Conflicts of interest when acting for co-defendants
The following guidance has been issued by the Law Society's standards board and criminal law committee to help criminal practitioners identify conflicts of interest and potential conflicts of interest when asked to act for co-defendants
Law firm partners should ensure that all those who take instructions from defendant clients on their firm's behalf have read and understood this guidance. The guidance is followed by a step-by-step guide, which is intended to be used as a quick conflict check when interviewing defendants.
Although the guidance is not mandatory, it will be taken into account by the Law Society when exercising its regulatory function. Practitioners may be asked to demonstrate how they have complied with the rules and principles of professional conduct if they have failed to follow this guidance.
The Criminal Defence Service Regulations were amended recently to require one solicitor to be appointed to act for all co-defendants in a legal aid case unless there is, or is likely to be, a conflict. The purpose of this was to ensure economy in the use of public funds by ensuring that a single solicitor represented co-defendants where it was proper to do so.
The current professional conduct obligations that deal with conflicts of interest (and a new conflict rule that will replace these obligations, but is not yet in force) prevent a solicitor or firm acting for two or more clients where there is a conflict, or significant risk of a conflict, arising between the interests of two or more clients. They do permit a solicitor to act for co-defendants where conflict is not a factor. The difficulty often lies, however, in spotting potential conflict and deciding whether it is sufficiently real to refuse instructions. This guidance is intended to help you make these decisions.
Your starting point when considering conflict should always be your fundamental professional obligation to act in each client's best interests. Can you discharge this obligation to each client? This means firstly asking clients whether they are aware of any actual or potential conflict between them, and then, if they indicate that there is no such conflict, asking yourself whether you feel there are any constraints on the advice you would want to give to one client - or the action you would want to take on that client's behalf - which is likely to arise because you act for another co-defendant.
A conflict of interest arises wherever there is a constraint of that sort, for example, where it is in the best interests of client A:
If these obligations actually come into conflict when acting for two or more clients you will have to cease to act for one, and often both. This can cause considerable disruption and expense, which is why the rules require that you should not accept instructions if there is a significant risk of this happening.
Many criminal clients will have retained you at the police station prior to a police interview and are thus not, at that stage, defendants. The obligations referred to above obviously apply at this early stage and you must be satisfied that in accepting instructions on behalf of a client prior to a police interview this does not place you in conflict with another client who is also to be interviewed.
To assess whether you can act for both clients, it is important that you do not interview the clients together and that you get instructions that are as full as possible from the first client before any substantive contact with the second client.
However, never let the police deter you from seeing the second client because they think there is a conflict - that decision must be yours.
A further consideration when taking instructions at the police station, especially out of office hours when an immediate conflict check is not possible, is that the firm may already act for another defendant in that matter or information obtained at the police station may be relevant to another client on an unrelated matter.
For example, the firm may be acting in divorce proceedings for a wife where violence is alleged and information that her husband has been charged with an offence involving violence would be relevant and may make it impossible to continue acting for the wife. This highlights the importance of carrying out a conflict check at the earliest opportunity.
When considering accepting instructions from more than one client in the same matter you need to assess not only whether there is a conflict at the outset, but whether events are likely to arise that will prevent you from continuing to act for one or both at a later stage in the proceedings. In almost all cases there will be some possibility of differences in instructions between the clients but the rules do not prevent you acting unless the risk of conflict is significant. Assessing the risk is often not easy. It is also important that where you have accepted instructions from co-defendants you remain alert to the risk of conflict arising as the case progresses.
When considering whether there is an actual conflict there are obvious indicators such as whether the clients have differing accounts of the important relevant circumstances of the alleged crime or where one seems likely to change his plea.
There are also less obvious indicators. These would include situations where there is some clear inequality between the co-defendants which might, for example, suggest that one client is acting under the influence of the other rather than on his own initiative. If you are acting for both, this may make it difficult for you to raise and discuss these issues equally with them. In trying to help one, you might be undermining the other. If you believe you are going to be unable to do your best for one without worrying about whether this might prejudice the other you should only accept instructions from one.
The risk of future conflict can be an even more difficult issue to assess. It may be that you have two clients who are pleading not guilty and who are apparently in total agreement on the factual evidence.
Should they both be found guilty, you need to consider at the outset whether you would be able to mitigate fully and freely on behalf of one client without in so doing harming the interests of the other. It may be that one has a long list of convictions and is considerably older than the other. If so, it may be that the younger client, with a comparatively clean record, was led astray or pressurised into committing the crime and would want you to emphasise this in mitigation. If there is a significant risk of this happening you should not accept instructions from both.
Even where care is taken when accepting instructions from more than one client in the same matter there will inevitably be situations where a conflict subsequently arises. This will commonly happen where one defendant changes his plea or evidence. A decision will then have to be taken as to whether it is proper to continue to represent one client or whether both will have to instruct new firms. In making this decision, you need to consider whether, in the changed circumstances, your duty to disclose all relevant information to the retained client will place you in breach of your duty of confidentiality to the other client.
In other words, you need to decide whether you hold confidentially any information about the departing client that is now relevant to the retained client. If you do have such information then you cannot act for either client.
Following the changes to the regulations, some practitioners have reported pressure from some court clerks on solicitors to represent co-defendants even where there is a clear risk of conflict. Similar pressure has been applied by police at police stations prior to interviews.
However, the professional rules of conduct preclude you acting for both clients in those circumstances, and the regulations are not intended to put solicitors in a position where they are asked to act contrary to their professional responsibilities. If asked by the court for your reasons why you cannot act for both defendants, you must not give information that would breach your duty of confidentiality to your client(s). This will normally mean that you can say no more than that it would be unprofessional for you to continue to act.
For the avoidance of doubt, you cannot resolve a conflict by instructing another firm or counsel to undertake the advocacy on behalf of one client. Neither can you pass one of the clients to another member of your firm. The rules make it quite clear that your firm cannot act for clients whose interests conflict.
Any decision to act, or not to act, for co-defendants should be recorded with a brief note of the reasons.
Guide - acting for two clients; avoiding conflicts
To minimise the potential for conflicts when you already act for client 1 (C1) and are asked to act for client 2 (C2), you should take the following steps:
Take instructions from C1. When doing so you should:
If these amount to a conflict, you cannot act for C2. If they do not, inform C1 of this and that you will be able to act for C2.
Inform C1 that if, at any stage, you come into possession of information which is confidential to C1, but which is relevant to C2, you will have a duty to disclose it to C2, at which stage you will need his consent to disclose it to C2.
Take instructions from C2. When doing so you should:
If C2 states that there is not a conflict, inform C2 that if at any later stage you come into possession of information which is confidential to C2, but which is relevant to C1, you will have a duty to disclose it to C1, at which stage you will need his consent to disclose it to C1.
If at any stage you do receive confidential information in relation to one client ('the first client') that is relevant to the other client ('the second client') you must inform the first client of this and seek his consent to disclose it to the second client. You should make it clear that there is no obligation upon him to give consent.
If he does not consent to such disclosure, you must cease to act for the second client to whom you are required to disclose the information. You must not disclose your reasons for ceasing to act.
You can only continue to act for the first client if the duty of confidentiality to the second client is not put at risk.
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