Cite as: 535 U. S. 162 (2002)
Souter, J., dissenting
The most obvious reason to reject the majority's rule starts with the accepted view that a trial judge placed on notice of a risk of prospective conflict has an obligation then and there to do something about it, Holloway, supra, at 484. The majority does not expressly repudiate that duty, see ante, at 167-168, which is too clear for cavil. It should go without saying that the best time to deal with a known threat to the basic guarantee of fair trial is before the trial has proceeded to become unfair. See Holloway, supra, at 484; Glasser, 315 U. S., at 76. Cf. Pate v. Robinson, 383 U. S. 375, 386-387 (1966) ( judge's duty to conduct hearing as to competency to stand trial). It would be absurd, after all, to suggest that a judge should sit quiescent in the face of an apparent risk that a lawyer's conflict will render representation illusory and the formal trial a waste of time, emotion, and a good deal of public money. And as if that were not bad enough, a failure to act early raises the specter, confronted by the Holloway Court, that failures on the part of conflicted counsel will elude demonstration after the fact, simply because they so often consist of what did not happen. 435 U. S., at 490-492. While a defendant can fairly be saddled with the characteristically difficult burden of proving adverse effects of conflicted decisions after the fact when the judicial system was not to blame in tolerating the risk of conflict, the burden is indefensible when a judge was on notice of the risk but did nothing.
With so much at stake, why should it matter how a judge learns whatever it is that would point out the risk to anyone paying attention? Of course an objection from a conscientious lawyer suffices to put a court on notice, as it did in Holloway; and probably in the run of multiple-representation cases nothing short of objection will raise the specter of trouble. But sometimes a wide-awake judge will not need any formal objection to see a risk of conflict, as the federal habeas court's finding in this very case shows. 74 F. Supp. 2d, at 613-615. Why, then, pretend contrary to fact
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