‘New York v. Allah’

As noted, conflicts may or may not require an attorney’s withdrawal. In most cases informed consent and waiver after inquiry by the court in a criminal case or by counsel in a civil case can avert the problem. The New York Court of Appeals in New York v. Allah2 in the context where defense counsel was not present at a critical stage of the proceeding and one of the other counsel was asked to undertake the additional representation, held:

Where codefendants are represented by the same attorney, the trial court must inquire, on the record, whether each defendant has an awareness of the potential risks involved in that course and has knowingly chosen it . . . . Only after sufficient admonition by the trial court of the potential pitfalls of joint representation can it be said that a defendant’s right to the effective assistance of counsel is adequately safeguarded . . . . If such admonition appears on the record, appellate courts can determine whether a defendant’s decision to pursue joint representation is an informed one.

. . .

Nor does the record indicate that the court, by proper inquiry, took the necessary precautions to ensure that the defendant perceived the potential risks inherent in joint representation by counsel for the codefendants. Thus, we cannot conclude that defendant’s decision to pursue joint representation in this case was an informed one. Respondent’s argument that defendant consented to the joint representation in open court is unavailing.


‘United States v. Poston’

Criminal and civil cases as far as the issue of conflicts arising from joint representation are significantly different with respect to the degree of care that must be extended in a criminal case as opposed to a civil matter, nonetheless, there has to be care and concern shown in every context. The standards, however, utilized in a criminal context can be adapted in all civil contexts including arbitrations. In United States v. Poston3 the U.S. Court of Appeals for the Eighth Circuit articulated the standards for informed consent and effective waiver as follows:

[The] district court should address each defendant personally and forthrightly advise him of the potential dangers of representation by counsel with a conflict of interest. The defendant must be at liberty to question the district court as to the nature and consequences of his legal representation. Most significantly, the court should seek to elicit a narrative response from each defendant that he has been advised of his right to effective representation, that he understands . . . the details of his attorney’s possible conflict of interest and the potential perils of such a conflict, that he has discussed the matter with his attorney or if he wishes with outside counsel and that he voluntarily waives his Sixth Amendment protections . . . . It is, of course, vital that the waiver be established by “clear, unequivocal and unambiguous language.” . . . Mere assent in response to a series of questions from the bench may in some circumstances constitute an adequate waiver, but the court should nonetheless endeavor to have each defendant personally articulate in detail his intent to forgo this significant constitutional protection. Recordation of the waiver colloquy between defendant and judge will also serve the government’s interest by assisting in shielding any potential conviction from collateral attack, either on Sixth Amendment grounds or on a Fifth or Fourteenth amendment “fundamental fairness” basis.

. . .

The defendant must voluntarily and with full knowledge of the consequences decide on dual representation. The court should address each defendant personally and advise him of the potential danger of dual representation. The defendant should have an opportunity and be at liberty to question the trial court on the . . . nature and consequences of dual representation and the entire procedure should be placed on the record for review.

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