My Cousin Vinny: The Perils of Joint Representation

Today’s post is our contribution to Abnormal Use’s My Cousin Vinny 20th anniversary celebration. Although it doesn’t have anything to do with comic books or superheroes, we still recommend giving it a watch. It’s a comedy, but it’s actually one of the more accurate representations of trial procedure in a film (which isn’t necessarily saying a lot). If you haven’t seen it, the Wikipedia article has a thorough plot synopsis, but we recommend buying a copy, since it really is a pretty good movie.

Since the movie has been around for 20 years, a lot of ink has been spilled on it, but there’s at least one issue that isn’t often discussed, probably because it’s only implicit in the film. The issue is that the defendants, Bill and Stan, are represented jointly by Bill’s cousin Vinny, but joint representation is fraught with ethical issues, especially in a criminal case. (For those looking for some kind of connection to comic books, I’ll note that a lot of supervillains work in groups and might find themselves in a joint representation situation. The same ethical issues apply.)

Simultaneous representation of clients whose interests may conflict is a common enough issue that there’s a rule especially for it.  ABA Model Rule of Professional Conduct 1.7:

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or

(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing.

The movie takes place in Alabama, and its rule is similar. Notably, the Alabama rules were adopted effective January 1, 1991, so it’s conceivable that the rule applied during the time in which the film is set.

The situation in the movie is an example of paragraph (a)(2): “there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client.”  What exactly does the rule mean by that?  The official commentary goes into more detail:

A conflict may exist by reason of substantial discrepancy in the parties’ testimony, incompatibility in positions in relation to an opposing party or the fact that there are substantially different possibilities of settlement of the claims or liabilities in question. Such conflicts can arise in criminal cases as well as civil. The potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one codefendant.

Rule 1.7 Comment 23 (emphasis added). So it seems very likely that the rule applies in this case.

Paragraph (b) describes the circumstances under which a client can be represented despite a conflict, but unfortunately they aren’t met here. It’s far from his worst ethical lapse (repeatedly lying to a judge, anyone?), but Vinny almost certainly cannot reasonably believe that he “will be able to provide competent and diligent representation to each affected client.”  That is, he might believe it (in fact he nearly says as much), but his belief isn’t reasonable given the seriousness of the case and his lack of experience and knowledge. Nor does the movie contain any indication that Bill and Stan gave informed, written consent, although I might excuse that omission on the grounds that it would be a relatively boring detail.

So why exactly is the potential for conflict of interest so grave in a criminal case?  There are lots of reasons, but a major one is that codefendants may be sorely tempted to point the finger at each other in exchange for favorable treatment (e.g. immunity or a better plea bargain). Imagine in this case if Stan (accused of being an accessory to murder) claimed that it was all Bill’s idea and that Bill had kidnapped him after committing the murder.  That’s a fine defense for Stan, but it puts Bill on the hook for both murder and kidnapping. As their attorney it would be impossible for Vinny to be loyal to both Bill and Stan in that situation. The conflict would be further complicated by his family relationship to Bill.

Another example: neither Bill nor Stan waived their Fifth Amendment rights and took the stand.  What if the prosecution had offered immunity to whichever one testified against the other?  It would be virtually impossible for Vinny to advise his clients fairly.

As it happens the prosecution didn’t offer any deals, and both defendants agreed with Vinny’s strategy, so there wasn’t a serious conflict. And, for what it’s worth, Mitchell Whitfield (the actor who played Stan) says in an interview with Abnormal Use that he doesn’t think Stan would have turned state’s evidence if a deal had been offered: “[L]et’s say it was different, and there was something that I had that I could have used to sort of say, “Oh, look, he’ll get five years and they’ll try him.” No.  Never.  I’m neurotic, but I’m not a narc.”

It’s also hard to fault the writers for not wanting to introduce the complexity of two attorneys (with the exception of the brief appearance of the public defender).  But in many real-world criminal cases it’s a common strategy to turn co-defendants against each other, which is why this rule is so important.

Vinny’s joint representation of Bill and Stan was ethically problematic, even if it was ultimately only a theoretical problem.  In my opinion that makes it all the more worthwhile to examine it, much like the legal issues implicit in comic books. I also don’t think one more ethical breach hurts the movie, since Vinny’s inexperience and ethical problems are essential to the plot.  My Cousin Vinny holds up pretty well even when watching it critically. If you haven’t seen it, I recommend it.

12 Responses to My Cousin Vinny: The Perils of Joint Representation

  1. Wow. That’s interesting. I never thought about that. But hold on. Don’t people have the right to chose their own attorney? If two people want the same attorney can the courts force one of the clients to choose another attorney?

    I haven’t seen the movie for a long time but I remember there _was_ another attorney representing Stan but Stan fired him. From the synopsis: “The trial … opens with Vinny representing his cousin and the public defender representing Stan. Despite some further missteps, including wearing a gaudy secondhand tuxedo to court and sleeping through Trotter’s opening statement, Vinny shows that he can make up for his ignorance and inexperience with an aggressive, perceptive questioning style. While the public defender is shown to have a debilitating stammer, Vinny quickly and comprehensively discredits the testimony of the first witness. Billy’s faith is rewarded, and Stan develops newfound respect and confidence for Vinny, firing the public defender.”

    So, in this case, would Stan be obliged to keep the public defender since he started the trial with him? It was Stan firing his defense attorney that created the conflict of interest.

    • People do have a right to choose their attorney, and that’s a very important right. For example, it’s why non-compete agreements generally aren’t valid for attorneys. “Other states have almost uniformly shared New Jersey’s dim view of restrictive covenants in employment agreements among lawyers. … Disciplinary opinions similarly find that restrictive covenants prohibiting legal representation violate the ethical rules.” Jacob v. Norris, McLaughlin & Marcus, 128 N.J. 10, 20-21 (1992).

      That’s also why the rules allow for the conflict to be waived in some cases, though only with informed written consent from all of the affected clients. But the client’s wishes are not absolute. For example, the lawyer must still have a reasonable belief that he or she can represent the clients competently despite the conflict. A client generally can’t force an unwilling attorney to represent them, although an attorney can be obligated to continue to represent a client (e.g. an attorney who tries to quit in the middle of a trial without very good reason must seek permission from the judge, who may not give it).

      In any case, the synopsis is slightly misleading. Vinny had already represented both Bill and Stan at the arraignment, and his performance there led Stan to contact the public defender. So the conflict had already arisen by the time of the trial.

  2. Assuming that Vinny obtained written waiver of the potential conflict off-screen as required by rule 1.7, I think he’s ethically in the clear. The rule advises against representing multiple codefendants, but doesn’t prohibit it, and in this case, the codefendants shared the same defense (actual innocence). There are a number of situations that could have created an actual conflict, but the prosecutor wasn’t offering any deals, believing that a slam-dunk conviction was in the air.
    (Obviously, that written waiver obtained off-camera also noted that if an actual conflict DID arise, both of the defendants would need new representation… but until such a conflict does materialize, the joint representation can/could/did continue.)

    • I basically agree: “As it happens the prosecution didn’t offer any deals, and both defendants agreed with Vinny’s strategy, so there wasn’t a serious conflict.” But Vinny’s inexperience and early incompetence makes his decision to represent two people accused of capital murder unethical, so he’s not really in the clear.

      In a sense all’s well that ends well; neither Bill or Stan is going to file an ethics complaint. But it could easily have gone quite badly. For example, if Vinny hadn’t lucked into discovering that he could get copies of the prosecutor’s files (and if Mona Lisa hadn’t discovered the disclosure rule), his whole strategy would likely have fallen apart.

      • James Pollock

        Being inexperienced isn’t per se unethical — every lawyer is inexperienced until they actually do it (whatever “it” is, whether it’s drafting a memo or representing a couple of kids in a capital case.) It WOULD be unethical for him not to disclose his inexperience to his client, and even more unethical to actively represent that he had experience which in fact he did not, but Vinny DOES disclose his, um, irregular path to bar membership. The clients still chose him to represent him..

      • It’s true that inexperience is not normally a problem, but this was a capital case. In many states, even retained counsel in a capital case must have significant experience. For example, the Pennsylvania rules of criminal procedure require that counsel “have served as lead or co-counsel in a minimum of 8 significant cases that were given to the jury for deliberations. … A ‘‘significant case’’ for purposes of this rule is one that charges murder, manslaughter, vehicular homicide, or a felony for which the maximum penalty is 10 or more years.”

        Now, Alabama only requires experience in the case of appointed attorneys in capital cases, so Vinny’s inexperience may have been less of a problem in that state, but the general principle stands.

        Furthermore, while inexperience is not necessarily an ethical problem, incompetence very much is. ABA Model Rule 1.1: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Vinny did not demonstrate this, particularly early on.

        It is true that, as the commentary to the rule states, “A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar. A newly admitted lawyer can be as competent as a practitioner with long experience.”

        However, the commentary goes on to point out that “A lawyer can provide adequate representation in a wholly novel field through necessary study. Competent representation can also be provided through the association of a lawyer of established competence in the field in question.” Vinny did not perform the necessary studying, or at least not enough, nor did he seek help from a lawyer of established competence in the field.

        The point is that, even if the conflict was only a theoretical problem, Vinny’s inexperience and early incompetence were still significant ethical breaches, and he should have declined to take on the case.

      • James Pollock

        Does Alabama require lawyers admitted pro hac vice to retain local counsel?

      • Martin Phipps

        I just read an interview with the writer of My Cousin Vinny. According to the script, Vinny was dyslexic and that was why he failed the bar exam six times and why his wife did the reading for him. If he fails to disclose to his clients that he has a learning disability is this unethical or is it enough that he admitted to failing the bar six times?

      • Does Alabama require lawyers admitted pro hac vice to retain local counsel?

        That’s a good question. It does. “To appear pro hac vice, a foreign attorney must associate in that cause an attorney who is a member in good standing of the Alabama State Bar (local counsel).”

        If he fails to disclose to his clients that he has a learning disability is this unethical or is it enough that he admitted to failing the bar six times?

        That’s an interesting question. The answer appears to be no. David B. Goldstein, Ethical Implications of the Learning-Disabled Lawyer, 42 S. Tex. L. Rev. 111 (2000) (“I do not believe that a learning disabled attorney has to reveal her status”). As Goldstein points out, the Model Rules don’t contain any obligation to disclose disability status, prior disciplinary actions, poor academic performance in law school, etc. Of course, if a client asked about any of these things then that would be different.

  3. It was very interesting
    I am Fatemeh Ghanbari
    Attorney and university professor
    Of Iran

  4. I don’t see a problem in this situation for Vinny to represent both defendants because as the audience knows they are both innocent. I think it’s unlikely to the point of impossibility that either would take any offer to flip on the other for a lighter sentence as they would be admitting to a crime neither commited. Furthermore, these are college kids with their whole lives ahead of them. I can’t think of many things worse for their individual futures than a couple (many) years in an Alabama prison. If this were a real situation and these were unscupulous people who were guilty and felt they weren’t going to get off, Vinny would have a problem. Granted Vinny can’t know with 100% certainty they are innocent since he doesn’t have the audience’s knowledge, but I don’t he would have a problem repesenting both boys.

    On a related issue, they are basically on trial for the same crime (murder and accessory to murder) so there is no need to have a motion to sever and have two trials and two lawyers. The character of Stan is pretty incosequential anyway and in my opinion only exists as a plot device for dramatic tension and comedic relief. You could basically have the same movie without him and it would be fine (though we’d miss the amusing scene of the public defender stuttering his way through cross). No offense to Mr. Whitfield of course, his performance was fine.

    What I’m curious about in this movie is the procedure of holding Vinny in contempt of court. In each instance Vinny is put on the bus to the prison where Mona Lisa bails him out. Would they really send him to prison before releasing him, or would they let him pay his fine at the courthouse and let him go?

    Another question, Vinny doesn’t understand discovery and tries to woo Trotter to give him copies of his files. Since Trotter is obligated to hand them over anyway, why hadn’t he already done so? Vinny shouldn’t have had to ask for them in the first place. It seems that at least off screen at their first meeting Trotter would have asked where Vinny was staying so he could send him his (Trotter’s) discovery. Furthermore, what kind of action would the defendents have if Vinny hadn’t asked for Trotter’s files, Trotter didn’t volunteer them to the defense, and the two were convicted? Obviously both sides had an ethical breech but which is worse, Vinny’s incompetence or Trotter not divulging discovery? Would either or both be grounds for a new trial?

    Last, I promise, what is your take on the judge over ruling Vinny’s objection to allowing the surprise tire expert witness?

    • I think it’s unlikely to the point of impossibility that either would take any offer to flip on the other for a lighter sentence as they would be admitting to a crime neither committed.

      You have to remember that early on things looked pretty dang grim for both of them. Faced with the very real possibility of being found guilty, a plea bargain starts to look seriously attractive.

      they are basically on trial for the same crime (murder and accessory to murder) so there is no need to have a motion to sever and have two trials and two lawyers

      Perhaps not two trials, but separate representation would be necessary if their defenses were different (i.e. if Stan claimed Bill was guilty of the murder and essentially kidnapped Stan).

      Would they really send him to prison before releasing him, or would they let him pay his fine at the courthouse and let him go?

      As I recall the issue was that Vinny was basically broke, so he couldn’t pay bail directly. He was sent to prison because there was something wrong with the local jail (I don’t remember what). Mainly it’s a plot device so that Vinny can talk to Bill and Stan on the bus and to increase tension between Mona Lisa and Vinny.

      Since Trotter is obligated to hand them over anyway, why hadn’t he already done so?

      The rule in Alabama is that the prosecution shall “not willfully fail to make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense.” So technically he only needed to volunteer exculpatory evidence. However, as far as the prosecution was concerned, there wasn’t any.

      However, the prosecution has to give the defense pretty much everything if the defense requests it. Ala. R. Crim. Pro. 16. Ordinarily this has to be in writing and the prosecution has fourteen days to fulfill the request, but the prosecutor in this case is obviously pretty genial and saw no reason to be a stickler.

      Thus, if Vinny hadn’t asked and Trotter hadn’t volunteered the files, then it all would have been on Vinny, since Trotter would not, technically, have done anything wrong. It might have been egregious enough to warrant an ineffective assistance of counsel defense, actually, along with everything else Vinny did wrong.

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