194
Souter, J., dissenting
ingly, the Court did not rest the result simply on the failure of counsel to object, but said instead that "[n]othing in the circumstances of this case indicates that the trial court had a duty to inquire whether there was a conflict of interest," ibid. For that reason, it held respondent bound to show "that a conflict of interest actually affected the adequacy of his representation." Id., at 349.
The different burdens on the Holloway and Sullivan defendants are consistent features of a coherent scheme for dealing with the problem of conflicted defense counsel; a prospective risk of conflict subject to judicial notice is treated differently from a retrospective claim that a completed proceeding was tainted by conflict, although the trial judge had not been derelict in any duty to guard against it. When the problem comes to the trial court's attention before any potential conflict has become actual, the court has a duty to act prospectively to assess the risk and, if the risk is not too remote, to eliminate it or to render it acceptable through a defendant's knowing and intelligent waiver. This duty is something more than the general responsibility to rule without committing legal error; it is an affirmative obligation to investigate a disclosed possibility that defense counsel will be unable to act with uncompromised loyalty to his client. It was the judge's failure to fulfill that duty of care to enquire further and do what might be necessary that the Holloway Court remedied by vacating the defendant's subsequent conviction. 435 U. S., at 487, 491. The error occurred when the judge failed to act, and the remedy restored the defend-representation alone, the convicted defendant could get no relief without showing "actual conflict" with "adverse effect." 446 U. S., at 347-350.
Of course, a judge who gets wind of conflict during trial may have to enquire in both directions: prospectively to assess the risk of conflict if the lawyer remains in place; if there is no such risk requiring removal and mistrial, conversely, the judge may have to enquire retrospectively to see whether a conflict has actually affected the defendant adversely. See infra, at 202.
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