In this Lincoln County case, the defendant’s trial counsel also represented the City of Lincolnton. Lincolnton police officers investigated and charged the defendant and testified at his trial. After the charge conference, the defendant expressed concerns about his attorney’s potential conflict of interest. Trial counsel responded that he had not communicated with the police department about the case and that he believed no conflict of interest existed. The defendant acknowledged he had been aware of this issue for at least one year. When asked by the trial court if he wished to question his attorney on the issue, the defendant declined. The trial court made no factual findings or legal conclusions on the matter. The jury returned guilty verdicts and the defendant appealed, alleging ineffective assistance of counsel based on his trial counsel’s conflict of interest.

The defendant’s right to counsel includes the right to conflict-free representation. Looking to the Rules of Professional Conduct for guidance, the court observed:

[A] conflict of interest that cannot be waived arises where law enforcement officers testify against a defendant and the defendant’s appointed counsel also advises the officers’ department or its members and, in effect, represents the officers who are prosecuting witnesses against the defendant. Slip op. at 8.

The trial court erred in failing to investigate the potential conflict of interest claim more thoroughly. While trial counsel represented to the court that he had no contact with the police department about this case, “the trial court failed to determine the extent to which [the defense attorney’s] role as city attorney required him to advise or represent the Lincolnton Police Department or its individual officers.” Id. This information was necessary to determine whether a conflict existed. The trial court also erred in placing the burden on the defendant to ask questions about the potential conflict:

[W]hen a trial court is made aware of a possible conflict of interest prior to the conclusion of a trial, ‘the trial court must ‘take control of the situation.’’ Where the trial court ‘knows or reasonably should know’ of ‘a particular conflict,’ that court must inquire ‘into the propriety of multiple representation.’ Id. at 5 (citations omitted).

The matter was therefore remanded for the trial court to conduct a proper inquiry into the potential conflict of interest. If the trial court determines that defense counsel actually represented or advised the police department or its officers “at any relevant time,” the defendant would be entitled to a new trial based on the non-waivable conflict of interest. If no conflict of interest is found to have existed, the defendant’s convictions will remain intact.