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  • James R. Wronko

Can One Attorney Represent Two Defendants in the Same Criminal Case?

The answer is a surprising yes! In New Jersey, if certain requirements are met, the same attorney can represent two people in one case. I do not recommend that anyone do this. You are always better off with multiple attorneys who owe full loyalty to one client.

This issue has recently attained national exposure in the case of the State of Idaho v. Lori Vallow-Daybell and Chad Daybell. Vallow and Daybell are charged primarily with felony child abandonment. The case has attracted national attention as it was recently featured on a Dateline NBC special. Lori Vallow’s children are missing and presumed dead and the couple is the only suspects.

Initially three attorneys were representing the two defendants, but recently two of the three withdrew from the case for unknown reasons.

In New Jersey, Court Rule 3:8-2, states, “No attorney or law firm shall be permitted to enter an appearance for or represent more than one defendant in a multi-defendant indictment without securing permission of the court. The defendants can both waive their right to individual counsel on motion to the trial court. The New Jersey Supreme Court has held that the motion must be made in the defendants’ presence and there is a strong presumption against waiver,” and “in no event is waiver to be found from a silent record.” State v. Bellucci, 81 N.J. 531 (1980). The court is also not obliged to accept a waiver if the client does not fully understand the consequences of the waiver; or it would lead to an unjust result. State v. Carreaga, 249 N.J. Super. 129 (Law Div. 1991). In particular, dual representation is more problematic when it involves two family members.

In State v. Land, 73 N.J. 24 (1977) the court permitted a waiver of a potential conflict. If there exists an actual conflict between co-defendants, our jurisprudence demands more. To protect a defendant’s right to effective assistance of counsel, the court must reject a waiver and prevent dual representation, State ex rel. S.G., 175 N.J. 132, 139-40 (2003). “The Sixth Amendment right to effective assistance of counsel... requires a defense attorney’s representation to be ‘untrammeled and unimpaired.’” quoting State v. Bellucci, “An attorney’s divided loyalty can undermine a defendants’ Sixth Amendment right to effective assistance of counsel.” United States v. Moscony, 927 F.2d 742, 748 (3d Cir. 1991) and Wheat v. United States, 486 U.S. 153, 162 (1988). “Ineffectiveness is...presumed when counsel ‘actively represented conflicting interests.”’ United States v. Cronic, 466 U.S. 648 (1984) (quoting Cuyler v. Sullivan, 446 U.S. 335, 350 (1980)); State v. Miller, 216 N.J. 40, 63 (2013).

In State v. Land, the Supreme Court noted “the inherent difficulty in representing more than one defendant in a criminal proceeding and promoting the interests of each, but not to the detriment of either. The court noted the infirmity of dual representation.

However, the court held that if there is a knowing and intelligent waiver, an attorney could represent both a husband and wife as co-defendants, or any potential 2 co-defendants.

The risk and problems are many. A simple example is a couple riding together in an automobile who are charged with possession of drugs located in the back seat. Their interests are not identical as each could argue that the drugs belonged to the other. How could an attorney argue on behalf of the husband, that the drugs belonged to the wife, who is also his client.

In a case such as Vallow and Daybell, where the police are investigating the missing children, and presumably conducting a murder investigation, the conflict is almost unimaginable. For example, what is Mr. Daybell wanted to cooperate and disclose the location of the children. How could an attorney arrange that with the result that his other client, Lori Vallow would be charged with homicide. In reality he cannot.

My advice to co-defendants and attorneys alike is to have an attorney represent each of the defendants so everyone’s role is clear.

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