¶1concurring specially.
¶2Although I concur fully with all that is said in the majority opinion, I write separately to highlight my concern about the procedure of allowing defense counsel to represent a son accused of aggravated assault on his father, who is also being represented by the same defense counsel in another case in which the son is a co-defendant. I agree that this case contains an on the record waiver of the conflict from both the son and the father, and that this waiver by the son prevents him from asserting this issue in this appeal. Also, this case is less compelling because the father’s testimony shows that, despite being the victim of his son’s assault, the interests of the father and son in this case were not antagonistic: He wanted his son acquitted. Indeed, the only party apparently suffering prejudice from this arrangement was the prosecution. With more compelling facts, however, a different result might be reached. See Lemley v. State, 245 Ga. 350, 352 (1) (264 SE2d 881) (1980) (a conflict of interest can exist when defense counsel simultaneously represents a witness who is not a co-defendant, because counsel might not vigorously cross examine that witness).
¶3Further, courts must also consider the father’s interest in having counsel with undivided loyalties. As stated by our Supreme Court in Ellis v. State, 272 Ga. 763 (534 SE2d 414) (2000), “in a case like this one, where one attorney jointly represented conflicting interests, the evil is in what the advocate is compelled to refrain from doing. The test is whether the representation deprived either defendant of the undivided loyalty of counsel.” (Citation, punctuation and emphasis omitted.) Id. at 766. An attorney not representing the son might have pursued tactics that would have been antagonistic toward the son’s interest, but could have resulted in favorable treatment for the father in return for his testimony against the son.
¶4As allowing this arrangement only increases the probability of future difficulties, I urge the trial courts to prevent it.