Friday, March 30, 2018

The Potential Conflict of Interest in Shared Representation

Multiple defendants

We have represented hundreds of people over the years. Most of time it is an easy decision to represent just one person, and to have that person’s interests foremost in mind. But sometimes we are asked to represent a husband and a wife or multiple people involved in a crime. 

Is there a conflict if they are related? Is there a conflict if a defense can make one guilty and one innocent? Is there a conflict when one person could be more guilty than another?

Can a lawyer represent more than one person if more than one person was involved with a crime?

Dual Representation Is Always a Balancing of Interests

Judges want people to be able to pick who they want to represent them. It’s a constitutional right to select your lawyer. But judges also want that lawyer to be effective.

Can both things survive if the representation of the parties involves a conflict of interest? In People v Gomberg, 38 N.Y.2d 307 (1975) the judge had such a balancing decision.

Gomberg and others were charged with burning down competing massage parlors. These other massage parlors were alleged to be undercutting their prices on services.

Could all the co-defendants including Gomberg be represented by the same lawyer?

Three defendants went to trial, one was acquitted of the charges and the other two were found guilty of arson. 

In reaching a resolution of the issue of effective assistance of counsel, it is necessary to carefully balance two conflicting considerations flowing from the same constitutional protection. The right of an accused in a criminal proceeding to the assistance of counsel is guaranteed by the Federal and State Constitutions, as well as by State statute. (US Const, 6th Amdt; NY Const, art I, § 6; CPL 210.15, subd 2.) This constitutional right may be substantially impaired if one lawyer simultaneously represents the conflicting interests of a number of defendants. (Glasser v United States, 315 U.S. 60, 70.) However, the joint representation of defendants is not per se a denial of the effective assistance of counsel. (People v Gonzalez, 30 N.Y.2d 28, 34, cert den 409 U.S. 859.) A conflict exists only when the individual defenses "run afoul of each other". (People v Gonzalez, supra, at p 34.) Yet, once a conflict is clearly established, the courts will not enter into "nice calculations" as to the amount of prejudice resulting from the conflict. (Glasser v United States, supra, at p 76.)
This constitutional right is balanced with the other right to be EFFECTIVELY represented.

Since the right to effective assistance of counsel and the right to retain counsel of one's choice may clash when a retained attorney is involved in an apparent conflict of interest, a Trial Judge has a duty to protect the right of an accused to effective assistance of counsel.

Gomberg went on to explain that as long as the parties KNEW their was the potential for a conflict of interest, they were not in the dark that they could waive it.

The court should also recognize that a defendant may not always perceive the existence of a conflict of interest in the joint representation by an attorney. Consequently, the court should be satisfied, where there is joint representation, that the defendant's decision to proceed with his attorney is an informed decision.
In Gomberg the judge made just such an inquiry of all the parties BEFORE they had a trial. On appeal Gomberg was affirmed as the right thing to do. All the defendants (all three) had an opportunity to change attorneys or proceed with the same attorney. By their own choice they chose to have the same attorney and even though that attorney's defense worked for one (acquittal), and not for    the other two (guilty) they had effective assistance of counsel.

Gomberg stands for forewarning people but also allowing them to make their own decisions as to conflicts of dual or in Gomberg’s case triple representation.