Question
of the week Question of the week

Curious. Interesting. Informative.

25 May 2018

Beware the cut throat defence

Litigation
Federal

Asked

Litigation – Criminal Law - Three defendants – Conflict of interest

Dear Mentor

There are three defendants in a misappropriation matter. I am appearing for husband and wife. Ex-wife needs me to act for her as well. Will this be possible? Any conflict of interest issue?

Thanks

Answered

Thanks for the question.

It is possible. The existence of any conflict depends at all times on their instructions. See rule 11 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015.

As long as all three defendants’ instructions are consistent, then there is no conflict and you have no problem acting for all three. However, there is always the potential for conflict if their instructions change.

For example, if they are all pleading not guilty on the basis that the alleged misappropriation never happened, or that it was perpetrated by another person entirely, then there is no conflict and little likelihood of conflict. Likewise, if they are all pleading guilty on the basis of a joint criminal enterprise, then there is no conflict.

However, if their instructions change – if one of them suddenly ‘rolls over’ on the other two and wants to plead guilty and give evidence against the other two; or even if that person instructs you that the other two forced him or her at gunpoint to commit the crime and therefore wants to maintain a plea of not guilty but mount a defence of duress – then a conflict will arise. In that case you would need to cease to act for the divergent client, although depending on what you have been told by that person, you may need to cease acting for all three.

Even if they are all pleading guilty, conflict could arise where one wants to argue their criminality was less than the others and to rely on a version which has them as the minor player, despite one or both of the others saying the opposite, or saying that they were all equally involved. Again, the instructions might not start out that way but could change as the matter proceeds.

If you feel that there is no conflict and little chance of any potential conflict materialising, and you propose to act for them all, then you should obtain written instructions which clearly states their understanding and acceptance of the basis of you doing so – namely that their instructions are consistent and remain that way – and you may have to cease acting for one or more of them if those instructions change.

If there is a live prospect of potential conflict but you still want to act for all three, then the risk can be further managed to some extent by having separate counsel for each defendant, especially if they are pleading not guilty. That way counsel will be able to immediately flag any conflict as it arises and, if you need to cease acting for any of them, another solicitor can step in and instruct the same counsel so as to ensure continuity and not de-rail any trial. If that is proposed, it should also be spelled out and confirmed in your written instructions.

Also, in the circumstances of your question, if you acted for the husband in respect of any Family Law proceedings involving the ex-wife, there may be a conflict if you have information, such as financial information, about her that you only gained by acting against her. Again, this will only become an issue if their instructions on the criminal matter diverge. It is another reason to get written instructions that the parties understand the potential for conflict and consent to you acting regardless.

Regards,

Mentor