concurring.
I concur in the result reached by the Court. I agree with the majority that “there is no presumed or per se rule of conflict of interest” regarding the representation of multiple defendants by staff attorneys at the same public defender’s office. Ante at 171.
The majority’s opinion has additional significance. In resolving the claims of ineffective assistance of counsel in this case, the Court uses a balancing approach. It holds that a conflict of interest with resulting prejudice to defendants will be presumed only when “the circumstances demonstrate a potential conflict of interest and a significant likelihood of prejudice.” Id. 171. This holding confirms two salient points. The first is the soundness of a flexible rule for dealing with the prejudicial effects of professional conflicts of interest. The second is the converse of that proposition, namely, the imprudence and wastefulness of a per se rule that automatically imputes irrebuttable prejudice from any potential conflict of interest and then mandates reversal of a criminal conviction no matter how fairly founded and free of actual prejudice.
Today’s decision is the third in a line of recent opinions by this Court on the subject of multiple representation. In State v. *176Land, 73 N.J. 24 (1977), a private attorney had represented codefendants at a criminal trial. In overturning the defendants’ convictions, we stressed the fundamental nature of the constitutional right to effective assistance of counsel. The Land case presented a conflict of interest that was either actual or generated a substantial likelihood of prejudice. The same attorney represented a husband and wife, each of whom was charged separately with the commission of a joint crime. It is in that particular context that we held: “[I]n the absence of waiver, if a potential conflict of interest exists, prejudice will be presumed.” Id. at 35.
The Land decision was followed by State v. Bellucci, 81 N.J. 531 (1980), a case in which a private attorney and his partner had represented codefendants at. a joint trial. While presented with a less obvious conflict, this Court nevertheless gave the Land test a sweeping application and ordered new trials for the defendants. Justice Pashman, writing for the majority, stated that “once a potential conflict exists, prejudice will be presumed in the absence of waiver.” 81 N.J. at 543.
What emerged from the Bellucci decision was a per se rule against multiple representation that established an irrebuttable presumption of prejudice to the defendant and mandated the reversal of an otherwise sound criminal conviction simply because of the existence of a potential conflict of interest. I wrote separately in that case because I found the majority’s solution to the problems posed by multiple representation in criminal cases to be far too extreme. The Court’s methodology for dealing with multiple defendant representation required the judicial cancellation of otherwise fair criminal trials.
In my estimation, these kinds of problems can be handled through a more tempered approach, which is entirely consonant with the constitutional interests that are implicated. In the absence of an actual conflict of interest, prejudice need be presumed only “where a potential conflict of interest is shown under circumstances generating a strong likelihood of actual *177prejudice to the defendant.” 81 N.J. at 547. This remedy accords a defendant sufficient constitutional protection without unnecessarily sacrificing the public’s strong interest in properly conducted, and concluded, criminal trials.
The instant case illustrates the soundness and workability of such an approach. In this case staff attorneys in the same public defender’s office represented individual codefendants against criminal charges relating to the same criminal events or transactions. The entire Court—including the dissent—recognizes that the potential for conflicts of interest in this situation is comparable to the representation of multiple defendants by private attorneys who are members of the same law firm. I agree with this assessment. Each of these situations is fraught with professional conflicts which potentially jeopardize the criminal defendant’s constitutionally protected right to effective assistance of counsel. See Bellucci, 81 N.J. at 531; Land, 73 N.J. at 24; Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).
Nevertheless, in this case the Court refuses to presume actual prejudice and does not apply a per se rule of reversal. Ante at 167. The Court here uses essentially the same flexible approach that I urged in Bellucci. It recognizes the potential for prejudice inherent in the multiple representation of defendants by associated attorneys and then engages in a factual inquiry to determine whether actual or likely prejudice resulted from such multiple representation. Significantly, the Court ultimately determines that there was no actual or probable prejudice demonstrated in this case and, therefore, no reversible error. Ante at 171, 172-173.
The Court also recognizes that while in this case it was confronted merely with a potential conflict, “should the circumstances demonstrate a potential conflict of interest and a significant likelihood of prejudice, the presumption of both an actual conflict of interest and actual prejudice will arise, without the necessity of proving such prejudice.” Ante at 171, 172-*178173. In my view, the Court’s general analysis and conclusions are eminently sound. My only difference with the majority concerns its continued adherence to a per se rule in regard to multiple representation by private attorneys. Ante at 171. Its reasons for doing so are not satisfactory.
The Court departs from the automatic reversal rule of Bellucci in this case because the potential for conflict in a public defender’s office is more attenuated than in a private law firm. This reason is really nothing more than a pretext. I agree with Justice Pashman, who dissents on the ground that there is no material difference between public and private attorneys in terms of the potential conflict and prejudice. Ante at 167-169. Because these situations are sufficiently similar, Justice Pashman criticizes the majority for refusing to apply the Bellucci per se rule in this context. I criticize the majority for refusing to repudiate the Bellucci rule.
Despite its reaffirmance of Bellucci, the majority’s determination today can only be construed as a significant, albeit implicit, modification of its per se rule of automatic reversal. At the very least, however, the Court’s adoption of a different approach for public defenders, as opposed to private attorneys, exposes the weaknesses of its per se rule.
An assumption underlying the Court’s decision is that there is a conflict of interest—to some degree—presented by the public defender’s representation of multiple defendants. The Court obviously considers the degree of potential conflict of interest to be more than de minimis. Otherwise, there would be no reason for its inquiry into whether there was “a significant likelihood of prejudice” caused by the conflict, however characterized. Ante at 171. ■
Stripped to its essence, the Court’s opinion must be understood to hold that, whenever there is simply a potential for conflict, an inquiry into actual prejudice or the substantial likelihood of prejudice to a defendant’s right to effective assistance of counsel should be undertaken. While the presence of an actual *179conflict of interest or a conflict generating a substantial likelihood of actual prejudice, such as in Land, permits the imputation of prejudice, the Court’s opinion today demonstrates that where the conflict is not patent, an inquiry into actual or likely prejudice should be undertaken unless the asserted conflict is truly de minimis.
Here, the factors that distinguish multiple representation by public defenders from multiple representation by private attorneys influence only the degree of the potentiality for conflicts of interest, not the existence vel non of such conflicts. The same concern for clients’ rights which we stressed in the Bellucci opinion presents itself with equal force whether the lawyers involved work at the same private law firm or the same public defender’s office. 81 N.J. at 541. See also Westinghouse Elec. Corp. v. Kerr-McGee Corp., 580 F.2d 1311, 1321 (7 Cir. 1978), cert. den., 439 U.S. 955, 99 S.Ct. 353, 58 L.Ed.2d 346 (1979). Logic, as well as sound policy, dictate that if all that is reasonably required in the one situation to protect a defendant’s rights is a factual inquiry into prejudice, that is all that need be undertaken in the other.
In our eagerness to fashion strong rules for governing the handling of professional conflicts of interest in multiple defendant criminal trials, we can easily smother our objective. By formulating absolute rules that are so extreme and inflexible, we may be forfeiting other significant values in the administration of criminal justice. The polestar of the criminal justice system remains the fairness of the trial and the justness of the verdict. See State v. Singletary, 80 N.J. 55, 64 (1979); State v. Deatore, 70 N.J. 100, 105 (1976). I submit that a per se rule that requires the automatic reversal of a well-founded criminal conviction is self-defeating nullification of the criminal process. By clinging to its automatic reversal rule, the Court appears “to strain at a gnat and swallow a camel.” Holy Bible, Matthew 23:24 (King James Version).
*180I do not gainsay the constitutional mischief that can arise in the unsupervised and uncorrected representation of multiple defendants. After a trial has been concluded, however, the focus must be on the nature, quality and degree of harmful prejudice suffered by a defendant as a result of multiple representation. It is only when a convicted defendant has suffered harmful injury to constitutional rights that he is entitled to another trial. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (167), reh. den., 386 U.S. 987, 875 S.Ct. 824, 17 L.Ed.2d 705; State v. Macon, 57 N.J. 325 (1971). The Supreme Court has sharpened this focus in Cuyler by positing as the standard for reversal of a conviction “an actual conflict of interest [that] adversely affected ... [the] lawyer’s performance.” 446 U.S. at 348, 100 S.Ct. at 1718, 64 L.Ed.2d at 346-47.
Concededly, there are situations where the prejudice is not provable but, under the circumstances, is so patent or likely that a defendant should not be required to demonstrate the actual impairment of his constitutional rights. However, in the broad middle ground between a de minimis conflict and an actual conflict, where the existence of neither an actual conflict nor real prejudice is obvious, a more flexible standard can adequately protect the constitutional rights of the criminal defendant to effective assistance of counsel without requiring the needless reversal of otherwise valid criminal convictions. See, e.g., Wood v. Georgia, 450 U.S. 261, 270-72, 101 S.Ct. 1097, 1103-04, 67 L.Ed.2d 220, 230-31 (1981) (an apparent “possibility of conflict” imposes on the trial court a duty to inquire further); Cuyler, 446 U.S. at 350, 100 S.Ct. at 1719, 64 L.Ed.2d at 348 (Brennan, J., concurring) (a “significant possibility” of conflict creates a presumption of prejudice); Bellucci, 51 N.J. at 546, 547 (Handler, J., concurring) (a presumption of prejudice will arise where potential conflict of interest generates “a strong likelihood of actual prejudice”).
It is hardly surprising, therefore, that this Court’s automatic reversal rule seems to stand alone, suggesting that it may indeed be aberrational. I am aware of no other jurisdiction that *181has opted for a per se rule requiring the automatic reversal of otherwise valid criminal convictions without a showing of actual or even probable prejudice. It does not appear that any other jurisdiction has adopted this absolutist approach to multiple representation situations when only a potential conflict of interest is presented. See, e.g., Cuyler, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333; United States v. Lawriw, 568 F.2d 98 (8 Cir. 1977), cert. den., 435 U.S. 969, 98 S.Ct. 1607, 56 L.Ed.2d 60 (1978); Haggard v. Alabama, 550 F.2d 1019 (5 Cir. 1977); Houston v. State, Ala.App., 401 So.2d 270 (1981); Sullivan v. State, Alaska, 509 P.2d 832 (1973); State v. Rogers, 110 Ariz. 582, 521 P.2d 1128 (1974); People v. Cook, 13 Cal.3d 663, 532 P.2d 148, 119 Cal.Rptr. 500, cert. den. 423 U.S. 870, 96 S.Ct. 135, 46 L.Ed.2d 100 (1975); People v. Romero, 189 Colo. 526, 543 P.2d 56 (1975); Palmer v. Adams, 162 Conn. 316, 294 A.2d 297 (1972); Isijola v. State, Del., 340 A.2d 844 (1975); Hall v. United States, D.C.App., 236 A.2d 57 (1967); State v. Youngblood, Fla., 217 So. 2d 98 (1968); Wright v. State, 158 Ga.App. 494, 280 S.E.2d 896 (1981); Pulver v. State, 93 Idaho 687, 471 P.2d 74 (1970); People v. Durley, 53 Ill.2d 156, 290 N.E.2d 244 (1972); Martin v. State, Ind., 314 N.E.2d 60, reh. den., Ind., 317 N.E.2d 430, cert. den., 420 U.S. 911, 95 S.Ct. 833, 42 L.Ed.2d 841 (1974); Jackson v. Aiger, Iowa, 239 N.W.2d 180 (1976); State v. Sullivan, 210 Kan. 842, 504 P.2d 190 (1972); Ware v. Commonwealth, Ky., 537 S.W.2d 174 (1976); State v. Johnson, La., 406 So.2d 569 (1981); Gayton v. Robbins, Me., 272 A.2d 776 (1971); Commonwealth v. White, 362 Mass. 193, 285 N.E.2d 110 (1972); State ex rel. Knott v. Tahash, 281 Minn. 305, 161 N.W.2d 617 (1968); Mooring v. State, Mo., 501 S.W.2d 7 (1973); State v. Jeffrey, 163 Mont. 92, 515 P.2d 364 (1973); Patterson v. State, 81 N.M. 210, 465 P.2d 93 (Ct.App.1970); People v. Crump, 53 N.Y.2d 824, 422 N.E.2d 815, 440 N.Y.S.2d 170 (1981); State v. Oliver, 23 Ohio App.2d 210, 262 N.E.2d 424, 52 Ohio Op.2d 308 (1970); Jones v. State, Okl.Cr., 527 P.2d 169 (1974); State v. Austin, 84 S.D. 405, 172 N.W.2d 284 (1969); Combs v. Turner, 25 Utah 2d 397, 483 P.2d 437 (1971); State v. Meyers, 86 Wash.2d 419, 545 P.2d 538 (1976); State ex *182rel. Postelwaite v. Bechtold, W.Va., 212 S.E.2d 69 (1975); State ex rel. White v. Gray, 57 Wis.2d 17, 203 N.W.2d 638 (1973).
The Court’s conclusion in this case confirms the desirability of a flexible rather than an absolute rule. Such an approach in no way minimizes the importance of the underlying constitutional right. See Land, 73 N.J. at 24. Indeed, the Court’s opinion provides clarity and direction in resolving these matters. Ante at 174-175. There is a need for strong rules to deter conflicts of interest that threaten the right to effective assistance of counsel. These rules should, whenever possible, be invoked prior to trial and, if need be, before the conclusion of a trial. Properly followed and applied, such rules should suffice to assure defendants effective assistance of counsel, without the uncritical resort to the automatic imputation of prejudice and the concomitant reversal of criminal convictions.
By following a balanced approach in this case, the Court has demonstrated that a flexible rule in multiple representation situations is feasible. Its decision illustrates that a judicial inquiry can properly be made to ascertain the nature of any asserted professional conflicts of interest and the extent of actual or probable prejudice to defendants’ rights engendered by that conflict. This approach better serves the fair, efficient and expeditious administration of criminal justice than does a per se rule that leads to automatic reversals of criminal convictions. I therefore urge the Court to extend this approach to multiple representation cases in general, rather than limit the holding to public defender cases.