Schooled in Ethics

SCHOOLED IN ETHICS By: Judy M. Cornett

UT College of Law

REPRESENTING MULTIPLE CRIMINAL CODEFENDANTS

James Dale Holcombe owned a lucrative business, Cash for Cards. He bought stolen gift cards from individuals and sold them on the Internet. Holcombe and his three employees were arrested and charged with dealing in stolen property. Holcombe was also charged with a RICO offense. The four codefendants engaged two associated attorneys to represent them. Although counsel presented the court with written signed waivers from all four codefendants, the court strongly cautioned each defendant about the dangers of proceeding with joint representation.

Two of Holcombe’s codefendants took plea deals and agreed to testify against Holcombe. Although Holcombe’s counsel would now have to cross-examine two of his clients in order to defend the third, the court made no further inquiry of the codefendants. At trial, Holcombe’s two codefendants testified, and his counsel cross-examined them, although they were also his clients. Holcombe was convicted. On appeal, he argued that he was entitled to a per se reversal -- because his counsel labored under an actual conflict, he did not have to prove deficient performance.1

The Florida courts rejected Holcombe’s claim, and the U.S. Supreme Court denied cert, Justice Sotomayor dissenting. She opined that the conviction should have been reversed because the initial potential conflict ripened into an actual conflict when the two codefendants agreed to testify for the prosecution. At that point, the trial judge “should have taken the precaution of advising the defendants to confer again with unconflicted counsel regarding the propriety of the representation and should have directly explained the serious dangers of continuing with an actually conflicted attorney.”2

There is also an ethical dimension to the representation of codefendants in a criminal case. Tennessee Rule of Professional Conduct 1.7( c) provides: (c) A lawyer shall not represent more than one client in the same criminal case or juvenile delinquency proceeding, unless: (1) the lawyer demonstrates to the tribunal that good cause exists to believe that no conflict of interest prohibited under this Rule presently exists or is likely to exist; and (2) each affected client gives informed consent.

Comment [35] provides: “The potential for conflict of interest in representing multiple defendants in a criminal case or in juvenile delinquency proceedings is so grave that ordinarily a lawyer should decline to represent more than one co-defendant.” However, the representation may be consentable if the lawyer can persuade the tribunal that the potential conflict posed by the joint representation will not ripen into an actual conflict.

Tennessee Rule of Criminal Procedure 44(d)(2) provides:

(2) Court’s Responsibilities in Cases of Joint Representation. The court shall promptly inquire about the propriety of joint representation and shall personally advise each defendant of the right to the effective assistance of counsel, including separate representation. Unless there is good cause to believe no conflict of interest is likely to arise, the court shall take appropriate measures to protect each defendant’s right to counsel. At this point, defense counsel usually proffers the codefendants’ signed consents, which they are asked to affirm on the record. Even though Rule 1.7( c) does not require written consent, Rule 1.7(b) requires that “each affected client gives informed consent, confirmed in writing.” To obtain informed consent, the lawyer must “communicate[] adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”3 Therefore, the lawyer must explain the risk that an actual conflict will develop if one codefendant is offered a plea deal and the risk that the lawyer could be disqualified or be required to withdraw if an actual conflict develops. The lawyer must also explain the alternative of separate representation.

In Potka v. State, 4 the Court of Criminal Appeals held that the trial court did not abuse its discretion in disqualifying counsel for four codefendants, despite the codefendants’ written consent. The court noted that (1) the four codefendants faced different charges; (2) “there was a ‘different plea offer for three of them as opposed to one’”;5 (3) three of the codefendants were noncitizens and were subject to deportation; and (4) three of the codefendants “were able to communicate only through an interpreter.”6 The court held that “a trial court has wide-ranging authority to disqualify counsel from representing multiple defendants if there is an actual conflict of interests or a serious potential for conflict.”7

In Hanley v. State, 8 the Court of Criminal Appeals denied a petition for post-conviction relief by a defendant who was jointly represented along with his codefendant by two associated attorneys. The two attorneys “share[d] office space, including the same secretary,” and one of the attorneys worked as an independent contractor for the other, receiving a weekly salary as well as a percentage of business that he brought into the firm.9 The trial judge engaged in a thorough inquiry under Rule 44(d), finding that the codefendants “had executed valid waivers of their right to conflict-free counsel.”10 The trial court found that the associated attorneys “have been sensitive to the potential for conflict of interest since the beginning of the representation, have exchanged no information with one another, and will continue to exercise independent judgment in the representation of their co-defendant clients.”11

Despite the active role of the trial court in addressing conflicts of interest in joint representation of multiple criminal codefendants, lawyers should remember that “[a]voiding a conflict-of-interest situation is in the first instance a responsibility of the attorney.”12

1 Holcombe v. State, 312 So. 2d 132 (Fla. Ct. App. 2020). 2 Holcombe v. Florida, 595 U.S. ___ (2022), slip op. at 5 (Sotomayor, J., dissenting from denial of cert.). 3 Tenn. R. Prof. Conduct 1.0( e). 4 2002 WL 65993 (Tenn. Crim. App. Jan. 18, 2002), perm to app. denied (Tenn. July 15, 2002). 5 Id. at *1. 6 Id. at *4. 7 Id. at *3 (disagreeing with State v. Parrott, 919 S.W.2d 60, 61 (Tenn. Crim. App. 1995) that “[a]n actual conflict, rather than the mere possibility, must be established prior to any removal or withdrawal of counsel.”). 8 2001 WL 1452178 (Tenn. Crim. App. Apr. 1, 2000). 9 Id. at *2. Joint representation includes representation by attorneys who are “associated in the practice of law.” Tenn. R. Crim. P. 44(d)(1)(B). 10 Id. at *4. 11 Id. at *5. 12 Fed. R. Crim. P. 44 advisory committee comment.