Conflicts of interest remain one of the most frequently alleged legal malpractice errors, and criminal defense attorneys are not immune from such claims. While conflicts can arise in a myriad of different scenarios in the criminal law context, joint representation of co-defendants is one area ripe for a conflict claim. What’s more, criminal lawyers are also uniquely susceptible to an ineffective assistance claim related to a purported conflict of interest.

Joint representation is not a per se violation of the constitutional guarantee of effective assistance of counsel. As the United States Supreme Court has explained:

This principle recognizes that in some cases multiple defendants can appropriately be represented by one attorney; indeed, in some cases, certain advantages might accrue from joint representation….Joint representation is a means of insuring against reciprocal recrimination. A common defense often givens strength against a common attack.

As you may have encountered in your practice, speaking on behalf of several co-defendants in a single voice can effectively hinder the prosecutor’s ability to pit different defendants against each other. However, a conflict of interest may arise if you are prevented from acting in the best interest of one or more of your clients which could lead a client to assert an ineffective assistance claim.   

To bring a successful claim for ineffective assistance of counsel, the defendant who did not object to joint representation at trial must demonstrate that an actual conflict of interest affected their lawyer’s performance. Once the defendant demonstrates the actual conflict and the adverse effect on their lawyer’s performance, the prejudice prong of an ineffective assistance claim is presumed.

Given the potential risk of a conflict of interest becoming a full-blown ineffective assistance claim, consider these tips before jointly representing co-defendants:

• Analyze the facts – When considering whether to represent multiple co-defendants, thoroughly analyze the facts of the case to determine whether an actual or potential conflict exists. You should also evaluate the relationships among the parties to determine whether you can act in their best interest as if you represented them individually.
• Obtain written consent – It is crucial that you secure written informed consent from all clients if no conflict prevents you from representing all parties. Provide a detailed explanation of the risks of joint representation to support the conflict of interest waiver.
• Use a comprehensive engagement letter – In the context of joint representation, your form engagement letter will not suffice. Make sure you clearly identify the facts known at the outset of the case, state that no known conflict exists, explain your duty to continually monitor developments in the case for conflicts, advise of each client’s right to separate counsel, and describe how confidential information and the attorney-client privilege will be handled among the joint clients.

“Out of joint” can be defined as “dissatisfied, or having a feeling that one has been wronged or thwarted in one’s ambitions,” and, arguably, your client may base their malpractice claim on that feeling alone – regardless of whether it is warranted. If you do decide to represent multiple defendants in a single case, make sure you follow these best practices to avoid a claim (as you try to keep them out of the joint).