Two Clients, One Secret, and a Watch

Marat faces a classic joint-representation conflict. At the outset, representing co-defendants is permissible only if their interests are compatible and both clients give informed consent after full disclosure of the risks. Here the interests have diverged sharply: Askar has a plea offer that may require him to testify against Bolat, while Bolat's best defence may be to blame Askar. Marat cannot actively represent both sides of that divide. Before deciding, he must meet each client separately, explain the conflict in concrete terms, and obtain each client's informed consent if he proposes to continue. But consent cannot cure a conflict that requires him to use one client's confidential information against the other. Askar's statement that Bolat knew nothing is confidential to Askar. Marat cannot disclose it to Bolat without Askar's consent, and he cannot use it to build Bolat's defence while still representing Askar. The realistic options are to withdraw from one representation or, if both agree and the conflict is manageable, to limit the scope. Given the plea offer, withdrawal from at least one client is the safer course. The reasoning is that loyalty and confidentiality are not technicalities; they determine whether the client can speak freely.

The contingent bonus is problematic because it ties the advocate's remuneration to the outcome of a criminal case. In criminal defence, an outcome-based bonus creates an incentive to pursue an acquittal by improper means, to pressure the client, or to disregard the client's own wishes. Even where the general law allows flexible fee arrangements, the ethics rules restrict arrangements that compromise independence. Marat should not agree to the 'no imprisonment' bonus; he should restructure the fee as a fixed or hourly amount agreed in writing. The watch is a separate problem. A gift worth 900,000 tenge from a client's relative during the case is not a normal token of gratitude; it creates an appearance of influence and may raise anti-corruption concerns. The advocate should decline it or return it, explain why, and document the refusal. If the watch is not returned, the client may later claim that the lawyer was bought, and the bar may treat the gift as improper. The reasoning is that both arrangements target the lawyer's judgement rather than his work. The correct response is to preserve independence, not to calculate how large a gift can be before it becomes unethical.

Marat must first clarify his role. As Askar's advocate, he can advise Askar on the plea offer, explain its consequences, and ensure that any testimony is voluntary and truthful. He must not pressure Askar to testify against Bolat, and he must not help Askar present a false account. Askar's statement that Bolat knew nothing is confidential. Marat may not repeat it to Bolat or to the court without Askar's consent. He can, however, discuss with Askar whether Askar is willing to testify and what the consequences would be. If Askar decides to testify, Marat should prepare him to tell the truth, not to tailor his evidence to save Bolat. If Bolat remains a client, Marat cannot cross-examine Askar in a way that uses Askar's confidential information, because that would betray Askar. This is another reason the joint representation cannot continue. The advocate should also warn Askar that a plea offer is not a guarantee and that any statement he makes may be used in the case. The reasoning is that the lawyer's duty is to each client's informed, voluntary decision, not to the lawyer's own theory of who is innocent.