NCJ Number
47336
Journal
Minnesota Law Review Volume: 62 Issue: 2 Dated: (JANUARY 1978) Pages: 119-162
Date Published
1978
Length
44 pages
Annotation
PROBLEMS THAT ARISE WHEN DEFENSE ATTORNEYS REPRESENT MORE THAN ONE DEFENDANT IN A CRIMINAL CASE ARE EXAMINED, AND A PROPOSAL TO ELIMINATE MULTIPLE REPRESENTATION IS ADVANCED.
Abstract
THE MANNER IN WHICH CONFLICTS OF INTEREST MAY SURFACE AT VARIOUS STAGES OF A CRIMINAL PROCEEDING (PLEA BARGAINING, CLOSING ARGUMENT, SENTENCING) AND RELATIVE TO VARIOUS ASPECTS OF TRIAL REPRESENTATION (INCONSISTENT DEFENSES, DEFENDANTS AS WITNESSES, EVIDENCE OFFERED BY THE PROSECUTION) IS DISCUSSED. THE POSSIBILITY OF A DEFENSE LAWYER, WHO IS REPRESENTING MORE THAN ONE CLIENT, BEING CALLED UPON TO MAKE CHOICES BETWEEN THE INTERESTS OF ONE CLIENT AND THOSE OF ANOTHER IS SAID TO EXIST AT EVERY STAGE OF CRIMINAL PROCEEDING. APPELLATE REVIEW IS SAID TO BE INADEQUATE AS A MEASURE FOR REMEDYING SUCH CONFLICTS OF INTEREST. MEASURES THAT HAVE BEEN EMPLOYED TO RESOLVE CONFLICTS AT TRIAL (WAIVER, SHIFTING THE BURDEN OF PROOF, SEVERANCE, INITIAL APPOINTMENT OF SEPARATE COUNSEL, RESPONSIBILITY OF DEFENSE ATTORNEY) ARE ALSO FOUND WANTING. THE ANSWER TO THE PROBLEM OF CONFLICT OF INTEREST IN MULTIPLE REPRESENTATION LIES NEITHER IN CONSTITUTIONAL PRINCIPLE NOR IN JUDICIAL RULEMAKING, BUT IN A LEGAL PROFESSION MORE CONCERNED WITH JUSTICE THAN WITH NARROW SELF-INTEREST. IT IS RECOMMENDED THAT THE AMERICAN BAR ASSOCIATION'S CODE OF PROFESSIONAL RESPONSIBILITY BE INTERPRETED TO PROHIBIT AN ATTORNEY FROM REPRESENTING MULTIPLE DEFENDANTS IN CRIMINAL CASES. (LKM)