Posted on
October 13, 2009 in
Recurring newbie lawyer question on criminal defense listservs:
“Does anyone have a conflict of interest waiver form they can share?”
(A little background for the nonlawyers: a lawyer is to represent her client’s best interests. Each client has his own best interests. A lawyer can’t choose between one client’s interests and another’s; she must serve both. Sometimes this is impossible: when it is in client A’s best interests to cooperate with the government against client B, and not in client B’s best interest, for example, a direct conflict of interest arises and the lawyer has a problem that she may be able to resolve only by withdrawing from both cases.)
Avoiding conflicts of interest is a good idea. One good way to avoid conflicts of interest is not to represent codefendants, people charged with crimes arising out of the same facts.
Sometimes A and B come in to hire the lawyer together. It appears that they have a common defense and no conflict. They’ve heard good things about the lawyer, or one has used her before, and both want to hire her.
It’s at this point that the noob criminal-defense lawyer goes online looking for a piece of paper to make the representation legit. Two fees are, after all, better than one.
Problem 1: the lawyer can’t possibly know at this point that there will be no conflict of interest. (Example: next week A comes in and says that the story he and B told was a lie, and he wants to outrun the bear—to be the first to come clean with the government.) Seeking a waiver of a conflict is an admission that there is a potential conflict of interest.
Problem 2: aside from the potential conflict between the clients, there is a second potential conflict of interest here: that between the lawyer and both clients. It is in the lawyer’s best interests (at least financially and short-term) to have the clients sign a waiver of conflict. But it may not be in the clients’ best interests to do so—they may be better served hiring separate lawyers.
Problem 3: for that reason, before signing a waiver of conflict, each client should have the advice of a lawyer who has no conflict of interest. The lawyer with the potential conflict who advises the client to “waive” the conflict is setting herself up for trouble.
A waiver of conflict is valueless. If no conflict emerges, it’s a waste of paper; if a conflict emerges, the lawyer has to get off the case anyway.
One of the good things about federal court is that federal judges (at least here in the Southern District of Texas) won’t countenance a lawyer representing codefendants.
I’ve turned down a lot of lucrative cases because of potential conflicts of interest. (I’ve also made a few of my fellow lawyers very happy with lucrative referrals.) I like a good fee as much as the next lawyer does, but still my advice to the newbie lawyer looking for a conflict of interest waiver form is this: don’t do it.
Of course, sometimes it’s a prisoner’s dilemma.
Both clients have a good chance of winning if neither cooperates.
If one cooperates against the other, both clients will certainly lose — one more than the other.
The government plays divide and conquer, trying to intimidate one into losing only a little so that the other one loses big, and the government wins both.
Also, often the clients between them can only afford one GOOD lawyer, or two bargain-basement lawyers. It becomes in their interest to pool resources.
I just don’t see the issue as being as black and white as you put it. The question is what is most likely to get both clients the best result — if joint representation achieves that goal, then it is in both their interests to have joint representation. If not, not.
Very often, in federal cases, you see coordinated defenses succeeding — different lawyers but sharing resources and information. The only real difference between that and one lawyer is that you have more hands on the wheel.
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