Our efforts are guided by the belief that attorneys and their radical clients can work together as collaborators when dealing with repression.
We believe that our struggles for liberation require creativity, dedication, and the willingness to rebel from lawyers, radical defendants, legal workers and supporters, and everyone else involved in social movements.
A well-crafted representation agreement may be useful for radicals facing criminal charges and the attorneys representing them. The following sample representation agreement was provided by Tim Phillips, esq.
SAMPLE REPRESENTATION AGREEMENT
______________________ (“Client”), does hereby retain Attorney ______________________ (“Attorney”), to represent Client in connection with Client’s arrest on ______________, on the following conditions:
1. Attorney will devote Attorney’s full professional abilities to the case. Attorney reserves the right to withdraw from the case to the extent withdrawing is permitted or required by the [state or federal] Rules of Professional Conduct. Client also has the right to discharge Attorney at any time, and would be entitled to a refund of any portion of the legal fee that has been paid for services that have not yet been provided.
2. Client will pay Attorney the following agreed-on sum for representation: $______ flat fee. This fee includes any restitution hearings related to this case. This fee does not include any appeal or post-conviction proceedings. This fee does not include any subsequent probation or parole violations. This fee does not include any related civil or family court matters. Attorney’s representation will end upon dismissal of the case, entry into an agreement for continuance for dismissal, acquittal, or sentencing. Attorney is not obligated to represent client after that point.
3. Costs of litigation, including subpoena and expert witness fees, investigator fees, process server fees, and the like, are Client’s responsibility, must be paid in advance, and are additional to the above-referenced attorney fee.
4. Client agrees that it is Client’s additional and separate responsibility to pay any fines, discovery costs, restitution, and the like.
5. Client agrees that Attorney has made no promises or guarantees regarding the outcome of Client’s case.
6. Client agrees to review and take notes regarding all audio and video recordings related to Client’s case; and to create a spreadsheet listing Client’s co-defendants, their case numbers, and the names of their attorneys.
7. It is the practice of Attorney to maintain a copy of the essential elements of the file for five years after dismissal, acquittal, or sentencing. This copy may be maintained solely in electronic format. Copies of all documents will be forwarded to Client as requested, and will be considered satisfaction of the client’s right to a copy of the file. Additional copies will be provided for $0.15 per page when a hard copy is requested.
Client agrees that (1) legal fees paid under this agreement will not be held in a trust account, and (2) client will be entitled to a refund of all or a portion of the fees if the agreed-upon legal services are not provided.
Joint Defense Agreements & Conflict of Interest Waivers
Radical movements are relational, and thus cases against radicals often involve codefendants. There are numerous benefits to mounting a joint defense for attorney and radical client alike: political, financial, emotional, and logistical. It is important to note that joint defense doesn’t always mean that each individual client takes the same legal approach to their cases; rather, it means that there are shared agreements about how best to meet the legal and political goals of each individual client and their codefendants. A Joint Defense Agreement and Conflict of Interest Waiver can assist radicals facing criminal charges and their attorney(s) navigate these considerations.
SAMPLE JOINT DEFENSE/WAIVER OF CONFLICTS OF INTEREST
We, (Defendant Names) hereby agree as follows:
- We understand that attorney, (Attorney One), currently represents (Defendant One) in the matter, (Case Number/Name), in (Court District); (Attorney Two) represents (Defendant Two) in that same case; and (Attorney Three) represents (Defendant Three). The criminal charges pending arise out of the incident that occurred on (Brief Description of Alleged Incident).
- We understand that there is a possible conflict of interest between (Defendant Names) in that we may have claims against each other, including possible claims for the injuries received, and possible joint liability both civil and criminal.
- We understand that due to the possibility of these claims, Attorneys (Attorney One), (Attorney Two) and (Attorney Three) (hereinafter “Attorneys”) would have a conflict of interest, and would not be permitted to represent coordinate and cooperate unless all three of us waive any conflict of interests we have with each other arising out of the (Alleged Incident) and regarding any and all issues and claims related to (Alleged Incident), and the actions of any and all protesters participating in any of those events.
- We further understand that we individually hold the privilege of attorney client privilege, in that (Attorney One), (Attorney Two) and (Attorney Three) are not permitted to divulge any matters which are confidential between her and each of us, unless each of us so agree.
- We understand that we have the right to consult another attorney with regard to these rights and claims. We hereby waive our right to consult another attorney.
- By agreement of the parties and waiver of any conflicts or potential conflicts, we consent to the Attorneys cooperating and coordinating legal defense, information and legal strategies.
II. MUTUALITY OF INTEREST
We believe that there is a mutuality of interest between (Defendant Names) in a common and joint defense or any and all criminal claims in regard to these matters and any related civil, or administrative proceedings. In this regard, we wish to retain the respective Attorneys to represent ourselves in our separate but common interests and to avoid any suggestions of waiver of the confidentiality of privileged communications, memoranda and documents. Accordingly, it is our intention and understanding that communications among them, either through the various Attorneys and their firms, or otherwise, and any joint interviews of prospective witnesses, are confidential and are protected from disclosure to any third party by attorney-client and attorneys’ work-product privileges.
III. MAINTENANCE OF PRIVILEGE
In order to pursue our joint defense and joint claims effectively, we have also concluded that, from time to time, my mutual interests will be best served by sharing documents, factual material, mental impressions, strategies, legal theories, memoranda, interview reports, and other information, including their confidences, all of which will hereinafter be referred to as “Clients Materials.” In the absence of such sharing, these Plaintiffs and Defense Materials would be privileged from disclosure to adverse or other parties as a result of the attorney-client privilege, the attorney work-product privilege or other applicable privileges. It is the purpose of this Agreement to ensure that the exchanges and disclosures of Clients Materials contemplated herein do not diminish in any way the confidentiality of the Clients Materials and do not constitute a waiver of any privilege otherwise available.
IV. CONSENT AND OTHER RIGHTS
To this end, it is understood and agreed that information obtained by Attorneys either from (Defendant Names) shall remain confidential and shall be protected from disclosure to any third party except as provided herein. It is further understood and agreed that any documents exchanged between us, either through Attorneys or otherwise, and the information contained therein, and any other confidences exchanged between (Defendant Names) shall be used solely in connection with the any and all Lawsuits, the Investigation, and any related civil, and criminal or administrative proceedings arising out of the incident of (Alleged Incident). We further agree that we will not disclose any Materials received from (Defendant Names) or through Attorneys or the contents thereof, to anyone without first obtaining the consent of all parties who may be entitled to claim any privilege with respect to such materials.
V. DEMAND OR SUBPOENA OF MATERIAL
If any other person or entity requests or demands, by subpoena or otherwise, any Defense Materials received from the other, directly or through Attorneys or jointly obtained on behalf of both parties, the party receiving the request or demand will immediately notify the other party. The person or entity seeking such Defense Materials will be informed that these materials are only on loan and that demand should be made on the appropriate party. Each party will take all steps necessary to permit the assertion of all application rights and privileges with respect to said Defense Materials and shall cooperate fully with the other in any judicial proceeding relating to disclosure of the Defense Materials.
VI. JOINT DEFENSE DOCTRINE
It is understood that all work performed by The Attorneys, their respective law firms attorneys, employees and agents with regard to its representations and communicated to either (Defendant Names) or all of them in connection with these representations shall be accomplished pursuant to the work product and the attorney-client privilege and to the “joint defense doctrine” (joint representation doctrine) and all other applicable rights and privileges, including those recognized in Continental Oil Company v. United States, 220 F.2d 347 (9th Cir.1964); Hunydee v. United States, 355 F.2d 183 (9th Cir.1965), In the Matter of a Grand Jury Subpoena Dated November 16, 1974, 406 F.Supp. 381 (S.D.N.Y.1975), and United States v. McPartlin, 595 F.2d 1321 (7th Cir.1979).
VII. CHANGED CIRCUMSTANCES
In the event any party decides to withdraw from this Agreement for any reason, that party shall immediately notify each named Attorney herein of that parties’ withdrawal from this Agreement, which will thereupon be terminated as to that party; provided, however, that no such termination shall effect or impair the obligations of confidentiality with respect to materials previously furnished pursuant to this Agreement. Further, any party, upon withdrawal, shall return all materials provided by the other parties hereto, including any copies of Defense Materials.
VIII. CONFLICT OF INTEREST AND DISQUALIFICATION
We hereby further agree that in the event that if we withdraw from this Agreement, nothing in this Agreement shall create a conflict of interest so as to require the disqualification of the Law Offices of (Attorney One) from the representation of the other and we hereby waive any such conflict of interest.
It is agreed, however, that each named Attorney herein, shall not be disqualified based upon said firm’s participation in this Agreement, from examining or cross-examining either (Defendant Names) if any testifies at any proceeding, whether under grant of immunity or otherwise.
IX. LIMITATION OF DUTIES AND CONFLICTS
We have been advised, and have agreed, that each Attorney will be acting only as the attorney for its client in each action and will owe a duty of loyalty only to its client. (Attorney One) represents (Defendant One), (Attorney Two) represents (Defendant Two) and (Attorney Three) represents (Defendant Three). Each client has agreed to knowingly and intelligently waive any conflict of interest that may arise from the Attorneys examining them at any proceeding.
X. INJUNCTIVE RELIEF
We acknowledge that disclosure of any communication in violation of this Agreement will cause the parties hereto to suffer irreparable harm for which there is no adequate legal remedy. Each party hereto acknowledges that immediate injunctive relief is an appropriate and necessary remedy for any violation or threatened violation of the Agreement.
XI. CONTINUANCE OF AGREEMENT
This Agreement shall continue in effect notwithstanding any conclusion or resolution as to either the criminal or civil Lawsuits or the Investigations or any administrative, civil, or criminal proceedings arising from or relating to any of them. I agree that I will continue to be bound by this Agreement following any such conclusion or resolution.
XII. NON WAIVER
Any waiver in any particular instance of the rights and limitations contained herein shall not be deemed, and is not intended to be, a general waiver of any rights or limitations contained herein and shall not operate as a waiver beyond the particular instance.
XIII. EXPLANATION AND MODIFICATION
By signing this Agreement, I (we) certify that the contents of this Joint Defense Agreement have been explained to us (me), and that I (we) agree to abide by the understandings reflected in the Agreement. Any modifications of the Agreement must be in writing and signed by all parties.
The foregoing is agreed to by the following parties as of the date first written below.
Date: (Insert Date) By (Defendant One Signature)
Date: (Insert Date) By (Defendant Two Signature)
APPROVED: (Attorney One Signature), Attorney One Name), Esq.
APPROVED: (Attorney Two Signature), Attorney Two Name), Esq.
APPROVED: (Attorney Three Signature), Attorney Three Name), Esq.