Potential Versus Actual Conflict of Interest

In a full-fledged opinion by Judge Graffeo, the Court of Appeals affirmed defendant’s conviction, rejecting the defendant’s argument he had been denied effective assistance of counsel because of defense counsel’s conflict of interest.  The Court of Appeals described the difference between an actual conflict of interest (which mandates reversal if not waived) and a potential conflict of interest (at issue in this case):

The defendant bears the burden of establishing a denial of meaningful representation …. When such a claim is premised on a perceived conflict of interest, our precedent differentiates between actual and potential conflicts …. An actual conflict exists if an attorney simultaneously represents clients whose interests are opposed …and, in such situations, reversal is required if the defendant does not waive the actual conflict ….

In contrast, a potential conflict that is not waived by the accused requires reversal only if it “operates” on or “affects” the defense … — i.e., the nature of the attorney-client relationship or underlying circumstances bear a “‘substantial relation to the conduct of the defense'” …. The “requirement that a potential conflict have affected, or operated on, or borne a substantial relation to the conduct of the defense — three formulations of the same principle — is not a requirement that [the] defendant show specific prejudice” …. Nevertheless, it is the defendant’s “heavy burden” … to show that a potential conflict actually operated on the defense ….  People v Sanchez, No 107, CtApp, 6-4-13