200
Souter, J., dissenting
together put the judge on notice of something amiss, and since the record shows that it was not clear that counsel was favoring the equal protection argument until, at the earliest, the very close of the revocation hearing, and more likely the day he filed his motion two weeks later, the Court could only have meant that the judge was put on notice of a conflict that may actually have occurred, not of a potential conflict that might occur later.7 At that point, as the Court saw it, there were only two further facts the judge would have needed to know to determine whether there had been an actual disqualifying conflict, and those were whether a concern for the interest of the employer had weakened the lawyer's arguments for leniency, and whether the defendants had been informed of the conflict and waived their rights to unconflicted counsel.
This Court, of course, was in no position to resolve these remaining issues in the first instance. Whether the lawyer's failure to press more aggressively for leniency was caused by a conflicting interest, for example, had never been explored at the trial level and there was no record to consult on the point.8 In deciding what to do, the Wood Court had
7 The phrasing of the remand instruction confirms the conclusion that the Wood Court perceived the duty to enquire neglected by the judge as retrospective in nature: The "[state] court [on remand] should hold a hearing to determine whether the conflict of interest that this record strongly suggests actually existed at the time of the probation revocation or earlier." Id., at 273. From the Court's vantage point, another compelling reason for suspecting a conflict of interests was the fact that the employer apparently paid for the appeal, in which counsel argued the equal protection question only, id., at 267, n. 11; but, of course, this would have been unknown to the judge at the revocation hearing.
8 There was certainly cause for reasonable disagreement on the issue. As Justice White pointed out, absent relevant evidence in the record, it was reasonable that the employer might have refused to pay because the defendants were no longer employees, or because it no longer owned adult establishments. Id., at 282-283, and n. 9 (dissenting opinion). Indeed, counsel said that he was no longer paid by the employer for his representa-
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