One Retainer, Two Accused, Opposite Defences
Lawyer Adjoa is instructed by the mother of two accused persons, Nii and Kojo, who are jointly charged with conspiracy and robbery. The mother pays a single retainer and asks Adjoa to ‘do everything for both boys.’ At the first appearance, Adjoa appears for both and obtains bail. The case is adjourned for trial. When she visits them separately, Nii says Kojo planned the robbery and forced him to come along; Kojo says Nii planned it and that he was only the lookout. Their statements to the police also contradict each other. The prosecution has served witness statements that suggest one of them may have been coerced. The mother now says she cannot afford a second lawyer. Adjoa is tempted to continue for both because she knows the case well and the family trusts her.
1. May Adjoa continue to represent both Nii and Kojo? Apply the conflict of interest rules and the relevant professional duties.
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Adjoa should not continue for both. Joint representation is not automatically prohibited, but it is improper where the defences are antagonistic. Here each accused’s account places responsibility on the other. If Adjoa continues, she cannot cross-examine Nii in a way that helps Kojo without damaging Nii, and she cannot use one client’s confidence for the other’s benefit. The duty of loyalty, confidentiality and competence is owed to each client individually.
The family’s inability to pay for two lawyers and their trust in Adjoa do not cure the conflict. Informed consent is not a complete answer in a criminal case where the conflict goes to the heart of the defence: each accused needs independent advice, and the court may refuse to permit the joint representation. The fact that she appeared for both at the first appearance does not make the conflict lawful; it may make the need to withdraw more urgent.
2. If she has already appeared for both, what steps must she take, and what should she tell the family and the court?
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She should (a) inform the family, in broad terms, that a conflict has arisen and that each accused needs separate advice; (b) apply to the court for leave to withdraw from representing at least one, and preferably both if the conflict is pervasive; (c) not disclose to the court or to either client the confidential information she received from the other; (d) take immediate steps to protect the clients’ positions, including applying for an adjournment so new counsel can be instructed and explaining the importance of separate representation; (e) hand over the file and account for any retainer in accordance with the client’s instructions.
If legal aid is available, she should help the family apply. She should not simply abandon the case without leave. The court should be told only what is necessary to explain the withdrawal: that a professional conflict has arisen, not the details.
3. What are the consequences of continuing, both for Adjoa and for the fairness of the trial?
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Continuing would expose Adjoa to disciplinary proceedings under the Legal Profession Act, 1960 (Act 32) and the professional conduct rules, including sanctions for conflict of interest and failure to act competently. It could also found a complaint by either client. More importantly, it may make the trial unfair under Article 19(2)(d): if one accused is convicted after a trial in which his lawyer was also advancing the other’s case, the conviction may be quashed on appeal.
The prosecution should not exploit the conflict; the court has a duty to protect the fairness of the trial and may inquire into joint representation. The safer course is separate counsel, an adjournment and a clear record. Adjoa’s duty to the court and to each client outweighs the family’s cost concerns.