Attorney Dual Representation In Wisconsin

In State v. Kaye, 106 Wis. 2d 1, 315 N.W.2d 337 (1982), the supreme court directed the trial courts of this state to address at the arraignment any potential conflict of interest problem presented by an attorney's dual representation of codefendants. See id. at 14. The court issued this directive to "avoid such problems in the future." Id. The supreme court echoed the Kaye directive in Love, a case which presented the reverse of this case. See Love, 227 Wis. 2d at 62-63. There, the defendant's attorney at sentencing following revocation of probation had previously represented the State when the defendant was originally placed on probation under a withheld sentence. See id. In a Kaye situation, the potential conflict problem can be addressed by the trial court on its own because the attorney's dual representation of the multiple defendants will be self-evident. However, in cases like this and like Love, the trial court presumably will not be aware of the attorney's prior "reverse" representation. Thus, it properly falls to the lawyers who have knowledge of the potential conflict, and particularly to the lawyer who has the potential conflict, to bring the matter to the early attention of the trial court. Therefore, we construe the supreme court's directive in Love to apply not only to the trial court (assuming the court has knowledge of the potential conflict), but also to the attorneys who have knowledge of the potential conflict, and especially to the attorney who faces the potential conflict.