A Failed Trial for Now?
A Failed Trial for Now?
On 30 October 2023, the Amsterdam Disciplinary Board (the “Board”) issued a decision in a test case regarding, in short, the assistance provided to both a suspect and witnesses by the same lawyer in the same investigation. The key question was whether a lawyer is permitted to represent both a suspect and one (or more) witnesses in the same criminal investigation.
The lawyer in question (“the respondent”) was representing the suspect in a criminal case together with a colleague from the same law firm. In addition, the respondent and his colleague had also provided assistance to at least four witnesses who were yet to be interviewed by the investigation authorities, all employees of the suspect.
When the respondent requested the Public Prosecution Service (PPS) to provide the case files in the criminal proceedings against the suspect, the PPS decided to withhold these documents from the suspect and the respondent. The reason – at least as I understand it – was that the respondent was also representing the witnesses who were yet to be interviewed, and these witnesses were not allowed to see the case files. The examining magistrate, to whom the respondent appealed this decision, sided with the PPS.
Meanwhile, the PPS had already reported the respondent’s conduct (and that of his colleague) to the Dean of the Bar Association. The Dean then submitted the matter to the Board, which is noteworthy, as there was no indication that either the suspect or the witnesses had complained about any alleged conflicting interests. They apparently had no objection to being represented by the same lawyer.
In its decision, the Board rightly noted, in general, that there is no rule prohibiting lawyers from representing multiple suspects or other players, such as witnesses, in the same criminal proceedings, as long as there are no (potential) conflicting interests. The Board failed, however, to point out that lawyers are prohibited from engaging in conduct that could lead to improper witness influence (Professional Conduct Rule 21).
The Board’s first finding was that the witnesses, as employees, were in a dependent relationship with the suspect, their employer. Furthermore, the suspect was paying for their legal representation, meaning there was no fully parallel alignment of interests, which – so I infer – implied (potentially) conflicting interests. The Board seemed to conclude that the employees might not feel free to testify independently. This breached the rule that a lawyer cannot act for more than one party in a case where those parties have opposing interests (Professional Conduct Rule 15). According to the Board, the witnesses should have been represented by a different lawyer.
The Board did not specify who should have paid for this different lawyer. It could be argued, based on the Board’s reasoning, that it should not have been the employer, the suspect. But who then? A witness is not entitled to state-funded legal aid. Moreover, there is also the concept of good employer conduct. A responsible employer might offer to provide legal counsel to support employees during interviews and pay for that counsel. The facts of this particular case may have played a role in the Board’s decision, but not every employer-employee relationship is inherently one of dependency, nor does it automatically lead to improper influence over a witness. Furthermore, interests do not need to be fully aligned—they never are, and this is not required by disciplinary case law. However, interests that are not fully parallel do not necessarily amount to conflicting interests!
A solution to this perceived problem could potentially be found in the presence of the employer’s lawyer, the suspect’s lawyer, during the witness interviews. This lawyer can advise the witness on their rights and obligations and ensure the interview is conducted properly but would not act as the witness’s legal representative. The lawyer must be careful to clarify the capacity in which they are acting, i.e., as the suspect’s counsel. This solution is not as problematic as it might seem, especially since anything the employee says can be attributed to the employer’s company and, through the doctrine of factual leadership, to the suspect. Another option could be the establishment of a derivative right to silence for employees of a corporate suspect (note, not the suspect employer themselves), similar to competition law.
Returning to the Board’s decision
The Board seems to view the respondent’s appeal against the withholding of the case files as further evidence of possible conflicting interests. This reasoning is flawed. If the PPS withholds documents because they fear the lawyer may share them with the witness, the situation would be no different if the witness were represented by another lawyer. After all, the suspect’s lawyer (or the suspect themselves) could still share the documents or their content with the witness (or their lawyer). No, the PPS, and by extension the examining magistrate, simply did not trust the lawyer in question to adhere to Professional Conduct Rule 21. That is why they refused to provide the files. Perhaps this distrust was justified—I do not know the facts of the case—but it unnecessarily clouded the Board’s decision, as it was not related to the question of whether one lawyer can represent both a suspect and a witness.
All in all, this decision raises more questions than it answers.
Given that this is a test case, it is likely that the Disciplinary Court of Appeal will now take the lead. One can only hope that the Court employs clearer reasoning and also elaborates on the many possible variations of the theme of representation of suspects and witnesses by the same lawyer or law firm.
My view: A lawyer can certainly represent both a suspect and a witness in the same criminal case. They must ensure that there are no conflicting interests and comply with Professional Conduct Rule 21. Admittedly, to avoid problems with the PPS (and the Dean?), a suspect’s lawyer would be better off not representing witnesses. But it can also be beneficial, even for the PPS. Having one point of contact can streamline the witness interview process and avoid unnecessary legal objections and delays later on. If all parties involved follow the (professional conduct) rules, this should not pose any problems.
