(dissenting) — I respectfully dissent from the above opinion for the following reasons. It is not at all clear to me that defense counsel's lack of diligence was totally *966responsible for the failure to discover the conflict of interest substantially earlier than he did. At least that question is somewhat debatable. The record indicates that plaintiff may have contributed to the delay in discovery of the conflict by testifying differently in two depositions. The ultimate result was that a change in plaintiff's testimony in a deposition made some 5 days before trial interjected a new theory of defense into the case. As a result, zealous advocacy for defendant Elberfeld Manufacturing Company would have required defense counsel to take a position contrary to the interests of another client of his office.
There is no question in my mind that the conflict of interest was real and that the trial court should have granted defense counsel's motion to withdraw. (CPR) DR 5-105(B), DR 2-110(B)(2). What is less clear to me is who should bear the extensive costs, occasioned when the trial was aborted by this court after jury selection was under way. Both clients are equally disadvantaged by the delay, and both will have to pay for duplicating many of the costs and counsel fees. Were the fault for this unfortunate occurrence clear, I would not hesitate to impose the terms ordered by the majority. However, since I am not convinced that total fault can be attributed to defense counsel's omissions, and since there has been no showing of bad faith, it would be. unfair to burden defense counsel or his client with the entire costs and expenses. At the very least, such costs and counsel fees should abide a trial on the merits.
Accordingly, I respectfully dissent.
Reconsideration denied February 10, 1982.
Review granted by Supreme Court June 11, 1982.