The Sixth Circuit recently cast significant doubt on the ability of an attorney to represent two of more defendants in a criminal case. The Model Rules of Professional Conduct generally prohibit dual representation if the defense of one defendant will impair the defense of another. But the Model Rules permit dual representation if four factors are met:
- the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
- the representation is not prohibited by law;
- the representation does not involve 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; and
- each affected client gives informed consent, confirmed in writing.
Model Rules of Prof’l Conduct R. 1.7 (2009). In United States v. McCoy, the representation appeared to meet each of the four factors and the defendants provided their written consent to the district court.
But in criminal proceedings, the court has an independent obligation to preserve the integrity of the case (as reflected in Rule 44 of the Federal Rules of Criminal Procedure). The district court held a hearing to determine whether the representation was appropriate. Before the hearing, the court appointed independent counsel to each defendant to advise the defendants as to the possible consequences of the waiver. Even after being so advised, both defendants requested the court to permit the joint representation.
The district court denied the request. Primarily, the court relied on two grounds to disqualify the defendants’ choice of attorney. First, the Government had offered a plea agreement to one defendant that required (as part of the deal) cooperation against the other (defendants strongly argued that the offer was a ploy to create a conflict where none actually existed). Second, there existed a substantial probability that the attorneys would face a conflict at trial or at sentencing because it might be advantageous for one defendant to argue that he was less culpable than his co-defendant (though defendants noted on appeal that this did not actually occur). The United States Court of Appeals for the Sixth Circuit found that the district court’s decision was well-within its discretion.
The case highlights the problems inherent in dual representation scenarios in criminal cases. It is practically an invitation for court scrutiny. But there are alternatives (e.g., joint defense agreements) that may offer similar benefits without the potential for ethical dilemmas and court intervention.
The case may be found at United States v. McCoy, 10-6099, 2012 U.S. App. LEXIS 9454 (6th Cir. May 8, 2012).