What is the current state of the law on the basis of a potential conflict of interest?

A trial court may decline to relieve defense counsel if it determines that the risk of a conflict of interest is too remote; in making its determination, the court may rely on representations of defense counsel that no conflict exists. (People v. Lawley (2002) 27 Cal.4th 102, 146.)

Whether a conflict exists is a "highly fact-intensive" question that is dependent on numerous "factors, including, but not limited to, whether the [trial] attorney has confidential information that is helpful to one client but harmful to another; whether and how closely the subject matter of the multiple representations is related; how close in time the multiple representations are related; and whether the prior representation has been unambiguously terminated." (United States v. Infante (5th. Cir. 2005) 404 F.3d 376, 392.) For example, "[a] conflict may arise if a former client is a witness in a new case because the attorney is forbidden to use against a former client any confidential information acquired during that attorney-client relationship. [Citations.] [] But if the attorney possesses no such confidential information, courts have routinely held that no actual or potential conflict of interest exists." (Cox, supra, 30 Cal.4th at p. 949.)

A conflict of interest also may exist when defense counsel places himself in a position conducive to divided loyalties, such as when a counsel has to choose between vigorously cross-examining a former client (which might jeopardize the former client's future legal rights and remedies) and not vigorously cross-examining the former client (which would risk allowing the prosecution to use the former client's testimony to establish an essential element of the case against counsel's current client.) (U.S. v. Infante, supra, 404 F.3d at pp. 392-393.) However, there is no actual conflict of interest unless "defense counsel is compelled to compromise his or her duty of loyalty or zealous advocacy to the accused by choosing between or blending the divergent or competing interests of a former or current client." (Perillo v. Johnson (5th Cir. 2000) 205 F.3d 775, 781.)