provide effective assistance for each client. The trial court
denied the motions without taking adequate steps to
ascertain whether the risk of conflict of interest was too
remote to warrant separate counsel, and defendants were
convicted.
Holloway held that requiring or permitting a single
attorney to represent codefendants, often referred to as
joint representation, is not per se violative of the Sixth
Amendment. The Supreme Court also determined that
whenever a trial court improperly requires joint
representation over a timely objection, reversal is
required, and prejudice is presumed in such case
regardless of whether it was independently shown. See
also, Glasser v. U.S., 315 U.S. 60, 75-76, 62 S.Ct. 457,
467 (1942).
In Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708
(1980), two codefendants were acquitted at separate
trials, while the third, Sullivan, was convicted. Sullivan
brought a habeas corpus action, alleging ineffective
assistance of counsel on the ground that his attorneys had
a conflict of interest. The Supreme Court held that
defense attorneys have an ethical obligation to avoid
conflicting representations and to advise the court
promptly when a conflict of interest arises during the
course of trial. An attorney representing two defendants
in a criminal matter is in the best position professionally
and ethically to determine when a conflict of interest
exists or will probably develop in the course of a trial.
The Court also held that a defendant who shows that
a conflict of interest actually affected the adequacy of his
representation, need not demonstrate prejudice in order
to obtain relief. But until a defendant shows that his
counsel actively represented conflicting interests, he has
not established the constitutional predicate for his claim
of ineffective assistance.
In Flanagan v. United States, 465 U.S. 259, 104 S.Ct.
1051 (1984), the district court prior to trial disqualified
a law firm, which was to jointly represent four
defendants, from representing any of the four defendants.
The Court held that this disqualification order was
interlocutory and not reviewable prior to entry of a final
judgment in the criminal case.
Burger v. Kemp, 483 U.S. 776, 107 S.Ct. 3114
(1987), held that, while there is great potential for a
conflict of interest when two law partners represent
coindictees and cooperate in the planning of trial
strategy, even if defendants were tried separately,
prejudice will be presumed only if the defendant
demonstrates that counsel actively represented conflict-
ing interests and that an actual conflict of interest
adversely affected his lawyer’s performance.Nix v. Whiteside, 475 U.S. 157, 106 S.Ct. 988
(1986), held that when a defendant informs counsel that
defendant will perjure himself on the stand, it is proper
conduct, and clearly not ineffective assistance of counsel,
to attempt to dissuade defendant from such conduct, to
inform the client that the attorney would be obligated to
inform the court if such conduct occurred, and to seek to
withdraw as counsel if defendant insists on perjuring
himself. The Court found that such warnings by counsel
in no way violated defendant’s right to testify in his own
behalf, or his right to counsel. Here, the only conflict of
interest was between defendant’s proposal to testify
falsely, and counsel’s ethical obligations.State v. Land, 73 N.J. 24 (1977), held that the joint
representation by a single attorney of a husband and wife
charged with narcotics violations deprived the
defendants of effective assistance of counsel. The Court
noted that it is the attorney’s obligation when he first
meets with his prospective clients to advise them of
possible conflicts and of their constitutional rights. Land
also held that in all cases where an attorney represents
more than one defendant, the trial court ought to advise
the parties of their constitutional rights. This should be
accomplished as soon as the trial court is alerted to the
existence of multiple representation and feasibly may
bring the matter to the attention of the defendants and
counsel. The defendants may waive those rights, but the
trial judge must make certain on the record that the
defendants understandingly and knowingly have
decided to forego separate counsel.The Court further determined that the preferable
rule is that, in the absence of waiver, if a potential conflict
of interest exists, prejudice will be presumed resulting in
a violation of N.J. Const. 1947, Art. I, ¶ 10, guaranteeing
assistance of counsel.In State v. Bellucci, 81 N.J. 531 (1980), the Supreme
Court again addressed the issue of joint representation
which involved the pretrial representation of several
codefendants by one attorney. Bellucci held that the
attorney should be barred from representing any one of
them. In addition, the Court held that it was an
improper conflict for an attorney to represent one
defendant while a partner or assistant in the same firm
represents other criminal codefendants. The Court again
found that actual prejudice need not be demonstrated,
and it adhered to the principle that once a potential