Criminal justice degree requirement

INTRODUCTION

Joint representation of criminal codefendants may engender numerous problems throughout the course of a proceeding, some expected and others unanticipated. The dilemma presents itself most obviously when one defendant's defense is inconsistent with that of his codefendant:1 Should the attorney admit testimony that will exonerate one defendant while incriminating the other if only one defendant is truly responsible? Should the attorney encourage one codefendant to cooperate with the authorities in order to mitigate his sentence, although it may further inculpate the other codefendant?

Joint representation may also compromise effective advocacy in more subtle ways. For example, a group of defendants may appear guilty solely because the same legal counsel represents them collectively.2 When the stakes are high, as they often are in criminal matters, a defendant must rely on his representative's independent professional judgment and loyalty. The joint representation of criminal codefendants will almost always adversely affect the attorney's commitment to these objectives.3

problems inherent in the multiple representation of criminal codefendants.5

Furthermore, legal scholars have developed different sources to help guide conduct in this realm. The Restatement (Third) of the Law Governing Lawyers reviews the present rules and common law on the topic.6 Most states have adopted regulations on ethical conduct based on the American Bar Association's (ABA) Model Rules of Professional Conduct (Model Rules).7 Model Rule 1.7(b) provides:

(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:

(1) the lawyer reasonably believes the representation will not be adversely affected; and

(2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.8

retained counsel has been ineffective due to such a conflict, resulting in the reversals of convictions.10 However, by effectively entitling a defendant to waive the conflict and proceed with joint representation, Model Rule 1.7(b) is inherently flawed. It does not require the attorney, the supposed fiduciary to all client interests, to consider whether waiving the conflict is wise from the client's perspective; nor does it command, but merely suggests, that he deny his counsel to either client when he reasonably believes the representation will be adversely affected by the joint representation.11 Model Rule 1.7 may effectively distinguish an impermissible conflict from a permissible conflict.12 Its lack of prohibitive bite, however, may operate to allow the joint representation of criminal codefendants in a case where, although all parties involved - including the trial judge - would swear by its propriety, a debilitating conflict is lurking in the shadows.

A stronger and more pertinent restriction against the joint representation of criminal codefendants can be found in Section 4-3.5(c) of the ABA's Standards Relating to the Administration of Criminal Justice.13 However, great skill is needed to find more than a handful of decisions, or even legal periodicals, that have cited this standard, let alone those that have implemented it. Section 4-3.5 (c) provides:

(i) the several defendants give an informed consent to such multiple representation; and

(ii) the consent of the defendants is made a matter of judicial record.14

Section 4-3.5(c) does not promulgate a blanket prohibition on joint representation of criminal codefendants.15 It ensures that the only case where such representation will be tolerated is where the possibility of conflict is completely absent.16 Given the perils of joint representation of criminal codefendants, one can only wonder why Section 4-3.5(c) is cast aside for its lenient, but admittedly general,17 counterpart Model Rule 1.7(b).18

I. THE SIXTH AMENDMENT RIGHT TO COUNSEL IS NOT ABSOLUTE

Proponents of the right of a criminal defendant to select the representation of his choice, despite possible conflicts based on that attorney's representation of a codefendant, often rely on the Sixth Amendment's right to counsel.19 However, many commentators feel that the right to counsel has been interpreted too broadly and argue that the Constitution did not intend to create an environment in which the defendant is always entitled to counsel of his choosing.20 This is especially true when an attorney represents multiple codefendants, because the likelihood that the attorney can adequately serve the best interests of each defendant is greatly diminished.21

The Sixth Amendment provides that:

In all criminal prosecutions, the accused shall enjoy the right to a speedy trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.22

Thus, the Sixth Amendment leaves considerable room for interpretation because it establishes only a minimum standard. Rhea Kemble Brecher argues that the Sixth Amendment only guarantees that the defendant's attorney will understand the procedural rules, the rules of evidence and can provide professional advice.23 Thus, the right to counsel is not absolute.24 The Supreme Court has chosen not to interpret the Sixth Amendment as a guarantee of counsel of defendant's choosing, as evidenced by the fact that counsel for an indigent defendant is appointed, not selected.25

[W]hile the right to select and be represented by one's preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers.28

The Wheat Court found that the District Court did not abuse its discretion in denying petitioner's waiver and substitution of counsel because of the special dangers inherent in the representation of multiple defendants. Because courts must attempt to foresee possible ineffective representation due to multiple representation before such a problem arises, the Supreme Court agreed that the potential conflict of interest was too great to justify interpreting the Sixth Amendment to permit multiple representation in such a case.29

Accordingly, the Sixth Amendment does not necessitate a rule that defendants may choose their representation at any cost. On the contrary, the Sixth Amendment only ensures a minimal quality of counsel.30 Therefore, there is no constitutional requirement that courts must allow multiple representation of criminal defendants.

Based on this constitutional interpretation, a defendant's choice to waive his right to conflict-free counsel so as to obtain the counsel of his choosing should not be allowed to override the fundamental importance of effective and independent counsel. A defendant choosing co-representation may be urging the court to sacrifice the most effective counsel for the attorney of his choosing. The argument in favor of permitting a defendant's choice is that he has the greatest interest in controlling the progress and direction of the litigation despite the possibility of a bad decision.31 This point aside, many commentators have encouraged a per se ban on multiple representation of criminal defendants, although no such prohibition has yet been applied.32 Thus the current practice of allowing multiple representation of criminal codefendants is not necessarily bolstered by a constitutional argument, as it would not be unconstitutional to prohibit multiple representation.

potential conflict of interest.34 Although neither Model Rule 1.7 nor Section4-3.5(c) prohibits an attorney from engaging in multiple representation of criminal defendants, Section4-3.5(c) moves further toward establishing an ethical prohibition against multiple representation by including this warning in the body of its text rather than in the commentary, as Model Rule 1.7 does. Because such a requirement of separate representation is not unconstitutional,35 Standard 4-3.5(c) is the more appropriate means to avoid conflicts of interest.

11. THE CLIENT'S "INFORMED" CONSENT IS INSUFFICIENT