Two Accused, One Brief, Two Defences
You are the only counsel on record for two men, Musa and Emeka, jointly charged with armed robbery before the High Court of Kano State. Each has paid N750,000 of an agreed N1.5m fee; N600,000 remains outstanding on each brief. The prosecution has called four witnesses. At the last adjournment, Musa told you in conference that he was at a naming ceremony in Sabon Gari and that six people can confirm it. Emeka then told you, in the same conference, that Musa planned the operation and that he, Emeka, only drove the vehicle because Musa threatened him. Both insist that you continue for them and that whatever they say in court is their business. The judge has fixed 12 November for the defence; the prosecution has indicated it will rely on the confessional statements. Emeka's mother has also asked you privately to make sure Musa is the one who goes down.
1. Can you continue to act for both accused? Set out the governing principle and apply it to these facts.
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Principle. Joint representation is permissible at the outset where co-accused share a common defence and each gives informed consent. It becomes improper when their interests diverge materially, because a lawyer owes each client undivided loyalty and cannot use one client's confidence against the other.
Application. Here the defences have already collided. Musa's case is alibi; Emeka's case is that Musa planned the robbery and coerced him. Advancing Musa's alibi necessarily undermines Emeka, and cross-examining Musa on Emeka's account would use Emeka's confidence against Musa. The conflict is not theoretical or remote; it is the central issue at trial.
Consent does not cure it. Consent only works where the lawyer reasonably believes he can act competently and without material prejudice to either client. That belief is impossible here. The conflict-of-interest rule in the Rules of Professional Conduct for Legal Practitioners 2007 forbids continuing.
Conclusion. You must cease to act for both accused, not choose one side.
2. If you must withdraw, how do you do it without breaching confidentiality or prejudicing the clients, and what is the position on fees?
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Withdrawal. Apply to the court on the next date for leave to withdraw your appearance for both accused and ask for an adjournment so each can instruct new counsel. Give only neutral reasons - 'professional grounds' - and do not tell the judge that Emeka blamed Musa. That is Emeka's confidence; disclosing it could destroy his defence and would itself be misconduct. If leave is refused, renew the application and explain, without revealing the confidence, that you cannot properly continue; you cannot be compelled to run a defence that sacrifices one client to the other.
File and lien. Hand over the file promptly to the new counsel. A retaining lien over papers cannot be used to strand a defendant in a criminal trial; the administration of justice outweighs the fee claim.
Fees. You have earned part of the fee (appearances, four prosecution witnesses, several months on record). Render a detailed account to each client, retain the earned portion on a quantum meruit basis and refund the unearned balance. You may sue for any balance, but the refund must not be made conditional on payment of the balance.
3. How should you respond to Emeka's mother's request?
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You act for Emeka, not for his mother. A third party cannot give you instructions, and you cannot discuss Emeka's defence with her or allow her to influence how you conduct the case.
Tell her plainly that you cannot act on her request, that you cannot discuss the case with her, and that you will not pass anything she says to Emeka without his authority. If she persists, make a contemporaneous file note of the approach. If what she is asking amounts to procuring evidence against Musa, warn Emeka and consider whether it affects the conflict analysis on withdrawal.
Her request is also a warning sign: it shows that family pressure is being brought to bear on the defence, and that the joint retainer is exposing both men to divided loyalties. It reinforces the conclusion that you must withdraw from both briefs.