This case dealt with the question of whether a lawyer can, with the consent of his client, represent both his client, and, in an unrelated matter, one of the prosecution’s witnesses against his original client. The defendant in this case, Solomon, was charged with raping his daughter over a four year period. The lawyer that was representing the defendant also represented Kuebler, one of the police officers who had interviewed the defendant after his arrest. Prior to the trial, the attorney informed the judge that he represented Kuebler in an unrelated civil matter, but that the defendant had been informed of the situation and had consented to the representation. The judge asked the defendant if it was correct that he consented to the representation, which the defendant affirmed. Kuebler testified at trial that, in an interview, the defendant had confessed to having sex with his daughter at least once. The attorney for the defendant, and for Keubler in the second matter, was able to cross-examine Kuebler at trial. The defendant was convicted. After the trial, the defendant appealed on the ground that the lawyer’s conflict had denied him effective assistance of counsel.
The Court of Appeals held that the defendant was denied effective assistance of counsel. In a criminal matter, the defendant may waive an attorney’s conflict, “but only after an inquiry has shown that the defendant ‘has an awareness of the potential risks involved in that course and has knowingly chosen it.’” People v. Gomberg, 38 N.Y.2d 307, 313-314, 342 N.E.2d 550, 554 379 N.Y.S.2d 769, 775 (1975). The consent in this case was inadequate where the inquiry into the nature of the defense counsel’s simultaneous representation was not even placed on the record. However, the Court explained, inadequate representation is not enough to require reversal. There must also be an actual conflict of interest, not just a potential conflict of interest.
A potential conflict of interest may arise when an attorney represents co-defendants or both a client and a prosecution witness. However, in neither case will there be an actual conflict of interest, per se. An actual conflict of interest arises when the conflict has a “‘substantial relation to the conduct of the defense.’” People v. McDonald, 68 N.Y.2d 1, 9, 496 N.E.2d 844, 847, 505 N.Y.S.2d 824, 827 (1986). It is not necessary to look into the actual quality of the representation, only whether an actual conflict existed. In this case, the lawyer simultaneously owed a duty of loyalty to both the defendant on trial and to the police officer being cross-examined. This represented an actual conflict and required reversal.
20 N.Y.3d 91, 980 N.E.2d 505, 956 N.Y.S.2d 457 (2012).