Co-defendants whose accounts conflict: acting for both (Code 6.2 and 6.5)
A firm represents Leon Carter and Mason Reid, who are jointly charged with robbery. At first both deny any involvement. In a later private consultation Leon tells the firm that Mason planned the robbery and carried the knife, and that he intends to say so in his defence statement and at trial. Mason maintains a complete denial and has given the firm confidential details of his own account.
Which of the following best describes the firm's position?
Choose one answer to see the reasoning.
Worked answer
Correct answer B: It cannot act for both; it may keep one only if it holds no material confidential information of the other or the para 6.5 conditions are met.
THE RULE TO REMEMBER
A firm cannot act for co-defendants whose defences conflict; it may keep one only if it holds no material confidential information of the other or the para 6.5 conditions are met.
Co-defendants whose accounts conflict: acting for both (Code 6.2 and 6.5)
Paragraph 6.2 of the Code prohibits acting where there is a conflict of interest or a significant risk of one, unless the clients have a substantially common interest or are competing for the same objective. Leon now intends to blame Mason, who denies everything. The firm would have to challenge Mason's account for Leon while defending Mason against Leon's allegations. That is a direct conflict, and neither exception applies. The firm cannot continue to act for both. Once it stops acting for one, that person becomes a former client whose confidential information the firm holds. Under para 6.5, the firm may then act for the other, whose interests are adverse, only if effective measures mean there is no real risk of the information being disclosed, or the former client gives informed written consent. Mason has given the firm confidential details of his account, and Leon's information is equally material, so the firm is likely to have to stop acting for both.
Why A is wrong: Their defences are now directly opposed: Leon's defence blames Mason, so there is no strong consensus on how to achieve their aims.
Why C is wrong: Consent is only a condition of a para 6.2 exception, and no exception applies to defendants running defences against each other.
Why D is wrong: Separate fee earners do not create an exception to the conflict; the firm would still be acting for clients with opposing interests.
Why E is wrong: The order of instructions is irrelevant; the firm holds Leon's confidential information too, so it can keep Mason only if the para 6.5 conditions are met.
A little more practice done.
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