Joint defence for co-accused: resolving conflicts of interest

Section 10 RAO requires a lawyer to decline representation if the lawyer has acted for the opposing party in the same or a related matter. It also prohibits serving or advising both sides in the same lawsuit.

Section 10 RAO addresses representation of an opposing party and service to both sides of the same lawsuit. On its own, it does not determine whether the interests of several co-accused align in a particular case. Each mandate requires a concrete assessment; section 10 RL-BA 2015 sets out the professional duties where several clients may have conflicting interests.

If representing the respective clients’ interests in their mandates is impaired, the lawyer may not accept a new mandate. Any existing mandate must be laid down promptly for all affected clients. The RL-BA identifies, among other grounds, a conflict between clients, a risk to professional secrecy and a lack of independence.

Whether a defence lawyer is legally required is a separate issue. The article When a defence lawyer is mandatory in criminal proceedings explains the situations in which defence is mandatory.

Section 9(1) RAO requires a lawyer to represent a client’s rights with diligence, loyalty and care. Under section 57(1) StPO, a defender advises and supports the accused and uses lawful means of defence. A joint instruction must satisfy that duty for each mandate.

A shared file or the same allegation does not show whether the clients’ interests actually align. Their respective roles, knowledge and defence objectives matter. If one client’s strategy depends on an account that places responsibility on the other, the lawyer may face a conflict of loyalty.

Section 57(2) StPO also preserves the accused’s own procedural position. The accused may make statements personally. If a statement by the accused conflicts with one by the defender, the accused’s statement prevails. Joint representation must leave that personal decision-making intact.

The clients’ accounts of their roles begin to diverge. One person is said to have made a decision that the other attributes to themselves or disputes.

One defence would need to challenge the other client’s credibility, knowledge or responsibility. That is a concrete reason to review whether the joint representation can continue.

The accused pursue opposing objectives about a statement, an admission or the account of particular events. The lawyer must assess whether each client can still receive independent advice and representation.

The position may change as the case develops. New file material, an interview or a revised defence strategy can make another review necessary. A warning sign alone does not decide the legal issue; the test remains whether representation of the client’s interests is impaired in that mandate.

Section 9(2) RAO requires a lawyer to keep confidential matters entrusted by a client and professional facts whose secrecy serves that client’s interests. Section 10(1) RL-BA 2015 identifies a risk of breaching professional secrecy as a possible source of conflict. It also addresses the unfair advantage that knowledge of a former client’s affairs could give a new client.

At the start of a joint mandate, clarify how individual meetings, joint discussions and documents will be handled. Each accused should understand what the lawyer may share with the other client and how confidential information will be treated.

A person who instructs one lawyer for two clients should not assume there are two fully separate confidential advice channels. If information from one mandate becomes important to representing the other client effectively, the duty of confidentiality may impair the joint representation.

If a conflict impairs representation of the clients’ interests in their mandates, section 10(1) RL-BA 2015 requires the lawyer to act. The lawyer may not accept a new mandate and must promptly lay down existing mandates for all affected clients. The mandates affected depend on the clients’ particular interests and the information obtained.

The clients then need an orderly continuation of their individual defence. Clarify who will handle the next procedural step, what dates are approaching and how the necessary documents will be transferred. Professional secrecy continues to apply during that transition.

An accused whose defence already conflicts with that of a co-accused should seek independent legal advice promptly. This is especially important if an interview or court date is approaching.

Ask whom the lawyer represents and whether the instruction covers both individual defences. Explain your own role and defence objectives in a confidential conversation with the lawyer. Do not coordinate different accounts with the co-accused to create a shared version.

Ask the lawyer to assess each mandate separately for conflicts and explain how confidential information is handled. Keep notices, deadlines and the next procedural date to hand. If a conflict is already apparent, obtain an independent legal assessment as early as possible.

File access under section 51 StPO helps with reviewing the case material. It does not replace an individual conflict assessment. The article File access for accused persons explains the right to inspect the file and possible restrictions.