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.