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Conflict of Interest in Multiple Representation Situations
A noteworthy problem in Criminal Procedure occurs where a lawyer represents more than one client in the same proceeding. By representing two defendants in the same proceeding, the lawyer creates a conflict of interest among the defendants, and the defendants must waive attorney-client privilege as to each other. Accordingly, if litigation between the two clients eventuates, the privilege will not protect any such communications, and the clients should be so advised. In Cuyler v. Sullivan,446 U.S. 335 (1980) the Supreme Court held that the mere possibility of conflict is insufficient to establish ineffective assistance of counsel or a conflict of interest. In order to prove a Sixth Amendment violation stemming from a multiple representation, a defendant must demonstrate that an "actual conflict of interest adversely affected his lawyer's performance." See id.