In criminal cases, especially in economic offences, it is common to see one lawyer representing multiple accused persons. While this may appear convenient, the practice raises serious concerns about conflict of interest, attorney-client privilege, and the fairness of proceedings. This Insight explores why joint representation is problematic, how it can undermine the rights of the accused, and what the legal position on the issue is.
I. Introduction
In criminal litigation, and particularly in complex economic offences, it is not uncommon to find multiple accused persons being represented by the same lawyer or law firm. This practice, although prevalent, raises serious questions about conflict of interest, professional ethics, and the sanctity of attorney-client privilege. This article explains why representing multiple accused in the same criminal matter is problematic, how it affects the rights of the accused, and what principles lawyers must uphold in such situations.
II. Why Conflict of Interest Matters
The cornerstone of criminal defence is the lawyer's absolute loyalty to the client. When two or more accused persons are represented by the same lawyer/advocate, this loyalty can be compromised.
- Diverging interests: At the beginning of a case, it may appear that all accused persons share a common defence strategy. However, as the investigation progresses, interests often diverge, one accused may consider cooperating with the prosecution, or may make statements implicating others. In such circumstances, an advocate representing all parties cannot faithfully protect each client's interest.
- Strategic limitations: Certain lines of defence, plea-bargain options, or settlement discussions may be available to one accused but not the other. An advocate tied to multiple accused may be unable to advise candidly or pursue these options without breaching duties owed to the others.
- Risk to privilege: Attorney-client privilege requires strict confidentiality. When a lawyer represents multiple accused persons, there is a danger that privileged communications or strategies of one client may indirectly prejudice the other.
III. Economic Offences: The Problem Intensified
Economic offences, such as money laundering, corporate fraud, corruption, tax evasion, or customs violations, often involve multiple individuals from the same company or group. While the temptation is high for one legal team to "handle everything together," the risks are amplified:
- Complex structures: Company directors, officers, and employees may each have differing levels of involvement, knowledge, and liability exposure.
- Shifting blame: In economic offences, it is common for one accused to argue that responsibility lay elsewhere: on another director, on the finance head, or on external consultants.
- Regulatory pressure: Enforcement agencies frequently rely on statements from one accused person to build their case against others. Joint representation creates an inherent clash when such situations arise.
IV. Legal Provisions and Ethical Framework
- Advocates Act, 1961 (Section 35): This section deals with the professional misconduct of advocates, including cases where an advocate may be found guilty of conduct unbecoming a lawyer, such as conflicts of interest.
- Bar Council of India Rules: Part VI ("Standards of Professional Conduct and Etiquette") of the Bar Council of India Rules, expressly provides that an advocate who has, at any time, advised in connection with the institution of a suit, appeal or other matter or has drawn pleadings, or acted for a party, shall not act, appear or plead for the opposite party. Further, the Rules provides that an advocate shall at the commencement of his engagement and during the continuance thereof, make all such full and frank disclosure to his client relating to his connection with the parties and any interest in or about the controversy as are likely to affect his client's judgement in either engaging him or continuing the engagement.
- Indian Evidence Act, 1872 (Section 126): This provision protects confidentiality between legal advisers and clients, reinforcing that a lawyer must not disclose communication entrusted in confidence. Joint representation challenges this legality as confidential information may inadvertently be shared. The Bar Council Rules contain express provisions making Section 126 compliance a duty on every advocate.
- Case law: Courts in India and abroad have
repeatedly highlighted the dangers of multiple representation in
criminal defence.
- In the case cited as Chandra Shekhar Soni v. Bar Council of Rajasthan & Ors. (AIR 1983 SC 1012), the Supreme Court has held that "It is not in accordance with professional etiquette for an advocate while retained by one party to accept the brief of the other. It is unprofessional to represent conflicting interests except by express consent given by all concerned after full disclosure of the facts... Counsel's paramount duty is to the client and where he finds that there is a conflict of interests, he should refrain from doing anything which would harm any interest of his client".
- Another leading case law comes in from the US, cited as
Cuyler v. Sullivan (1980) and is highly relevant to the
topic of conflict of interest arising when one lawyer represents
multiple accused persons in a criminal matter. The US Supreme
Court, in such matter, held as follows:
- The Court held that a defendant must show an actual conflict of interest that adversely affected their lawyer's performance to establish a violation of the Sixth Amendment right to counsel. A mere possibility or potential conflict is insufficient.
- The Court emphasized the importance of independent and loyal representation, warning that when one lawyer represents multiple clients with potentially conflicting interests, the lawyer's performance may be compromised.
- The ruling also underscored that defense counsel have an ethical obligation to avoid conflicts and promptly inform the court when a conflict arises.
- Importantly, in cases of actual conflicts adversely affecting performance, prejudice to the client is presumed, and relief may be granted without further showing.
- Globally, leading bar associations, such as the American Bar Association (ABA) and the Solicitors Regulation Authority (SRA) in the UK, recognize the dangers of joint representation in criminal defence and either prohibit or heavily restrict the practice.
V. The Allowed, Acceptable, Alternative Approach
Avoiding multiple representation does not mean lawyers cannot collaborate. In fact, coordination between defence teams can strengthen strategy, provided each accused has independent representation.
- Collaborative defence: Lawyers representing different accused may coordinate to identify common legal issues, share resources, or align strategies on procedural aspects.
- Respecting privilege: Any collaboration must respect the confidentiality of each client's instructions and communications.
- Independent advice: Most importantly, each accused receives advice tailored to their own legal exposure, risk profile, and personal interest from their individual, respective advocates.
VI. Conclusion
The practice of representing multiple accused in criminal matters may appear efficient or convenient, but it undermines the very foundations of ethical legal practice. Especially in economic offences, where stakes are high and interests diverge rapidly, joint representation creates unavoidable conflicts.
Some practical takeaways:
- One lawyer cannot serve two masters. If multiple accused are represented by the same lawyer, there is a high chance of conflict of interest.
- Independent lawyers mean stronger defence. Each accused gets tailored advice and strategy, without compromise.
- Collaboration is allowed, not common representation. Lawyers for different accused can coordinate, but each accused must have their own counsel.
- Courts have flagged the risk. Indian and international judgments have warned against joint representation, as it can affect the fairness of trial.
The better course is clear: each accused should have independent legal representation. Lawyers may collaborate, but they must not compromise their fundamental duty of loyalty to their client.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
