Waiving Conflict II
From the comments to my post on Waiving Conflict of Interest:
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.
The lawyer’s job is not to optimize the result for all of his clients, but to optimize the result for each of his clients. When the lawyer represents two clients with potentially conflicting interests, which is the “each” that takes priority? If the answer were “both together”—if the mission were to optimize the overall result—then result trading among unrelated clients’ cases would be permissible: get C to take a couple of extra days so that A (whom C knows nothing about) can get a couple fewer years. And we know that’s not ethical. I’m all in favor of lawyers coordinating their defenses. I’ll tell potential clients who have codefendants that everyone’s chances are better if codefendants are represented by lawyers who work well together and trust each other—not because each lawyer won’t help his client to do something to harm the other lawyers’ clients, but because no lawyer will be in a hurry to do so. Often, if nobody talks, everybody walks.
But this is no less true when everyone has an independent lawyer than when there is joint counsel with a potential conflict. The real difference between coordinated defenses and a shared lawyer is that, in the case of coordinated defenses, each client has a lawyer who is responsible only for his interests, and each lawyer advises his client on the best resolution of the dilemma based only on those interests, which is what our ethics (as well as the DRs) require.
Clients’ inability to afford competent independent lawyers is a problem. I don’t know how to ethically resolve it. Any time you feel the need to have a client to sign a waiver before you can represent him, you have a conflict of interest. Outside conflict determination counsel—someone to advise each client on the ups and downs of risking conflicted counsel before signing any waiver—is a must. If I ever got into that situation and needed to take both cases I would probably call in a couple of favors and get a couple of friends to do the outside counsel job.
I’d much rather refer the whole mess out, though.
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