The possibility that a defendant's attorney could be a material witness in the case raises the possibility of divergent interests and courts have recognized an actual conflict of interest when a defendant's lawyer has engaged in conduct during the course of representation that could result in criminal charges or significant disciplinary sanctions. Armed individuals forcibly entered an apartment in a multi-family house. The residents fled out a window and called police. When police arrived, one suspect, Tomassa LaPorte, ran to a vehicle occupied by 15 year old Tommy F., and driven by Yadeil Figueroa. Officers arrested them. Following a jury trial, Figueroa was convicted of conspiracy to commit home invasion and aiding and abetting home invasion. He appealed claiming that his sixth amendment right to conflict free representation was violated from the prosecutor's insinuations regarding a meeting arranged by the defendant's attorney, Tina D'Amato, amongst D'Amato, the defendant, Tommy F., an interpreter and D'Amato's intern. The Appellate Court reversed the conviction concluding that the defendant demonstrated an actual conflict of interest that adversely affected his counsel's performance. On cross examination, the prosecutor, Cynthia Serafini, questioned the defendant about the meeting—whether he told Tommy what to say to get the defendant off, if the defendant positioned himself across from Tommy during the meeting, implying that it was to intimidate Tommy, and what D'Amato said. D'Amato objected. The court disallowed the line of questioning unless it came up inadvertently. Nevertheless, during cross-examination, Tommy agreed he felt intimidated during the meeting and that D'Amato told him she would help him out and try and get him less time. Both parties referenced the meeting in closing arguments. The record was adequate to review the claim that D'Amato's effectiveness was compromised by her participation in the meeting with Tommy and the suggestion that she may have attempted to offer consideration for favorable testimony. No one requested a mistrial. The record contained an actual conflict, no waiver and no withdrawal. The first conflict arose from the tension between D'Amato's continuing representation and need to testify about the meeting. The second conflict lay in her facilitation of the meeting and way it transpired, as her participation could have led the jury to view counsel as the defendant's accomplice in securing Tommy's favorable statement.

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