Can one lawyer represent two co-defendants on a criminal appeal when their interests conflict, if both waive the conflict?

Plain-English summary

The Committee was asked whether an attorney in the public practice of law may continue to represent two defendants in a criminal appeal where there is a substantial potential conflict between them. On the facts, full and vigorous representation of one co-defendant would necessarily, at least inferentially, impugn the other's testimony and shift criminal responsibility from the two jointly to one of them exclusively. The Committee was asked to assume the attorney had fully and candidly explained the potential conflict and that both co-defendants wished to waive it and continue with a single attorney.

The opinion distinguished United States v. Armedo-Sarmiento (2d Cir. 1975), which held that a defendant's Sixth Amendment right to assistance of counsel could override conflict considerations and allow the accused to choose counsel despite a conflict; the question here was instead whether the attorney should accept the employment, which implicates the attorney's obligations to the profession and the adversary system, not only to the accused. Relying on EC 5-15 (a lawyer should resolve all doubts against the propriety of representing multiple clients with potentially differing interests and should never represent in litigation multiple clients with differing interests), the opinion concluded the facts showed a very strong potential for differing interests, so the attorney may not continue to represent both defendants.

The opinion explained that the co-defendants' waiver does not cure the conflict. Under EC 5-16, client consent matters only in those instances in which a lawyer is justified in representing multiple clients with differing interests; the threshold question is whether multiple representation is ethically permissible at all. Here that threshold question was answered negatively, so the question of the clients' consent never arose, and the consent did not cure the taint created by the conflicting interests.

Currency note

This opinion was issued in 1976, before the Alaska Bar Association's adoption of the Alaska Rules of Professional Conduct (it applies the former Code of Professional Responsibility) and before the 2009 revisions to those rules. The rules on concurrent conflicts and waiver have since been recodified. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Common questions

Q: Can one lawyer represent two co-defendants whose interests conflict on appeal?

A: The opinion concluded a single attorney may not continue to represent both where vigorous representation of one would impugn the other's testimony and shift criminal responsibility.

Q: Does it help if both defendants waive the conflict?

A: No. The opinion concluded the waiver does not cure the conflict, because this is not a situation in which joint representation is permissible, so consent never comes into play.

Q: How should a lawyer approach a multiple-representation question?

A: The opinion described a threshold question, whether joint representation is ethically permissible at all; only if that is answered affirmatively does the lawyer reach the step of explaining the conflict and obtaining consent.

Background and rules framework

The opinion applied the former Code's multiple-client conflict provisions (EC 5-15 and EC 5-16), the subject now treated by Model Rule 1.7 (concurrent conflicts of interest), distinguishing the threshold question of whether joint representation is permissible from the separate requirement of informed client consent.

Citations and references

Rules of Professional Conduct (former Code; cf. Model Rules):

• EC 5-15, EC 5-16 (representing multiple clients with differing interests; consent) (cf. Model Rule 1.7)

Cases:

• United States v. Armedo-Sarmiento (2d Cir. 1975), Sixth Amendment right to counsel of choice (distinguished)

See also

• Alaska Ethics Op. 2021-1: Multiple Criminal Defendants Conflict
• Alaska Ethics Op. 89-1: Concurrent Representation of Adverse Clients
• Alaska Ethics Op. 85-3: Firm Calling a Former Associate as a Witness

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/76-3.pdf

Original opinion text

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

Ethics Opinion No. 76-3
Propriety of an Attorney in the Public Practice of Law Continuing to
Represent Two Defendants in a Criminal Appeal in Which there is a
Substantial Potential Conflict of Interest Between the Two Defendants.
The Committee has been asked whether or not an attorney in the public
practice of law may continue to represent two defendants in a criminal appeal
in which there is a substantial potential conflict of interest between the two
defendants. From the facts presented to us, it is our understanding that a full
and vigorous representation of the interests of one of the co-defendants would
necessarily, at least inferentially, involve impuning the other co-defendants'
testimony, and would further involve casting criminal responsibility from the
codefendants jointly to one of the codefendants exclusively. We have also been
asked to assume for purposes of the question that both of the co-defendants
have had this potential conflict fully, fairly and candidly explained to them, by
the attorney, and that after that explanation they desired to waive any conflict
of interest and continue with the representation of a single attorney.
In this connection, we are referred to the case United States v. AmredoSarmiento, decided by the Second Circuit October 10, 1975. After reviewing the
text of that opinion, we do not consider it on point. That opinion held that the
Sixth Amendment right to assistance of counsel, when raised by a defendant in
a criminal appeal, overbore the conflict of interest considerations involved in
that case, and allowed the accused to make a selection of counsel of his choice
despite that conflict. The question for our consideration, however, is whether or
not the attorney so chosen should accept the proffered employment. As such,
we deal with the obligations of the attorney not only to the accused, but also to
the profession and the adversary system of justice.
In the Committee's opinion, the two defendants in the situation
presented, may not continue to be represented by a single attorney.
This opinion is based in large part on EC 5-15, which provides in part:
If a lawyer is requested to undertake or to continue representation of multiple
clients having potentially differing interests, he must weigh carefully the
possibility that his judgment may be impaired or his loyalty divided if he accepts
or continues the employment. He should resolve all doubts against the propriety
of the representation. A lawyer should never represent in litigation multiple
clients with differing interests; and there are few situations in which he would be
justified in representing in litigation multiple clients with potentially differing
interests.
In the Committee's view, the facts presented indicate a very strong
potential for differing interests between multiple clients, if not actually differing
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interest at this time. It is therefore the Committee's opinion, as previously
expressed, that the attorney may not continue to represent both defendants.
The waiver of this conflict by the co-defendants does not cure the
conflict. EC 516 provides:
In those instances in which a lawyer is justified in representing two or more
clients having differing interests, it is nevertheless essential that each client be
given the opportunity to evaluate his need for representation free of any potential
conflict and to obtain other counsel if he so desires. Thus, before a lawyer may
represent multiple clients, he should explain fully to each client the implications
of the common representation and should accept or continue employment only if
the clients consent.
It is our opinion that this is not an "instance in which a lawyer is
justified in representing two or more clients," and therefore the clients' consent
does not cure the taint created by the conflicting or potentially conflicting
interests of the co-defendants. There is an initial threshold question which
must be answered by the attorney representing multiple clients in litigation,
which is whether or not, under the particular facts and circumstances of the
case, he would be ethically permitted to continue the multiple representation. If
that question is answered affirmatively, the attorney still has an obligation to
explain the potential conflict to each of, the multiple clients, and after such
explanation, secure the clients consent to such continued multiple
representation. In the case before the Committee the threshold question is
answered negatively, and therefore the question of the clients consent never
arises.
Approved by Board of Governors on June 1, 1976.
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