By Gad Coffie, Dr Brett Davies and Dr Sue Kee; members of the Ethics Committee
It is not uncommon in litigation for multiple clients to retain the same counsel. Naturally, counsel so retained must act in the best interests of each client, so far as those interests are not in irreconcilable conflict.
Can counsel, though, represent multiple clients, particularly in sentencing, where it is open to argue that either client should receive a more substantial penalty than the other? That was the question in Farrugia v The King [2026] HCA 28. The answer, it turns out, is: “it depends”.
Background – unassuming beginnings
The appellant in this matter is one of two offenders sentenced by the NSW District Court after they both entered guilty pleas for conspiring to traffic a commercial quantity of a controlled drug. The respondent is the Crown, represented by the Commonwealth Director of Public Prosecutions, with the NSW Director of Public Prosecutions intervening.
So, how did we get here? The appellant first challenged his sentence at the NSW Court of Criminal Appeal, contending that by not having separate representation at sentencing, the exercise of the sentencing discretion by the District Court was “vitiated”.
So, what exactly happened during sentencing? During sentencing both offenders retained the same barrister (Senior Counsel). In written submissions filed on behalf of the two offenders, in response to submissions by the Crown, Senior Counsel submitted that … the appellant’s offending was objectively more serious than that of his co-accused. The submissions sought leniency for the appellant by an adjustment of his non-parole period “on the basis of [alleged non-exculpatory] duress, mental health concerns and Bugmy type principles”, as well as on account of his limited criminal history [17].
The sentencing judge accepted Senior Counsel’s submissions relating to the Bugmy considerations (ie difficult childhood) as diminishing the appellant’s moral culpability but did not accept that any “non-exculpatory duress” was established. The sentencing judge did not make any express findings as to the objective seriousness of either offender, but found that the appellant was more “deeply involved” than his co-accused and imposed a longer custodial sentence as a result [20].
Court of Criminal Appeal proceedings
The appellant retained different counsel during his challenge at the Court of Criminal Appeal. The appellant did not adduce evidence of communications between him and Senior Counsel or his instructing solicitor. Ostensibly in discharge of its model litigant obligations, the Crown “advised the appellant that consideration was being given to obtaining evidence from the appellant’s lawyers and inquired of the appellant whether he would waive privilege over those communications”. The appellant declined [21].
The issue before the Court of Criminal Appeal was essentially whether the appellant “should have had separate representation”; the appellant contending that the sentencing proceedings “miscarried” primarily because Senior Counsel was placed in a position of conflict between the two accused persons.
That challenge was unsuccessful with the Court of Criminal Appeal ruling that with no evidence “of the instructions given by the appellant to Senior Counsel or any advice he may have received” the Court could not make a positive finding “that there [was] a significant possibility Senior Counsel’s joint representation adversely affected the sentence imposed upon him” [24] and [78].
We emphasise while the issue of Senior Counsel being in conflict loomed large in this case, there was no judicial criticism expressed.
Issues
In the appellant’s application for special leave to appeal the decision of the Court of Criminal Appeal, two issues arise for determination.
The first rests to be determined on the legislative mechanism within which the Criminal Appeal Act 1912 (NSW) operates. Put simply, the question is whether there is a threshold of materiality that must be overcome before the Court of Criminal Appeal can conclude that an error or a procedural irregularity “vitiates” a sentence (Kentwell v The Queen (2014) 252 CLR 60, [42]).
Given the distinctive NSW legislative paradigm within which this issue was considered we choose not to discuss this aspect of the judgment much further. That is not to say the Court’s determination of this issue is not applicable to the WA context.
The second issue is whether the appellant established that that irregularity affected his sentencing.
The High Court’s decision
A majority of the Court (Gageler CJ, Gordon, Steward, Gleeson and Beech-Jones JJ) held that no practical injustice was occasioned to the appellant “in that it was not shown that he was denied a reasonable opportunity to present his case” [60]. The majority referred to the appellant’s conduct as attracting the inconsistency with maintenance of privilege that was found by the Court in Mann v Carnell (1999) 201 CLR 1, [28]-[29], noting that the way the appellant’s case was argued in the Court of Criminal Appeal “most likely effected a waiver over the contents of the communications” between him and Senior Counsel (and his solicitor) [59].
The majority addressed submissions focusing on the well-settled duty to act in the best interests of the client as provided for in rule 35 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (Barristers Rules) (although drafted quite differently, see also rule 4 of the Legal Profession Uniform Conduct Australian Solicitor’s Conduct Rules 2015 (Conduct Rules)). The majority were of the view that this rule has a (fiduciary) proscriptive component which is breached where there is an actual or perceived conflict; assessed “objectively by reference to the facts and circumstances of the particular case” (Boardman v Phipps [1967] 2 AC 46, 124).
Informed consent, a vital indicium of the rule, is however not necessarily determinative [42] (Pilmer v Duke Group Ltd (in liq) (2001) 207 CLR 167, [78]). As their Honours held (citing a number of NSW authorities approvingly), “there are some conflicts that are so pronounced that counsel must cease to act irrespective of whether the client’s consent has been obtained” [43].
The appellant sought also to rely on rule 119 of the Barristers Rules. The majority held that the rule obliges the barrister to make a bona fide determination as to whether there is a real possibility of conflict by reference to the interests of each client, going on to state that, “there is no rule prohibiting the practice of counsel appearing for multiple accused [44] – [45] (see also [134] per Jagot J). In this particular case, it is the view of the majority that the appellant failed to demonstrate any error or procedural irregularity was occasioned; thus dismissing the appeal [60].
Edelman and Jagot JJ in separate judgments took a different view. Their Honours concluded that the sentencing proceedings were vitiated, [73] and [118].
Edelman J noted the question in this appeal was whether the apparent conflict discernible to a reasonable observer without knowledge of all the information confidential to the appellant, would crystalise (at the time Senior Counsel was instructed) into actual conflict. His Honour noted, at [71] – [72], that:
71 … [a] majority of this Court concludes that no potential or actual conflict has been proved without sufficient evidence of the instructions given by [the appellant] to Senior Counsel. With respect, I disagree.
72 In the absence of evidence of Senior Counsel’s instructions, it is not possible to know the content of any assumed obligations that Senior Counsel had to avoid potential and actual conflicts of duties. But the obligations to avoid potential and actual conflicts are not merely assumed duties based on instructions. Those obligations are also imposed by the law.
His Honour disagreed with the test applied by the Court of Criminal Appeal: the correct question identified is “whether a conflict by Senior Counsel could realistically have affected the reasoning process of the sentencing judge” and not “whether a significant possibility that Senior Counsel’s joint representation adversely affected the sentence imposed” [109].
Addressing the issue of conflicting duties, His Honour noted that the potential can have “unnoticed effects by manifesting as a subtle but pernicious actual conflict”, citing R v Silvini (1991) 5 OR (3d) 545, 549-50. In this case, Edelman J was of the view that actual conflict arose when Senior Counsel received submissions from the Crown arguing that one offender “should receive a more substantial penalty”. In responding to that submission, Senior Counsel had a public duty to advance each client’s case favourably without regard to the consequences to the other client [107].
Jagot J approached the matter from the unique considerations that pertain to criminal matters. Because of the narrow scope of an accused’s legitimate interests in criminal matters, Her Honour thought it would be a “rare case” in which fully informed consent to a disclosure of conflict by counsel “negates or qualifies” counsel’s duty to act in the best interests of that accused alone [123].
As Her Honour reiterated at [126], there is a notional distinction between how multiple client conflict considerations are approached in criminal matters, when compared to commercial or civil disputes. Noting in particular that in criminal matters the fundamental consideration is getting the least sentence possible for the accused – nevertheless within prescriptive procedural confines – whereas in commercial transactions or civil litigation, the legitimate interests of a party may embrace a range of outcomes [128].
Jagot J concluded by noting at [177] that:
[o]ne reason the law protects against legal representatives acting for clients whose interests conflict is that if a conflict of interest is not recognised in its true nature and with its true consequences, the legal representative is disabled from appreciating the effect of the conflict on their duties and their decision-making in discharge of their duties.
Sidenote: a quirky legislative issue
Each judgment dedicated a fair chunk of change to section 12(2) of the Criminal Appeal Act 1912 (NSW) and the power to remit for resentencing. The majority observed this is a matter that might warrant the consideration of the NSW Parliament [64]; Edelman J “had serious doubts” whether this case could be remitted to the District Court [111]; and Jagot J felt “there has been such a significant irregularity” that the matter should be remitted to a differently constituted District Court [192].
For WA practitioners, however, this NSW “anomaly” sits outside the scope of this article. The real commercial and ethical takeaway is far blunter: do not invite appellate scrutiny in the first place. Whether a court can remit the matter is largely academic compared to your primary duty: never put yourself in a position where joint representation compromises the court’s sentencing discretion.
Reflections
The Court, by majority, held that conflict was not established, but the ratio of this case is far from straightforward. Every practitioner is all too familiar with the difficulty of balancing competing interests. Conflict should be avoided, if at all possible, or at least properly managed. Needless to say, conflict not properly handled, could result in perverse consequences. From an ethical perspective, if in doubt, please consider whether the interests of justice are best served by ceasing to act.
They may have been in the minority, but Edelman and Jagot JJ’s reasoning offers a masterclass in practitioner risk management. Edelman J rightly warned that potential conflict can lurk as “subtle but pernicious” actual conflict, crystallising the moment Senior Counsel was placed in a position to argue that one offender deserves a heavier penalty than the other. Add to this Jagot J’s reminder that the bedrock goal in criminal matters is securing the lightest possible sentence without jeopardising the integrity of the criminal trial process, and you have zero room for divided loyalties.
It is worth pointing out that even though this case is about joint representation by counsel, the issue of conflict applies to all practitioners (rule 11 of the Conduct Rules). Similarly, although this case is a criminal matter, it is safe to say the general principles are just as applicable to civil matters.
Lastly, this matter raises the tension between legal professional privilege and presenting evidence in an appeal before an intermediate appellate court. It is arguable that the forensic decision made by the appellant not to waive privilege, at least directly, for evidentiary purposes potentially affected the outcome of the decision of the Court of Criminal Appeal. What is not in dispute is, that decision met the approval of the majority. This creates what could be a wicked Catch-22 for both practitioner and client.
To prove a conflict vitiated a sentence, an appellant must establish a “practical injustice”. But how do you prove that? Usually, by adducing evidence of the instructions counsel actually received. This forces the client into a miserable corner: waive your sacred legal professional privilege or watch the appeal wither on the litigation vine for lack of evidence. It is a sobering reminder that trying to unscramble the conflict egg post-sentencing could be an evidentiary nightmare. This was the fate of the appellant here.
While the observations by the majority that privilege was impliedly waived by the conduct of the appellant were strictly in obiter, they are certainly a noteworthy reminder for practitioners that maintaining a client’s claim of privilege in adversarial advocacy can be very nuanced. Applying Edelman J’s test of whether what a “reasonable observer” sees as apparent conflict, converts, on a proper analysis, to the higher thresholds of potential or actual conflict, before taking on a joint brief, is not just good ethics – it is the cheapest insurance policy for your reputation.
