Understanding Joint Defense Agreements, Appearances and Representation

Joint Representation of Colorado Criminal Defendants

A Colorado Criminal Defense Lawyer almost never should not represent more than one defendant or target of an investigation in a single investigation or a prosecution of criminal charges.

Attorneys have an affirmative duty to remedy a conflict of interest should it arise during joint representation.

First, an attorney may withdraw from representing one or both clients.

Second, an attorney may require defendants to sign waivers, although a lawyer can obtain a waiver of a conflict in certain criminal cases – this is very rare.

The failure to remedy a conflict of interest may result in professional discipline or an action for malpractice on behalf of the defendants.

Defendants who are jointly represented by a single defense attorney may have a civil action against the attorney for professional malpractice if they can show they suffered damages and that the attorney violated professional standards. Finally, a defendant may have an appeal for ineffective assistance of counsel based on conflicts of interest.

Criminal defense lawyers who are considering joint representation of two or more co-defendants should take several steps to determine if a conflict exists:

Interview defendants separately in order to avoid accidental merger of defenses

Conduct proper investigation to determine if the theory of the case is the same for both defendants.

Lawyers have a strong financial incentive to accept cases involving joint representation because these cases often involve increased fees and lower administrative costs. Clients themselves may suggest joint representation both for the convenience and the cost savings.

In certain jurisdictions, the shortage of lawyers may also make joint representation more acceptable because this may be the only practical way for all criminal defendants to receive legal representation. Joint representation may also provide tactical advantages throughout the course of adjudication.

Before accepting joint representation counsel should determine whether the defendants’ interests are adverse to one another, which is often very difficult to predict. Problems may manifest when one defendant’s defense is inconsistent with his or her codefendant’s defense. For example, when only one defendant is truly responsible, the attorney may be faced with the problem of admitting testimony that would exonerate one defendant while incriminating the other.

A subtler problem is the appearance of guilt solely because the same counsel represents all defendants collectively. Further, issues involving confidentiality may arise, and the attorney’s independent professional judgment and loyalty may be compromised. Because of these problems, some legal scholars have advocated for an absolute ban on joint representation of clients in criminal and in civil cases.

• A Conflict of interest may arise as a result of trial tactics or testimony, during closing arguments, and during sentencing;
• Confidentiality Issues;
• Unfair outcome to one or both clients;
• One client may chose to accept a plea bargain;
• One client may be offered a plea bargain in exchange for testifying against the other client or other cooperation with the prosecution;
• Inability to challenge evidence prejudicial to one client, yet helpful to another;
• Inability to argue aggravating factors of other clients at sentencing or trial;
• One client’s confession may implicate the other client;
• Potential waste of time and resources if attorney must withdrawal late in the proceedings.

A conflict of interest may prevent an attorney from doing any one of the following plea bargaining for one defendant to testify against another; challenging admission of evidence prejudicial to one client but favorable to another; arguing differing culpabilities of clients in sentencing in order to minimize the culpability of one by emphasizing that of another

Attorneys have an affirmative duty to remedy a conflict of interest should it arise during joint representation. First, an attorney may withdraw from representing one or both clients. Second, an attorney may require defendants to sign waivers, although waivable conflicts in criminal cases would be very rare. Failure to remedy a conflict of interest may result in professional discipline or an action for malpractice on behalf of the defendants.

Defendants who are jointly represented by a single defense attorney may have a civil action against the attorney for professional malpractice if they can show they suffered damages and that the attorney violated professional standards. Finally, a defendant may have an appeal for ineffective assistance of counsel based on conflicts of interest.

Joint representation of co-defendants is generally prohibited by Legal Aid and Public Defender Offices in the United States because of the potential conflicts that may arise during the case. This prohibition applies to all lawyers in the office. As a result, outside counsel must be appointed to represent a co-defendant.

Criminal defense lawyers who are considering joint representation of two or more co-defendants should take several steps to determine if a conflict exists:

• Interview defendants separately in order to avoid accidental merger of defenses.
• Conduct proper investigation to determine if the theory of the case is the same for both defendants.

Unlike in civil cases, liability in criminal cases is nearly always individual, not joint and several. Therefore, much of effective criminal defense consists of assigning blame to others. Joint representation limits counsel’s ability to employ that tactic.

The exceptions are usually at the pre-charging stage or early phases of a prosecution [see Standard 4-3.5(c)] or where there is a familial or business relationship among the clients, such as among spouses, siblings, and small business corporations and their sole owners.

A Colorado Criminal Defense Lawyer may represent co-defendants at the initial appearance or bail hearings. [ABA Standards for the Defense Function §4-3.5.] However, if they do, the lawyer must avoid eliciting confidential communications from the clients because having such confidential information may later lead to your disqualification from representing either defendant.

Investigating and clearing such potential conflicts may provide an opportunity to mine the prosecutor or investigating officer for information about the case. The criminal defense lawyer must determine if the potential client is a target of the investigation, a subject (or possible target), or a pure witness.

While the more prudent course may seem to be to retain separate counsel for each individual involved in a criminal investigation, costs may dictate otherwise. A single person or entity, such as the head of household or the firm owner, may be paying all counsel.

The lawyer may represent several witnesses in a single investigation or prosecution as long as none are targets of the investigation, and they do not accuse each other of criminal wrongdoing.

If the lawyer undertakes the representation of several witnesses or defendants in the same matter, the lawyer must meet the prerequisites of Rule 1.7(b) of the Model Rules of Professional Conduct:

• The lawyer must reasonably believe that the representation of each will not be adversely affected by the representation of another.
• The lawyer must advise each client of the advantages and risks of joint representation and obtain their explicit consent to the joint representation.

A joint defense agreement (“JDA”) is an agreement to share confidential information among counsel and their respective clients when they share a common legal position and interest.

This type of agreement may also be called an information sharing agreement (“ISA”) or a common interest agreement (“CIA”). Some lawyers feel that these terms describe the arrangement’s purpose more specifically and accurately and minimize subsequent attempts to disqualify attorneys if one defendant breaks rank and cooperates with the government.

With a joint defense agreement, each attorney retains his duty of loyalty solely to his client, but assumes an obligation to maintain the confidentiality of information obtained through the joint defense. By encouraging and protecting the voluntary exchange of information, the joint defense agreement facilitates the coordination of the defense and the pooling of resources.

The joint defense or common interest privilege protects the sharing of work product among the parties as well as attorney-client communications.

However, a joint defense agreement does not forbid defendants from later turning on each other, nor from using against each other information obtained outside the joint defense arrangement. [See Restatement (Third) of the Law Governing Lawyers, §69, Comment d.]

Joint defense agreements can be oral or written, however, if the information sharing will be more than sporadic, it is best to commit the agreement to writing to withstand any later attempts by the prosecution to pierce the privilege.

The privilege’s claimant has the burden of proving its existence, and memories might differ as to when the interests were common and when they diverged.

A joint defense agreement does not prohibit a defendant from testifying to facts he knew before he entered the joint defense. If the agreement is written, draft it carefully so that counsel will not be disqualified if his client leaves the joint defense agreement and offers to testify against the other defendants.

If the agreement is oral, specify in your notes of each meeting that the discussion occurred under an oral joint defense agreement.

Although joint defense agreements are legal and ethical, prosecutors tend to view them as conspiracies to obstruct justice. While it disavows such a judgment in its latest version of the “Principles of Federal Prosecution of Business Organizations,” the Department of Justice warns, in a section entitled “Obstructing the Investigation,” that joint defense agreements may prevent a corporation from receiving credit for cooperating with an investigation by impeding its ability to share information with the government. [USAM 9-28.730.]

The Criminal Defense lawyer should consider a joint defense agreement when the defendants share a consistent defense. For example, in a fraud or regulatory prosecution, the defendants may deny that any crime took place, or, in a conspiracy case, they may all share an interest in attacking the government’s cooperating witnesses where those witnesses implicate all defendants.

By coordinating efforts and resources, defendants can allocate tasks without duplication, save time and money and avoid inadvertently harming each other. Access to other defendants’ information may not only strengthen the defense, but it may educate the defense as to the strengths of the prosecution’s case, perhaps persuading the defense that a negotiated plea is the wiser course.

Joint defense agreements generally benefit most the more culpable defendants. The agreement enables those defendants to learn what the lesser defendants, the ones the government is likely to approach as possible cooperating witnesses, have to say, and it tips off the more culpable when the less culpable begin to cooperate.