Can an Attorney Represent Co-defendants? United States Supreme Court May Decide.

In many states, it is legal for two co-defendants in a crime to retain the same attorney. However, this is not the ideal situation because it is ripe for conflicts of interest. Co-defendants in a criminal case likely have information about the other defendant that can be detrimental to their case and will oftentimes “flip” on their codefendant. It can be difficult for an attorney to represent both codefendants competently and diligently as required. The American Bar Association advises against representing co-defendants, but there is no general law forbidding it. The Supreme Court could change this. The case of Holcombe v. Florida is pending before the Supreme Court and asks the Court whether an “actual” conflict of interest that adversely affects counsel’s representation when the attorney engages in “joint and dual” representation – i.e., simultaneously representing both the defendant and a key prosecution witness during a trial. 

What happened in Holcombe v. Florida?

The defendant was convicted of RICO and conspiracy to commit RICO at a jury trial. The record establishes that after the defendant was charged in this case, the defendant’s attorney also agreed to represent two co-defendants, Hooper and Angell. During a pretrial hearing, the trial court addressed all three defendants and questioned them about the potential conflict of interest in having the same attorney. However, the trial court never advised the defendants of their right to retain separate attorneys. 

After the defendant was convicted at trial, he appealed based on a conflict of interest. However, the appellate court rejected the defendant’s argument regarding the conflict of interest concluding that the simultaneous representation does not without more, constitute an actual conflict for Sixth Amendment purposes. 

An actual conflict of interest can create the basis for an ineffective assistance of counsel claim. However, the Supreme Court has held that representing multiple co-defendants is not a per se violation, the trial court has a duty to inquire into a potential joint representation conflict of interest. However, the Court has held that there is no automatic reversal of the conviction when the defendant does not raise the conflict of interest prior to trial. 

The multiple representation conflict rule can now be described with the following:

“First, if the defendant objects to the alleged conflict prior to trial, prejudice is presumed if the trial court failed to inquire into the nature and scope of the conflict and required the defendant to proceed with the same attorney. In such instances, reversal is automatic. See Holloway, 435 U.S. at 484; Selsor v. Kaiser, 81 F.3d 1492, 1500, 1504, 1506 (10th Cir. 1996) (applying Holloway and holding automatic reversal was warranted because the district court did not inquire into the timely objection to the multiple representation). But if the defendant does not object to the alleged conflict at trial, he must demonstrate on appeal that an actual conflict adversely affected his representation. Only if the defendant’s demonstration is sufficient is prejudice presumed. See Cuyler, 446 U.S. at 348- 349; see also Alvarez, 137 F.3d at 1251. In this context, the defendant has the burden to show specific facts to support his allegation of an actual conflict adverse to his interests. If the defendant’s demonstration is insufficient, then traditional Strickland review will apply: the defendant must establish his counsel performed deficiently and that performance affected the outcome of trial. Strickland, 466 U.S. at 687-688, 694.”

Courts in this country are split as to whether an attorney can represent a criminal defendant when he also represents a key prosecution witness during a trial. For example, under New York law, an actual conflict of interest existed when an attorney represented both a defendant and a man that raped the defendant’s daughter, a witness. 

The Supreme Court may decide this case next term. This issue should be resolved because defendants who are not familiar with the criminal justice system may not understand why having a lawyer represent both him and the codefendant is a bad idea. 

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