In this section
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To ensure that lawyers acting for legally aided co-defendants in criminal law matters comply with their ethical obligation to act in the best interests of their clients by establishing:
The policy applies to grants of legal assistance for criminal law co-defendants only. Representation of co- defendants by lawyers acting as duty lawyers is addressed in the Duty Lawyer Handbook.
The rules and standards of professional conduct and ethics which a lawyer is required to observe include the requirement to avoid conflicts of interest. A type of conflict of interest, which is particularly relevant to criminal law matters, is a conflict between the duties owed to two or more current clients where two or more co-defendants seek a legal service from the same lawyer or law practice.
Rule 11 of the Australian Solicitors Conduct Rules applies to the duties owed to two or more current clients and provides:
In R v Pham  QCA 43 McMurdo P stated:
“Even if there is no immediately apparent conflict of duties concerning the co-defendants, conflicts can easily arise during trials, which are notoriously unpredictable. They can also arise in sentence proceedings. Unanticipated evidence or submissions can result in a conflict of duties owed to two co-defendants, with a risk of prejudice to one or all co-defendants. Substantial costs to parties and the community result where lawyers withdraw because of an arising conflict, causing adjournments or even mis-trials. One or a number of defendants may be more culpable than others. By having the same legal practitioner acting for all, more dominant co-defendants may manipulate those less dominant to give instructions to their detriment and to the advantage of the dominant co-defendants. Where co-defendants are faced with a strong prosecution case, their lawyers should advise them of the value of a guilty plea and co-operation with the authorities in mitigation of penalty. That course may be against the interests of other co-defendants. This list of potential conflict of duties when acting for co-defendants is far from exhaustive.”
“The practice is apt to undermine public confidence in the legal profession and should be discouraged. Unless there is no possibility of a conflict existing or emerging, and such cases will be rare, co-defendants should have separate legal representation. These observations apply equally to solicitors and barristers. If legal practitioners persist in acting for co-defendants, they must be assiduous in meeting their arising ethical responsibilities.”
Rule 113 of the Barristers Rule 2011, as amended, provides:
Rule 108 of the Barristers Rule 2011, as amended, provides:
This policy applies to:
Preferred supplier private law practices
For preferred supplier private law practices, different lawyers in the same practice can represent co-defendants with the approval of an External Review Officer.
External Review Officers, in deciding whether to approve different lawyers in the same practice representing co-defendants, must be satisfied that each of the requirements of Rule 11 of the Australian Solicitors Conduct Rules can be met by the lawyers and law practice.
Legal Aid Queensland’s in-house criminal practice
Exceptional circumstances exemption
Conflict of Interest Policy Protocols - Information Barriers Grants Policy Manual
Quality Legal Services Framework.