1 Introduction
1.1 Who should read this practice note?
Criminal defence solicitors.
1.2 What is the issue?
This practice note concerns the particular way in which criminal defence solicitors need to consider the avoidance of conflicts of interest when considering whether it is appropriate to act for more than one suspect or defendant, who are being investigated for or charged with related criminal proceedings.
Following publication of the SRA Code the Law Society wishes to remind practitioners that the guidance on this issue previously contained in the Solicitor's Code of Conduct 2007 is unchanged.
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1.3 Professional conduct
The following sections of the SRA Code are relevant to this issue:
Principle 4 in the Introduction to the SRA Code
- Chapter 3 on conflicts of interests
1.4 Status
Practice notes are issued by the Law Society for the use and benefit of its members. They represent the Law Society's view of good practice in a particular area. They are not intended to be the only standard of good practice that solicitors can follow. You are not required to follow them, but doing so will make it easier to account to oversight bodies for your actions.
Practice notes are not legal advice, nor do they necessarily provide a defence to complaints of misconduct or of inadequate professional service. While care has been taken to ensure that they are accurate, up to date and useful, the Law Society will not accept any legal liability in relation to them.
For queries or comments on this practice note, contact the Law Society's Practice Advice Service.
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1.5 Terminology
Must- A specific requirement in legislation or of a principle, rule, outcome or other mandatory provision in the SRA Handbook. You must comply, unless there are specific exemptions or defences provided for in relevant legislation or the SRA Handbook.
Should
- Outside of a regulatory context, good practice for most situations in the Law Society's view.
- In the case of the SRA Handbook, an indicative behaviour or other non-mandatory provision (such as may be set out in notes or guidance).
These may not be the only means of complying with legislative or regulatory requirements and there may be situations where the suggested route is not the best possible route to meet the needs of your client. However, if you do not follow the suggested route, you should be able to justify to oversight bodies why the alternative approach you have taken is appropriate, either for your practice, or in the particular retainer.
May- A non-exhaustive list of options for meeting your obligations or running your practice. Which option you choose is determined by the profile of the individual practice, client or retainer. You may be required to justify why this was an appropriate option to oversight bodies.
SRA Code - SRA Code of Conduct 2011
2007 Code - Solicitors’ Code of Conduct 2007
OFR - Outcomes-focused regulation
SRA - Solicitors Regulation Authority
IB -indicative behaviour
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2 SRA Principles
There are ten mandatory principles which apply to all those the SRA regulates and to all aspects of practice. The principles can be found in the SRA Handbook.
When thinking about how to meet the outcomes in chapter 3 in the Code, you must consider the principles which apply across the Handbook including the Code. You should always bear in mind what the ten principles are and use them as your starting point when implementing the outcomes.
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3 Avoiding conflicts between co-defendants in criminal cases
In publicly funded cases, regulations require that one litigator be appointed to act for all co-defendants in a legal aid case unless there is, or is likely to be, a conflict of interest (Reg 16A of the Criminal Defence Service (General) (No 2) Regulations 2001).
The purpose of this is to ensure economy in the use of public funds by ensuring that a single litigator represents co-defendants where it is proper to do so.
The professional conduct obligations which deal with conflicts of interests have always prevented a solicitor or firm acting for two or more clients where there is a conflict or significant risk of a conflict arising between the interests of two or more clients.
SRA Code chapter 3, outcome 3.5 sets out the prohibition on acting in conflict situations and requires that you do not act if there is a client conflict, or a significant risk of a client conflict, unless the circumstances set out in Outcomes 3.6 and 3.7 apply (which are not relevant in this context).
You can act, however, for co-defendants where there is no client conflict or no significant risk of a client conflict. The difficulty often lies, however, in spotting potential conflict and deciding whether it is sufficiently real to refuse instructions.
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3.1 Deciding if there is a conflict
Your starting point should always be your fundamental professional obligation - set out in SRA Principle 4 - that you must act in the best interests of each client.
Can you discharge this obligation to each client?
This means first asking each client if they are aware of any actual or potential conflict between them and then, if they indicate that there is no such conflict, asking yourself whether you feel there are any constraints on the advice you would want to give to one client, or on the action you would want to take on that client's behalf, which are likely to arise because you act for another co-defendant.
A conflict of interest arises wherever there is a constraint of that sort, for example where it is in the best interests of client A:
- to give evidence against client B;
- to make a statement incriminating client B;
- to implicate client B in a police interview;
- to provide prejudicial information regarding client B to an investigator;
- to cross-examine client B in such a manner as to call into question his or her credibility;
- to rely upon confidential information given by client B without his or her consent; or
- to adopt tactics in the course of the retainer which potentially or actually harm client B.
If these obligations actually come into conflict when acting for two or more clients you must cease to act for one and often both.
This can cause considerable disruption and expense, which is why SRA Code Chapter 3 on Conflicts of interest requires that you should not accept instructions to act if there is a significant risk of this happening.
The principles that apply on continuing to act after ceasing to act for another client are set out later in this practice note.
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3.2 At what stage of the criminal case does the issue of conflict arise?
Many criminal clients will, of course, have retained you at the police station prior to a police interview and are thus not, at that stage, defendants.
The obligations referred to above apply at this early stage, and you must be satisfied that accepting instructions on behalf of a client prior to a police interview does not place you in conflict with another client who is also to be interviewed.
In order to assess whether you can act for both clients it is important that you do not interview the clients together and that you get instructions which are as full as possible from the first client before you have any substantive contact with the second client.
However, never let the police deter you from seeing the second client because they think there is a conflict – that decision must be yours.
A further consideration when taking instructions at the police station, especially out of office hours when an immediate conflict check is not possible, is that the firm may already act for another defendant in that matter or information obtained at the police station may be relevant to another client on an unrelated matter.
For example, the firm may be acting in divorce proceedings for a wife where violence is alleged. Information that her husband has been charged with an offence involving violence would be relevant and may make it impossible to continue acting for the wife. This highlights the importance of carrying out a conflict check at the earliest opportunity.
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3.3 Assessing existing conflict and the risk of conflict arising in the future
When considering accepting instructions from more than one client in the same matter you need to assess not only whether there is a conflict at the outset, but whether events are likely to arise which will prevent you from continuing to act for one or both at a later stage in the proceedings.
In almost all cases there will be some possibility of differences in instructions between the clients but the rules do not prevent you acting unless the risk of conflict is 'significant'.
Assessing the risk is often not easy. Importantly, where you have accepted instructions from co-defendants you should remain alert to the risk of conflict arising as the case progresses.
3.3.1 Is there an existing conflict?
When considering whether there is an existing conflict there are obvious indicators, such as whether the clients have differing accounts of the important relevant circumstances of the alleged crime, or where one seems likely to change his or her plea.
There are also less obvious indicators. These would include situations where there is some clear inequality between the co-defendants which might, for example, suggest that one client is acting under the influence of the other rather than on his or her own initiative. Another indicator is that the co-defendants are related to each other, or are living together.
If you are acting for both this may make it difficult for you to raise and discuss these issues equally with them. In trying to help one, you might be undermining the other.
If you believe you are going to be unable to do your best for one without worrying about whether this might prejudice the other you should only accept instructions from one.
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3.3.2 Is there a significant risk a conflict may develop in future?
The risk of future conflict can be an even more difficult issue to assess. It may be that you have two clients who are pleading not guilty and who are apparently in total agreement on the factual evidence.
If they are both found guilty, you need to consider at the outset whether you would be able to mitigate fully and freely on behalf of one client without, in so doing, harming the interests of the other.
It may be that one has a long list of convictions and is considerably older than the other. If so, it may be that the younger client with a comparatively clean record was led astray or pressurised into committing the crime and would want you to emphasise this in mitigation.
If there is a significant risk of this happening you should not accept instructions from both.
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3.4 Continuing to act for one client after ceasing to act for another client
Even where care is taken when accepting instructions from more than one client in the same matter there will inevitably be situations where a conflict subsequently arises.
This will commonly happen where one defendant changes his or her plea, or evidence. A decision will then have to be taken as to whether it is proper to continue to represent one client or whether both will have to instruct new firms.
In making this decision you need to consider whether in the changed circumstances your duty to disclose all relevant information to the retained client will place you in breach of your duty of confidentiality to the other client.
In other words, you need to decide whether you hold confidential information about the departing client which is now relevant to the retained client.
If you do have such information then you must not act for either client.
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3.5 Pressure to continue acting despite apparent conflict
You may find that you face pressure from the police (at the police station) or from the court to continue acting even in the face of an apparent conflict of interest.
Often these pressures are driven by the delay and inconvenience that may arise if you have to cease to act. However, you must not act for both clients in those circumstances.
The Criminal Defence Service regulations are not intended to put solicitors in a position where they are asked to act contrary to their professional responsibilities.
If asked by the court for your reasons why you cannot act for both defendants, you must not give information which is protected from disclosure by legal professional privilege.
This will normally mean that you must say only that it would be unprofessional for you to continue to act.
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3.6 Conflict cannot be resolved by instructing another to undertake advocacy
For the avoidance of doubt, you cannot resolve a conflict by instructing another firm or counsel to undertake the advocacy on behalf of one client. Neither can you pass one of the clients to another member of your firm. The rules make it quite clear that your firm cannot act for clients whose interests conflict.
Any decision to act, or not to act, for co-defendants should be recorded with a brief note of the reasons.
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4 More information
4.1 Practice Advice Service
The Law Society provides support for solicitors on a wide range of areas of practice. Practice Advice can be contacted on 0870 606 2522 from 09:00 to 17:00 on weekdays or email practiceadvice@lawsociety.org.uk
4.2 Professional ethics helpline
The Solicitors Regulation Authority's professional ethics helpline for advice on conduct issues.
4.3 Relevant secondary legislation
Regulation 16A of the Criminal Defence Service (General) (No 2) Regulations 2001
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