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White Collar Defense & Compliance Developments in Criminal Law, Federal Case Law and Statutory Developments

Third Circuit Reminds That In Criminal Cases A Joint Representation Conflict Of Interest Is Not Avoided Simply Because The Clients Consent And Waive Any Conflict

Posted in Trial tactics

Alain Leibman writes:

Generally, governing ethics rules permit joint representation under circumstances where, at minimum, the affected clients have full knowledge of the potential for conflict of interest and knowingly waive any such conflict. Thus, it is not rare in civil litigation for one attorney to represent multiple parties or for attorneys from the same firm to jointly represent multiple parties, as long as appropriate disclosure, consent, and waiver has been put in place. It is quite a different matter in criminal cases, though. While the Sixth Amendment does assure a defendant the right to counsel, both Supreme Court precedent and the Federal Rules of Criminal Procedure require district courts to engage in a searching examination of the potential for conflict and of the particular dangers which joint representation poses for the integrity and fairness of the proceedings.

Under Fed. R. Crim. P. 44(c), a court is required to make inquiry in cases of joint representation, regardless of the expressed wishes of the defendants themselves. The Rule establishes a rebuttable presumption that joint representation is inappropriate; it provides that "[u]nless there is good cause to believe that no conflict is likely to arise," the court must take "appropriate measures" to preserve each defendant’s right to counsel. In the Supreme Court case of Wheat v. United States, 486 U.S. 153 (1988), the Court held that an individual defendant’s right to counsel of choice may be overcome merely by a showing of a "serious potential for conflict."

A recent illustration of the point is presented in United States v. Self, 681 F.3d 190 (3rd Cir. 2012), in which two brothers initially retained counsel from the same, small law firm. All disclosures and waivers necessary to meet the governing ethics rule were in place. After being questioned by the district court, the lawyer for one of the brothers had a change of heart and moved to withdraw from the case, agreeing that no ethical screen could practically be established to avoid a conflict between the two brothers and their partnered lawyers. After the first attorney was allowed to withdraw, the court turned its attention to the second attorney. While the second attorney insisted that his representation of the second brother would be unfettered by his firm’s former representation of the first, he had during the joint representation period curiously changed positions on an important scheduling issue involving the timing of the trial; after indicating to the court that the second brother wanted to go to trial immediately, attorney number two then told the court that he had no objection to a continuance requested by his partner, attorney number one, for the first brother.

This flip-flop on the timing of the trial led to the second attorney’s being involuntarily disqualified by the district court, and led the Third Circuit to uphold the ruling. Citing Wheat’s concern with the "special dangers" presented by joint representation in a criminal case, the Court of Appeals found no abuse of discretion in the disqualification of the second attorney since there remained a serious potential conflict by virtue of his loyalty to the firm’s former client, the first brother. The court’s opinion relied heavily on the "puzzling decision" to first insist on proceeding to trial and then failing to oppose a motion to continue the trial when that motion was brought by the partner-attorney for the first brother.

(Alain Leibman, Esq., the author of this entry and a co-author of this blog, is a partner with Fox Rothschild LLP, based in our Princeton, NJ office. A former decorated federal prosecutor, he practices both criminal defense and commercial litigation in federal and state courts)