Conflicts of Interest in Criminal Defense
When two people are charged in the same case, their first instinct is often to hire the same lawyer. They have the same story. They trust each other. They want to save money.
This is almost always a mistake.
Why joint representation is a problem
A criminal-defense lawyer’s obligation is to each client individually. When two clients are charged together, their interests diverge in ways that are not always obvious at the outset.
One defendant may have a viable plea offer that the other does not. One may benefit from testifying; the other may not. One may have information that helps the other’s defense but exposes the one who provides it. The government may offer cooperation to one and not the other. These divergences can emerge at any point in the case, and when they do, a lawyer who represents both clients cannot act in either one’s best interest.
Even when the defendants’ stories are identical today, they may not be identical tomorrow. A lawyer who represents both is constrained from advising either one fully, because anything learned from one client is owed to the other.
Why it matters even when you think it doesn’t
Defendants in the same case often believe the conflict is theoretical. We have the same story. We’re both innocent. We trust each other completely.
The conflict is not theoretical. The question is not whether you trust your co-defendant. The question is whether your lawyer can give you advice that accounts only for your interests and not someone else’s. A jointly retained lawyer cannot do that. Every strategic recommendation is filtered through the constraint of not harming the other client.
The right to conflict-free counsel is constitutional. Courts take it seriously because the harm is structural: it affects every decision the lawyer makes, not just the ones where the conflict is visible.
Why a waiver is not enough
Texas law allows a defendant to waive a conflict of interest after being advised of the risks. But a meaningful waiver requires the defendant to understand what the conflict is and how it could affect the representation. A lawyer who represents both clients often cannot explain the conflict fully without disclosing confidential information about the other client.
The standard solution is conflict counsel: an independent lawyer appointed to advise each defendant about whether to waive the conflict. This is the right procedure, but it exposes the problem with joint representation in the first place.
If you have conflict counsel, you already have two lawyers involved
Conflict counsel exists to give each defendant independent advice about whether to waive the conflict and proceed with joint representation. But if each defendant already has an independent lawyer evaluating whether joint representation serves that defendant’s interests, the question answers itself. You already have two lawyers involved. Keep them.
The money saved by hiring one lawyer instead of two is not saved if the joint representation results in a worse outcome for either defendant. And the worse outcome is not always dramatic. It can be a plea offer not pursued, a defense theory not raised, a cross-examination pulled because the answer might hurt the other client. These are harms that may never become visible, which is what makes them dangerous.
Hire your own lawyer.