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