When two or more people are charged with the same crime, they’re considered “codefendants.” They may be tried together, or they may have separate trials. Either way, the same lawyer may represent the codefendants. This kind of “joint representation” isn’t necessarily a problem—unless the codefendants have conflicting interests that make it hard for the attorney to mount an equally effective legal defense for all of them. When that’s true, joint representation could violate a codefendant’s constitutional right to effective assistance of counsel, which is part of the Sixth Amendment’s guarantee of a fair criminal trial.

What Kinds of Conflicts Make Joint Representation a Violation of Sixth Amendment Rights?

Criminal defendants are entitled to their lawyers’ undivided loyalty. An actual conflict of interest can come up in joint representation when codefendants have different needs and interests, and the attorney can’t defend one of them without hurting the other.

A few examples may help explain how codefendants may have conflicting interests:

• One man is charged with selling illegal drugs, and his codefendant is charged with buying them. The buyer accepts a plea agreement that allows him to avoid trial if he describes who sold him the drugs. Because the plea deal would hurt the alleged seller’s defense, the codefendants’ interests are different.
• One attorney represents two women charged with conspiracy to commit a crime. At trial, the attorney defends one codefendant by having her blame the other woman. The attorney’s trial strategy is an actual conflict of interest that hurts the other codefendant.
• Two men are charged in a gang assault. The first man cooperates with the prosecution and testifies against his codefendant at trial. At his sentencing hearing, his lawyer argues for a lighter sentence because of his cooperation. The same attorney represents the second codefendant on his appeal, arguing that the court should reject the first codefendant’s testimony as unbelievable. Because the attorney’s strategies for the two codefendants conflict, the joint representation is an actual conflict of interest.

How Can You Object to Joint Representation?

If you’re facing possible jail time for criminal charges but can’t afford to hire your own lawyer, the court will usually appoint a public defender or a private lawyer to represent you for free. You can object if the court appoints the same attorney to represent you and a codefendant. Once you’ve objected, you should have the opportunity to show that a potential conflict of interest with your codefendant jeopardizes your right to a fair trial. The court must investigate the potential conflict in a joint representation once you’ve objected.

What if you didn’t object to joint representation before or during your trial, but you later discover a conflict in your lawyer’s defense of you and your codefendant? You may claim that your conviction resulted from ineffective assistance of counsel, but you’ll have to prove that there was an actual conflict of interest—not just a potential one—and that it negatively affected your lawyer’s defense in your case. You should speak to an experienced criminal defense attorney about how to file a claim based on ineffective assistance of counsel.

When Codefendants Waive a Conflict in Joint Representation

Under rules that apply in federal criminal cases, courts must look into the possibility of a conflict in all cases involving joint representation, even if the codefendants don’t object. The courts must also explain to codefendants that they have a right to the effective assistance of counsel, including representation by separate attorneys. Many states also have similar rules.

Even if joint representation presents a conflict of interest, codefendants may still want to be represented by the same attorney. They may prefer that particular lawyer, or they might believe that sharing an attorney will save money on legal fees. After the court explains the risks involved, the codefendants may sign a waiver of their right to the effective assistance of counsel without conflicts. Despite a waiver, however, the judge may disqualify the attorney from one case if there’s serious potential for conflict.

If you’re considering signing a waiver to allow joint representation with another codefendant, you should make sure that you thoroughly discuss the risks with your lawyer, so that you understand how joint representation might affect your defense.