Also known as: dual representations · dual agency · joint representation
Written by attorneys · grounded in primary & secondary sources — see below
A situation in which one agent or lawyer simultaneously represents two or more principals or clients in the same transaction or matter. The agent or lawyer owes each a duty of fairness and must disclose all facts that would reasonably affect the judgment of each principal or client in agreeing to the arrangement.
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Deanna Davenport hires Kiara as her agent to sell a commercial building. Kiara also represents the buyer, Dustin Donovan, in the same transaction. Kiara knows of a pending zoning change that would increase the property value but discloses it only to Donovan. Davenport later learns of the nondisclosure and sues Kiara for breach of the duty of fairness owed to both principals.
Denise Donovan and her son Dylan are injured in a car accident. Their insurer appoints one firm to represent both in an uninsured-motorist claim against a third party. The third party later sues Denise for contribution. The firm now faces a non-consentable conflict because it previously obtained confidential information from Denise that could be used against her.
Danielle Dixon and Dolores Diaz are charged together in a drug conspiracy. Both want to retain the same lawyer. The trial court inquires into the arrangement and finds that the lawyer's prior representation of a government witness creates an actual conflict. The court refuses to allow the joint representation even though both defendants are willing to waive the conflict.
A defendant sentenced to death claims his lawyer also represented a co-defendant whose interests diverged on sentencing strategy. The court examines whether the dual representation caused counsel to forgo an available mitigation argument that would have helped only the first defendant. The analysis focuses on whether the conflict adversely affected the lawyer's performance.
Three defendants charged in the same espionage conspiracy retain one lawyer. The lawyer learns that one defendant possesses exculpatory information that would incriminate the others. The lawyer cannot present that evidence without harming two clients while helping the third. The arrangement creates an irreconcilable conflict that the court must address.
A defendant convicted of murder alleges that his trial lawyer previously represented the victim in an unrelated matter. The defendant never objected at trial. To obtain relief he must show that the lawyer actively represented conflicting interests and that the conflict adversely affected the representation.
The court must promptly inquire into the propriety of the joint representation and personally advise each defendant of the right to effective assistance of counsel, including separate representation. Unless good cause exists to believe no conflict is likely, the court must take measures to protect each defendant's right to counsel.
Supporting sources
If a trial court is advised of a conflict arising from joint representation and fails to act, reversal is required without a separate showing of prejudice. A defendant who did not object at trial must show that counsel actively represented conflicting interests that adversely affected the representation.
…Cf. United States v. Ellison, 557 F.2d 128, 131 (CA7 1977). In discussing the related problem of measuring injury caused by joint representation of conflicting interests, we observed: "[T]he evil . . . is in what the advocate finds himself compelled to refrain from doing, not only at trial but also as to possible pretrial plea…
…the conflicts warrant separate counsel. See also Cuyler v. Sullivan , 446 U. S. 335 (1980). As we said in Holloway : “Joint representation
…counsel for each defendant. Following their arraignment on June 20, 1969, all save appellant Robert Begin elected interim joint representation
Supporting sources
Although a defendant generally has the right to counsel of choice, there is no constitutional right to joint representation with co-defendants. Trial courts may limit or prohibit joint representation to avoid potential or actual conflicts of interest, even when all defendants are willing to waive conflicts.
Supporting sources
An agent who, to the knowledge of two principals, acts for both in a transaction between them must act with fairness to each and disclose all facts the agent knows or should know would reasonably affect the judgment of each in permitting the dual agency, unless a principal has manifested knowledge of the facts or indifference to them.
Supporting sources