concurring.
I agree with the result reached by the Court in this case. Under the circumstances, Bellucci was denied the effective assistance of counsel because his trial attorney was involved, realistically, in a situation fraught with professional conflict, which made it unlikely that he could fully represent his client with the singleness of responsibility and undivided loyalty expected of an effective attorney. Nevertheless, I am troubled by the apparent resort to a per se categorization of multiple representation as constituting ineffective assistance of counsel and a constitutional denial of that right. The acceptance of this per se categorization, characterized by the Court today as in effect “an absolute bar to multiple representation unless defendants are fully advised of the potential problems involved,” ante at 673, is not warranted. There is, in my view, a sounder and more *547balanced approach, that is, where a potential conflict of interest is shown under circumstances generating a strong likelihood of actual prejudice to the defendant, the presumption of both an actual conflict of interest and actual prejudice will arise, with such prejudice not having otherwise to be specifically proved.
State v. Land, 73 N.J. 24 (1977), relied on here by the Court, ante at 543, supports this preferred approach. In Land, the attorney’s conflict of interest was not potential, but rather was “apparent,” and the actual prejudice to a defendant was “obvious.” 73 N.J. at 36. See State v. Ebinger, 97 N.J.Super. 23, 27 (App.Div.1967), where the court, in reversing defendant’s conviction on the basis of ineffective assistance of counsel, found that there had been a “substantial” conflict of interest, a fact which the State had conceded. The Ebinger court noted that the codefendants, “at the time of trial, had substantially conflicting interests, and counsel could not serve the best interests of both of them at the same time.” 97 N.J.Super. at 25. See, e. g., State v. Green, 129 N.J.Super. 157, 164 (App.Div.1974) (“clear” prejudice due to the multiple representation appeared in the record and thus necessitated retrial); U. S. ex rel. Sullivan v. Cuyler, 593 F.2d 512, 519 (3 Cir. 1979), cert. granted sub nom. Cuyler v. Sullivan, - U.S. -, 100 S.Ct. 44, 62 L.Ed.2d 30 (1979).1
Such a conditionally presumptive rule would avoid the rigidity necessarily resulting from an absolute rule. It would adequately ensure the protection of the defendant’s constitutional right to effective assistance of counsel, U.S.Const. Amend. VI; N.J. *548Const. (1947), Art. I, par. 10. At the same time it would serve to vindicate the integrity of the criminal justice system in those cases in which a conviction is fairly founded and not truly tainted by trial counsel’s encumbered or diluted representation of his client.
Applying this balances approach to the facts in the present case would nevertheless not alter the outcome insofar as Bellucci is concerned. A potential conflict of interest was here shown under circumstances generating a strong likelihood of actual prejudice. The presumption of actual conflict of interest and actual prejudice was therefore created, which presumption was not sufficiently rebutted. Defendant Bellucci was thus denied the effective assistance of counsel, and a new trial is required accordingly.
HANDLER, J., concurring in the result. For affirmance as modified—Chief Justice WILENTZ and Justices SULLIVAN, PASHMAN, CLIFFORD, SCHREIBER, HANDLER and POLLOCK—7. For reversal—None.Subsequent to the date of this decision, the United Stated Supreme Court decided Cuyler v. Sullivan - U.S. -, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), vacating the judgment of the Third Circuit and remanding for further factual findings. The Court did, however, affirm the appellate court’s holding as to multiple representation in the following language: “We hold that the possibility of conflict is insignificant to impugn a criminal conviction. In order to demonstrate a violation of his Sixth Amendment rights, a defendant must establish that an actual conflict of interest adversely affected his lawyer’s performance.” 100 S.Ct. at 1718.