In R. v. Kim the Court of Appeal found that defence counsel was in an impossible conflict in representing two co-accused. It thus struck out the Appellant's guilty plea and ordered a new trial. The case is an exemplar for defence lawyers of how not to represent co-accused. Conflicts are extremely common when co-accused are represented by a single lawyer (or by members of the same firm or lawyers sharing office space). Sometimes even a waiver of conflict after independent legal advice cannot remove the taint. In Kim, there was no ILA and no waiver, so the possibility that the problem could be so solved was not considered.
How did the issue arise, and why was the conflict so obvious?
Defence counsel represented six co-accused, all of whom were arrested at the Vancouver International Airport. The Appellant Mr. Kim, as well as four of the other co-accused, were carrying heroin. The sixth co-accused, Mr. Choi, was carrying no heroin but did have possession of over $6,000 in cash. The Crown theory was that the Appellant, as well as the others who were carring drugs, were mules while Choi was an overseer. Defence counsel obtained bail for Choi, and subsequently obtained the Appellant's release as well.
Oddly, defence counsel had little recollection of the details surrounding the movement of monies used to post bail and pay the retainer. It appears from the judgment, however, that Choi or an associate of Choi's may well have paid the Appellant's legal fees and that Choi provided the $10,000 cash used to post the Appellant's bail. The case was resolved when the five mules entered guilty pleas and received sentences of three years (plus one year dead time). The charges against Mr. Choi were stayed, as the Crown ultimately concluded that the case could not be proved against him.
The conflict in Kim arose because on the facts there was a real possibility that, if properly advised, the Appellant would have instructed his counsel to seek a deal with the Crown whereby he would receive a lesser sentence in return for providing information or testimony against Choi. Indeed, in his affidavit material and testimony before the Court of Appeal the Appellant indicated that Choi had recruited him and threatened his life and the lives of his family unless he went through with the scheme. He also said that Choi told him that the contraband was ground bull horn for which he would receive only a fine if caught. A sentence of two years would have allowed the Appellant, who was a landed immigrant, to avoid deportation, something that he was eager to do. A sentence of three years did not.
The Court of Appeal had no trouble finding that a conflict existed and ordered a new trial. The Appellant may well have wanted to make a deal with the Crown. He may have wanted to run the duress defence, and to say that in any event Choi had misrepresented the contents of the packages. Defence counsel could not go down any of these paths without harming his other client, Choi. The situation was aggravated by the fact that the Appellant was not terribly proficient in the English language and was somewhat at sea in dealing with the criminal justice system. He was especially dependent upon counsel in these circumstances and was certainly not equipped to recognize and extricate himself from the hopelessly conflicted retainer.
Though never expressly stated by the Court of Appeal, the fact that Choi or his associates were likely paying for the Appellant's defence leads to the rather unsavoury implication that counsel acted in the interests of the client who was paying the bills, at the expense of his other client's best interests. On the other hand, the Court went out of its way to state that defence counsel's ethics and competence were not in question, and that he did no more than err in assuming that the Appellant concurred in the course of conduct advised and had given proper instructions. It might have been better had the Court provided some of the facts supporting this conclusion. It is hard to see how it can be justified on the facts set out in the judgment.
Is it always inadvisable for a single counsel to represent co-accused? No. But the risks often outweigh the benefits, and some courts warn against ever embarking down this road. At a minimum, counsel must ensure that each client has ILA and provides a complete waiver, otherwise the enterprise will be doomed. And, as Kim so clearly shows, it is no answer to say, as counsel suggested on the appeal, that the conflict only arises once the matter gets to trial. Conflicts between co-accused can arise from the moment the retainer starts. Waiting until trial to address the problem is not an acceptable response. As Mr. Gardiner says to Elizabeth Bennett, "any way you look at it, the temptation's not worth the risk".
