Advocate Conflict of Interest in a Joint Criminal Case
Advocate S. is retained by two co-defendants, Mikita and Yauhen, charged with fraud in the same case. Their interests initially appear aligned: both deny intent. During review of the file, S. learns that Mikita's statement places primary responsibility on Yauhen, while Yauhen's statement says Mikita organized the scheme. S. has already advised both and knows confidential details from each. The prosecutor offers Mikita a lenient position if he testifies against Yauhen. Mikita asks S. whether to accept. S. is unsure whether to continue representing both and whether to advise Mikita on the offer.
1. Analyze the conflict of interest and whether S. may continue representing both clients.
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A clear conflict exists. The co-defendants' defenses are mutually contradictory, and the prosecutor's offer creates a direct divergence: a benefit for Mikita depends on testimony adverse to Yauhen. An advocate cannot represent clients with conflicting interests in the same matter, and cannot use confidential information from one client against the other. S. must not advise Mikita on the offer while representing Yauhen, because that advice would be shaped by Yauhen's confidences. The proper course is to withdraw from at least one representation, ideally both if the conflict is structural, after notifying each client and the investigating authority in accordance with procedure. S. should not disclose either client's confidences during withdrawal.
2. What steps should S. take to protect both clients and professional obligations?
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S. should promptly inform both clients in writing that a conflict has arisen and that continued joint representation is impermissible, without revealing the other's confidences. S. should assist each in obtaining separate counsel and request a reasonable adjournment if needed to avoid prejudice. Records should be preserved, and S. should not discuss one client's case with the other. If Mikita wishes to consider the prosecutor's offer, that decision must be handled by his new advocate. S. should document the withdrawal and the reasons in a form that protects confidentiality, and should not later represent either client against the other in the same matter.