concurring in part and dissenting in part.
I join in the Court’s determination that “the significant likelihood of an actual conflict [between defense counsel] and resultant prejudice,” ante at 35, 697 A.2d at 525-26, requires that Norman’s petition for post-conviction relief be granted. In my view, the same factors and reasoning justify granting Duncan’s petition. I therefore dissent from that portion of the Court’s judgment that reverses the grant of Duncan’s petition for post-conviction relief.
*40The Court determines that because Roberts and Pedieini did not formally begin their partnership until after Duncan’s trial, the per se rule presuming prejudice that we adopted in State v. Bellucci, 81 N.J. 531, 541-46, 410 A.2d 666 (1980), did not apply to these appeals. Ante at 29, 697 A.2d at 522. The Court’s conclusion in that respect is shaky, inasmuch as Roberts identified himself during Duncan’s trial as Pedicini’s partner, suggesting that whenever the firm formally may have commenced operations Roberts regarded the partnership as sufficiently formalized to acknowledge its existence in open court. But even if the Court defers to the trial court’s factfinding about the official commencement of the partnership, the relationship of the lawyers concerning these defendants posed the very same danger and potential for conflict that would have existed had they been partners. The source of their fee was Duncan’s bail money, which had been assigned to Roberts, and the record reveals only that Roberts agreed to split his fee with Pedieini. The record is silent about whether either Duncan or Norman authorized that compensation arrangement. Thus, for purposes of evaluating whether Bellucci’s per se rule should apply, the fee arrangement between defense counsel, who were sharing offices at the time, was the substantial equivalent of a de facto partnership. As far as representation of these two defendants was concerned, Roberts and Pedieini were engaged in a joint venture, with a single source of compensation, in which they were obligated effectively to represent different clients with conflicting interests. Cf. In re Abrams, 56 N.J. 271, 275-76, 266 A.2d 275 (1970) (finding inherent conflict of interest and disciplinary violation where attorney representing defendant charged with gambling offense agreed to be paid by defendant’s employer whose interests necessarily conflicted with those of defendant).
Moreover, if Roberts’ representation of Duncan is evaluated on the basis of an actual prejudice standard, the Court’s conclusion is difficult to justify. The Court concedes that the available testimony of Alvin Norman, defendant Norman’s brother, that Norman and not Duncan was the shooter would have been admissible at *41Duncan’s trial. Ante at 31, 697 A.2d at 523. The Court concludes, however, that even if Alvin had so testified Duncan inevitably would have been convicted of murder as an accomplice, with the result that Roberts’ failure to call Alvin did not establish a substantial likelihood of prejudice to Duncan. The Court’s conclusion is flawed. In view of the lesser included offenses of aggravated manslaughter, manslaughter, and assault that were presented to the jury during Duncan’s trial, the prediction that a jury exposed to Alvin’s exculpatory testimony necessarily would have convicted Duncan of murder as an accomplice is too uncertain to support the Court’s result. Even with hindsight, an understanding of why Duncan’s lawyer did not call Alvin as a witness remains elusive. The Court should not speculate about the jury verdict that would have been returned if Duncan’s jury heard Norman’s brother testify that Norman admitted killing Holmes. Sufficient evidence to establish the requisite likelihood of prejudice exists on this record to sustain the Appellate Division’s disposition of Duncan’s petition for post-conviction relief.
For reversal and remandment — Chief Justice PORITZ and Justices HANDLER, POLLOCK, O’HERN, GARIBALDI and COLEMAN — 6.
Concurring in part; Dissenting in part — Justice STEIN — 1.