The following excerpt is from U.S. v. Kenney, 911 F.2d 315 (9th Cir. 1990):
The appellant argues that the trial court erred in disqualifying counsel because there was no showing that an actual conflict of interest existed. This assertion misapprehends the appropriate test in this situation. An actual conflict must be shown only when the appellant is attacking a conviction on appeal or in habeas proceedings on the basis of an alleged conflict of interest. See Cuyler v. Sullivan, 446 U.S. 335, 346-47, 100 S.Ct. 1708, 1717, 64 L.Ed.2d 333 (1980). Here the potential for a conflict of interest was sufficient. Were it otherwise "trial courts confronted with multiple representations [would] face the prospect of being 'whip-sawed' by assertions of error no matter which way they rule." Wheat, 108 S.Ct. at 1698.
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