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.