(concurring in the result):
When there is an untimely request for a termination or change of counsel, the request need not be granted unless the defendant establishes an “irreconcilable conflict, or a complete breakdown in communication between the attorney and the defendant.” See, e.g., United States v. Swinney, 970 F.2d 494, 499 (8th Cir.1992). Upon such a prima facie showing, the trial judge will hold a hearing on the risks presented and what action should be taken. Absent a prima facie presentation of an irreconcilable conflict or a complete breakdown of communication, there is no harm in failing to advise a defendant regarding retention of counsel, appointment of substitute counsel, or pro se representation.
In Holloway v. Arkansas, 435 U.S. 475, 484, 98 S.Ct. 1173, 1178, 55 L.Ed.2d 426 (1978), the Court concluded that when the trial defense counsel timely identifies and alerts the trial judge to a potential conflict of interest, the trial judge must “either ... appoint separate counsel or ... take adequate steps to ascertain whether the risk [of an actual conflict of interest] was too remote to warrant separate counsel.” The failure to take such steps “in the face of the representations made by counsel weeks before trial and again before the jury was impaneled” was held by the Supreme Court to deprive the defendant of “assistance of counsel.” Id.
“Based on the Sixth Amendment right to counsel and the Uniform Code of Military Justice, this Court has been diligent in ensuring the right to effective assistance of counsel, starting with the pretrial stage through appellate review.” United States v. Walters, 45 MJ 165, 166 (1996); see also United States v. Fluellen, 40 MJ 96 (CMA 1994). This right accrues regardless of indigency. United States v. Harris, 19 MJ 331, 336 (CMA 1985). While the convening authority has the discretion to accommodate a request for new counsel, the defendant is not entitled to replacement counsel, even pretrial, when there is only a difference as to tactics or strategy. RCM 505(d), 506(b)(3), (e), & (d), Manual for Courts-Martial, United States (1995 ed.). However, the defendant does have the right to obtain a civilian lawyer at no expense to the Government or to represent himself pro se. Cf. United States v. Mix, 35 MJ 283 (CMA 1992).
Since there has been no presentation of an “irreconcilable conflict, or a complete breakdown in communication” in this case, there was no error in failing to further advise appellant on the right to representation or to make further inquiry.