(dissenting)—I respectfully dissent from the majority's conclusion on the ineffective assistance of counsel claim. The trial court's failure to inquire into counsel's apparent conflict of interest requires reversal of Martinez' conviction.
The majority opinion correctly identifies the two rules to be applied in situations where a defendant alleges ineffective assistance of counsel due to a conflict of interest by his attorney, stating:
First, a trial court commits reversible error if it knows or reasonably should know of a particular conflict into which it fails to inquire. Second, reversal is always necessary where a defendant shows an actual conflict of interest adversely affecting his lawyer's performance. In neither situation need prejudice be shown.
In re Richardson, 100 Wn.2d 669, 677, 675 P.2d 209 (1983) . . .
*719Although it would seem clear that the first rule controls here, the majority, at page 715, declines to apply the rule to the instant case stating,
[njothing said in the Richardson opinion or the cases relied upon in Richardson suggests that the trial court has a duty to inquire into possible conflicts where nothing more is involved than a pretrial or out-of-court interview of a potential witness.
I do not agree. The Richardson court unequivocally states, "the rules apply to any situation where defense counsel represents conflicting interests" and it assigns to the court the responsibility of "active protection" of a defendant's rights when it is aware of the possibility of the conflict of interest. Richardson, 100 Wn.2d at 677. The suggestion of the majority opinion that case law requires only that the trial court inquire "where there is a conflict involving a witness who is actually presented to be sworn and expected to give testimony", majority at 715, is not found in the cases and does not logically flow therefrom. By limiting the rule to situations where counsel's other client is actually testifying, the prophylactic purpose of the rule is severely reduced. If, as claimed by Martinez here, counsel is burdened by an actual conflict of interest, he would be wise to prevent his other client from testifying. Under the majority's view, counsel manages to insulate himself totally from the scope of the rule by not calling his other client despite the fact that the defendant client ardently requests it.
In addition to creating this ironic result, the majority's analysis is in conflict with the approach we took in State v. Hatfield, 51 Wn. App. 408, 754 P.2d 136 (1988). In Hatfield we addressed the issue of whether a conflict can arise in the context of pretrial advisement of a witness regarding his Fifth Amendment rights. Both the defendant and the witness were represented by the Seattle-King County Public Defender Association. In keeping with Richardson, we recognized that "simultaneous representation of a defendant and a witness with opposing interests can give rise to a *720conflict which implicates the right to counsel". Hatfield, 51 Wn. App. at 410. However, because the trial court had recognized the conflict and appointed an attorney not connected with the Seattle-King County Public Defender Association to advise the witness of his privilege against self-incrimination, we found that Hatfield could not establish an ineffective assistance of counsel claim. Hatfield, 51 Wn. App. at 414.
The situation we now face is nearly identical to the one which necessitated further inquiry by the trial court into the apparent conflict in Hatfield. The majority distinguishes the situation here because, unlike in Hatfield, the trial court was not expressly informed of a possible conflict. This is not a material distinction, however. In Richardson the court stated that "a trial court commits reversible error if it knows or reasonably should know of a particular conflict into which it fails to inquire." (Italics mine.) Richardson, 100 Wn.2d at 677.
Here, the trial court was well aware that both the witness and the defendant were represented by the same office. And, while simultaneous representation is not a conflict of interest per se, see Holloway v. Arkansas, 435 U.S. 475, 55 L. Ed. 2d 426, 98 S. Ct. 1173 (1978), once the court is aware that the clients are adverse to one another, the potential for conflict absolutely requires further inquiry. Richardson, 100 Wn.2d at 677; Hatfield, 51 Wn. App. at 410.
The facts clearly demonstrated the adversity between the two clients. One client, the defendant, wanted to call counsel's other client as a witness, counsel refused, and the defendant vociferously objected to this decision. In addition, it is clear the defendant wanted to elicit the potential witness's prior statement exculpating him and thus put the witness's credibility at issue. This was sufficient to alert the trial judge to the conflict.2 Sullivan3 mandates a reversal *721when the trial court has failed to make an inquiry in a situation where it "knows or reasonably should know that a particular conflict exists.""' Richardson, 100 Wn.2d at 677 (quoting Wood v. Georgia, 450 U.S. 261, 272 n.18, 67 L. Ed. 2d 220, 101 S. Ct. 1097 (1981)).
Finally, I think we cannot dispel the mandate of Richardson that the trial court make inquiry by mere speculation on the appropriateness of counsel's tactics. The majority ultimately has to bolster its holding on after-the-fact evaluation of counsel's decision not to call the witness. It is precisely because no inquiry was made that we can make no appraisal of the value or lack thereof of the testimony. The majority's suggestion that the testimony would be inadmissible is even more speculative. If no one objects, testimony is admitted. We can not divine whether any objection would have been made, nor whether, if made, it might have been sustained.
Once it is established that the trial court erred in failing to either ascertain that the risk of conflict was remote or appoint different counsel, we must reverse. An error of this nature by the trial court can never be harmless, Richardson, 100 Wn.2d at 676, and thus requires that we remand the case for a new trial.
Review denied at 112 Wn.2d 1026 (1989).
It appears from the record that counsel's other client, the juvenile, had not yet been tried, and thus, both clients had "active" cases.
Cuyler v. Sullivan, 446 U.S. 335, 347, 64 L. Ed. 2d 333, 100 S. Ct. 1708 (1980).