Also known as: actual conflicts · actual conflict of interest
Written by attorneys · grounded in primary & secondary sources — see below
A conflict of interest that actually affects a lawyer's performance in representing a client. The conflict arises when counsel actively represents opposing interests and takes or omits an action to favor one client over another.
Anthony Arnold's firm represents both the husband and the insurer in an uninsured-motorist claim. When the husband later sues the insurer for bad faith, the firm must withdraw because the suit creates an actual conflict that cannot be waived.
Anita Ali and her codefendant share one lawyer at trial. The lawyer declines to cross-examine a witness whose testimony implicates only the codefendant, showing the actual conflict adversely affected Ali's defense.
Angela Acosta's lawyer also represents a codefendant at sentencing. The lawyer withholds mitigating evidence that would have helped Acosta but would have harmed the codefendant, establishing an actual conflict that prejudiced her representation.
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Alexis Archer and two codefendants object at arraignment to shared counsel. The trial court forces continued joint representation, and the actual conflict that later emerges requires reversal without further prejudice showing.
Audrey Ashton and her codefendant both waive any conflict and insist on the same retained lawyer. The trial court still disqualifies counsel because the actual conflict threatens the integrity of the proceedings.
Alexandra Armstrong's lawyer learns the client intends to commit perjury. The lawyer's refusal to present the false testimony creates an actual conflict that the court must address before trial proceeds.
An actual conflict exists only when counsel actively represents opposing interests and the conflict adversely affects performance. A potential conflict is the mere possibility that interests may diverge in the future.
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No. Once an actual conflict that adversely affected counsel's performance is shown, prejudice is presumed and reversal follows without further inquiry into outcome effect.
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Waivers are sometimes ineffective when serious adversity and confidentiality risks arise, especially if one client later sues another or when the court finds the conflict nonwaivable.
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The defendant must demonstrate both that counsel actively represented conflicting interests and that the conflict adversely affected the lawyer's performance.
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…"adequate legal assistance," Cuyler v. Sullivan, 446 U.S., at 344, 100 S.Ct., at 1716. Id., at 345-350, 100 S.Ct., at 1716-1719 (actual conflict of interest adversely affecting lawyer's performance renders assistance ineffective). The Court has not elaborated on the meaning of the constitutional requirement of effective assistance in the…