Two brothers have been charged with being involved in an armed burglary incident and a solicitor attends them at a police station. Both brothers want the solicitor to act for them and they both claim innocence. The older brother has a long history of violent offenses while the younger brother has never been convicted of any crime. The solicitor believes that it's highly likely that both brothers will be found guilty. Therefore, she thinks that she would need to argue in mitigation that the younger brother acted under the influence of the older brother.
What is the best course of action for the solicitor to take when representing both brothers?
Two brothers have been charged with being involved in an armed burglary incident and a solicitor attends them at a police station. Both brothers want the solicitor to act for them and they both claim innocence. The older brother has a long history of violent offenses while the younger brother has never been convicted of any crime. The solicitor believes that it's highly likely that both brothers will be found guilty. Therefore, she thinks that she would need to argue in mitigation that the younger brother acted under the influence of the older brother.
What is the best course of action for the solicitor to take when representing both brothers?
There is a significant risk of a conflict and the solicitor must not accept instructions to act for both brothers.
(A) is the correct option as a solicitor is prohibited from acting if there is a conflict or a significant risk of conflict between their clients. In this case, although the brothers have the same explanation for their innocence, arguing for the younger brother in mitigation would be harmful to the older brother; therefore, there is a significant risk of conflict.
Answer (B) is incorrect because the substantially common interest exception is not appropriate in these circumstances. This exception is only intended to be used where there is a clear common purpose and where any conflict that is identified is peripheral and can be removed from the instructions. Additionally, when using this exception, the solicitor must be satisfied that it is reasonable to act for both clients under the circumstances, and that does not seem to be the case here.
Answer (C) is also incorrect because client consent does not override the solicitor's duties when a conflict of interest has been identified, except in specific circumstances where one of the two exceptions can be used, and this is not the case here.
Answer (D) is incorrect because it assumes that a solicitor is prohibited from acting only when there is an actual conflict between clients. However, a solicitor is also prohibited from acting if there is a significant risk of a conflict, as previously discussed.
Answer (E) is also incorrect as a solicitor would not be acting in the best interests of each client if their freedoms were curtailed in this way.