument for one client may be harmful to the other;
G. sentencing arguments may emphasize relative culpability to the
detriment of one of the clients.
Additionally, questions of timing may play a role: one defendant may wish a
speedy trial, while another may find delay better serves his or her interests.
The allocation of funds and time between defendants may also create readily
apparent conflict issues.
Nevertheless, ARPC 1.7(b) allows for concurrent representations in rare
cases when certain requirements are met, including whether the lawyer
reasonably believes competent and diligent representation can be provided and
the affected clients all give informed consent, confirmed in writing. 4 The terms
"informed consent" and "confirmed in writing" are defined in ARPC 9.1 (g) 5 and
(c).6
When is a concurrent representation conflict not waivable in a criminal
matter?
ARPC 1.7(b) allows a lawyer to represent multiple parties with concurrent
conflicts only when "the lawyer reasonably believes that the lawyer will be able
to provide competent and diligent representation to each affected client." The
Comment provides guidance on this issue:

4 (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a),

a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent
and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve 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; and
(4) each affected client gives informed consent, confirmed in writing.
5 ARPC 9.1(g) provides: “Informed consent” denotes the agreement by a person to a
proposed course of conduct after the lawyer has adequately explained the material risks of,
and the reasonably available alternatives to, the proposed course of conduct.
6 ARPC 9.1(c) provides: “Confirmed in writing”, when used in reference to the informed
consent of a person, denotes informed consent that is given in writing by that person or a
writing that a lawyer promptly transmits to the person confirming an oral informed
consent. See paragraph (g) for the definition of “informed consent”. If it is not feasible to
obtain or transmit the writing at the time the person gives informed consent, then the
lawyer must obtain or transmit it within a reasonable time thereafter.
3

The critical questions are the likelihood that a difference in
interests will eventuate and, if it does, whether it will
materially interfere with the lawyer’s independent
professional judgment in considering alternatives or
foreclose courses of action that reasonably should be
pursued on behalf of the client.
The ABA Standards for Criminal Justice (2015) supply additional
guidance for assessing conflicts in criminal matters. Standard 4-1.7(d) states
that, except to secure counsel for certain preliminary matters, "defense counsel
(or multiple counsel associated in practice) should not undertake to represent
more than one client in the same criminal case."
Nonetheless, the Standards allow for concurrent representation in
certain very limited circumstances. Standard 4-1.7(d) provides that concurrent
representation should be accepted only when it is clear either that no conflict is
likely to develop at any stage of the matter or that concurrent representation
will be advantageous to each client and foreseeable conflicts will be waived.
Thus, while in the vast majority of cases concurrent representation is
impermissible, it is possible for a lawyer to undertake such representation in
rare circumstances depending on the balance between the potential advantages
and the myriad disadvantages according to the facts presented in a particular
case. The advantages of multiple representation may include the financial
(shared attorney's fees and other costs) and the strategic ("[a] common defense
often gives strength against a common attack" 7). Nonetheless, ARPC Rule
1.7(a) and its Commentary, and the ABA Standards, make clear that it is only
in the truly exceptional case that a lawyer can reasonably conclude that the
advantages of multiple representation outweigh the disadvantages to such a
degree that a lawyer can provide competent and diligent representation to each
client.
In making the decision whether to undertake concurrent representation,
the lawyer should also consider whether such an arrangement might evolve
into a conflict under ARPC 1.7(a)(2) in which a lawyer's personal interests in
collecting fees might conflict with a client's right to separate representation.
Specifically, Alaska law requires a lawyer to forego any fees earned after a
conflict of interest becomes clear. 8

7 Holloway v. Arkansas, 435 U.S. 475, 482-83 (1978).

8 See Jacobus, P.C. v Kalenka, 464 P. 3d 1231, 1240 (Alaska 2020) (Lawyer not entitled to

any fee, including under a "reasonable value" test, after a conflict of interest becomes
clear.)
4

In sum, in the vast majority of cases, concurrent representation should
be declined.
What are a lawyer's duties to the client in those cases in which the client
wishes to waive the conflict?
In the rare case in which a lawyer reasonably concludes competent and
diligent representation can be provided to multiple clients, ARCP 1.7(b)
requires the lawyer to obtain the informed consent in writing of all affected
clients.9 The Comment to ARPC 1.7 requires that the information provided to
obtain informed consent for concurrent representation "must include the
implications of the common representation, including possible effects on
loyalty, confidentiality and the attorney-client privilege and the advantages and
risks involved."
Thus, at a minimum, the lawyer must explain that: one joint client
cannot be favored over another; relevant information must be shared among all
joint clients; and such information, whatever the source, may be used by one
joint client against the other if adversity develops between them later (in other
words, the attorney-client privilege will not protect information shared with the
lawyer of a joint client from use by the other joint client at some time in the
pending case, or in any other proceeding); a client who has given consent to
joint representation may revoke it at any time for any reason; and if the
interests of any concurrent client diverges from another concurrent client later,
or a concurrent client chooses for any reason to withdraw from the
representation, the lawyer (and the lawyer's firm) will have to withdraw from
representing all of the clients in the matter and other counsel will have to be
obtained.10
Further, the lawyer must explain that the lawyer's duty to make
reasonable efforts to expedite litigation 11 and to act with reasonable diligence in
determining whether a conflict exists 12 requires the lawyer to bring the conflict
9 See notes 4, 5 and 6 supra.

10 It may be possible to deal with this by a prospective waiver, but this requires yet more

detailed consultation. See ABA Formal Ethics Op. 05-436 (2005) (stating that a lawyer may
obtain advance waiver from client allowing lawyer to represent unidentified future clients
with interests potentially adverse to existing client's interests; waiver more apt to be
enforceable if client is "experienced user of legal services" or independently represented in
connection with the waiver). The Committee takes no position on that issue in this
Opinion.
11 ARPC 3.2 provides: " A lawyer shall make reasonable efforts to expedite litigation

consistent with the interests of the client."
12 ARPC 1.7(c) provides: "A lawyer shall act with reasonable diligence in determining
whether a conflict of interest . . . exists.”
5

to the court's attention at the earliest opportunity if the issue has not been
raised by the court or opposing counsel. The lawyer must also explain that the
court may not accept a waiver and may require separate counsel despite a
defendant's wishes.13
Turning to the facts referred, in the first scenario - the car theft charges the Committee concludes that a lawyer could not reasonably believe a
concurrent conflict does not exist, nor could the lawyer reasonably conclude
the conflict could be waived. The interests of each of the defendants are
obviously potentially divergent. The clients have told the police that only one
defendant drove the car. That is clearly inculpatory as to one defendant and
exculpatory as to the other. If the new defense - permission of the owner, with
both defendants having driven the car - falters, the lawyer's ability to shift
defenses for the non-driver would be impaired by his duty of loyalty to the
alleged driver. That alone should be enough to prevent the lawyer from any
reasonable belief in the viability of a concurrent representation. The significant
ways in which their interests diverge outweighs any advantage that could be
achieved by concurrent representation.
The second scenario - the commercial fishers - supports an analysis
similar to the first: that joint representation is prohibited because the differing
roles and status of the defendants may well create a situation in which one
defendant would seek to minimize that client's ability to control the actions of
the vessel, or differing backgrounds could be used by one defendant to
emphasize that client's lack of culpable knowledge.
However, it is conceivable that in a very narrow set of circumstances the
advantages to each client may outweigh the disadvantages and the lawyer may
be able to reasonably conclude both clients will receive competent and diligent
representation. Important considerations could include, for instance, whether
both clients wish to mount a common defense, whether the costs of separate
representation would be beyond the means of one or both defendants (when
court-appointed counsel is not an option), whether the best available defense to
the charges is the same for both defendants and whether the relative
culpability of the defendants is similar. In this situation, it may be possible for
the lawyer to represent both individuals, but only with strict adherence to the
informed consent provisions under ARPC 1.7(b).
When the lawyer has concluded that concurrent representation is
possible, ARPC 1.7(b) requires the lawyer obtain the informed consent of each
client, which requires the lawyer to analyze the available facts and explain
13 See Wheat v United States, 486 U.S. 153 (1988) (recognizing the ability of the trial court

to refuse a waiver of separate counsel where there was a potential for a conflict); Daniels v.
State, 17 P.3d 75 (Alaska App. 2001).
6

risks of concurrent representation and alternative arrangements each client
could make for separate representation. In this case the issues that may
require specific detailed explanation might include: 1) the defendants' charges
could be amended to reflect disparate degrees of criminal activity; 2) one client
may be offered a favorable plea agreement that may require testimony against
the other; 3) as the facts are revealed in discovery, a defense strategy that
favors one client (such as reliance on the Fifth Amendment right not to testify)
may preclude a theory that is more favorable to the other (offering the client's
testimony on one or more issues); 4) the defendants or their witnesses may
testify unfavorably to each other; 5) counsel's arguments suggesting a minor
role for one client may highlight a larger role for the other; 6) a legal argument
for one client may be harmful to the other; 7) sentencing arguments may
emphasize relative culpability to the detriment of one of the clients; 8) the
possibility of delay may affect the clients differently; and 9) the lawyer's time
expenditures for costs may not be equally allocated between the clients'
particular issues, depending on the lawyer's judgment of the importance of the
issues.
It should be noted that when a single lawyer (or a law firm) appears in a
criminal case on behalf of two or more defendants, the court is obligated to
make an independent inquiry to ensure both defendants are prepared to make
knowing and intelligent waivers of their Sixth Amendment rights to competent
(conflict-free) counsel. In Moreau v. State,14 the Alaska Supreme Court adopted
a procedure to ensure that criminal defendants are aware of the pitfalls of joint
representation. In Hutchings v. State,15 the Alaska Court of Appeals elaborated
on the duties of the trial judge:
The [Moreau] court declared that trial judges should “address each
defendant personally and forthrightly advise [them] of the potential
dangers of [being represented] by counsel with a conflict of interest.
[Defendants] must be at liberty to question the court as to the
nature and consequences of [their choice of] representation....
[Generally], the court should seek to elicit a narrative response from
each defendant that [they have] been advised of [their] right to
effective representation, that [they] understand [ ] the details of
[their] attorney's possible conflict of interest and the potential perils
of such a conflict, that [they have] discussed the matter with [their]
attorney or ... with outside counsel, and that [they] voluntarily
waive[] [their right to separate counsel].” 16
14 588 P.2d 275, 284 (Alaska 1978).

15 53 P.3d 1132 (Alaska App. 2002).

16 Id. at 1134-35 (quoting Moreau, 588 P.2d at 284 n.27). See also Rule 44(c), Federal Rules

of Criminal Procedure:

7

In consulting with and advising clients on the issue of waiver, competent
representation under ARPC 1.117 would include preparing both clients to
respond to the court’s inquiries regarding waiver of their Sixth Amendment
rights to conflict-free counsel.

Approved by the Alaska Bar Association Ethics Committee on April 1, 2021.
Adopted by the Board of Governors on May 7, 2021.

The court must promptly inquire about the propriety of joint representation
and must personally advise each defendant of the right to the effective
assistance of counsel, including separate representation. Unless there is good
cause to believe that no conflict of interest is likely to arise, the court must
take appropriate measures to protect each defendant's right to counsel.

17 ARPC 1.1(a) provides: "(a) A lawyer shall provide competent representation to a client.

Competent representation requires the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation.”
8