dissenting in part and concurring in part: I must dissent in part from the majority’s outcome and the analysis of my colleagues in arriving at that outcome. The practical effect requires automatic reversal of a conviction based on a presumption of prejudice whénever a district court is deemed to have inadequately inquired into a defense counsel’s motion to withdraw based on a claimed conflict of interest. The majority’s decision cannot be read any other way, and that is not my reading of the applicable caselaw under the Sixth Amendment to the United States Constitution.
In my view, in order to have his convictions reversed Stovall was required to demonstrate the alleged conflict was an active conflict of interest and adversely affected trial counsel’s performance. This defendant made no attempt in his briefing to argue this. More pointedly, it is clear from his briefing that defendant did not un*385derstand what was necessary to demonstrate a violation of his right to conflict-free counsel under die Sixth Amendment. I would affirm the convictions.
The obvious factual inquiry presented by this case is a narrow one: Did the Court of Appeals err when it held Stovall failed to brief whether the claimed conflicts of interest adversely affected his counsel’s performance and instead focused “only on the district court’s failure to make an adequate inquiry upon notice of a potential conflict?” (Emphasis added.) State v. Stovall, No. 100,704, 2010 WL 1379512, at *5 (Kan. App. 2010) (unpublished opinion). No reasonable reading of Stovall’s brief to the Court of Appeals can dispute the factual accuracy of the panel’s holding concerning the written document before it.
And from this unavoidable factual observation, we necessarily arrive at the legal question: Was it necessary for Stovall to argue in his appellate brief that the claimed conflicts of interest adversely affected his counsel’s performance? If so, then the Court of Appeals was correct because Stovall did not mention this requirement—not even in passing. See State v. Longstaff, 296 Kan. 884, 891, 299 P.3d 268 (2013) (“A claim raised in passing without argument or citation to authority is deemed waived.”); see also Supreme Court Rule 6.02(a)(5) (2012 Kan. Ct. R. Annot. 38) (appellant’s brief must include “the arguments and authorities relied on”).
The Sixth Amendment guarantees in “all criminal prosecutions” that “the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” And this right to counsel is the right to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied 467 U.S. 1267 (1984); Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468 (1985) (adopting Strickland). In other words, to be meaningful the right to counsel necessitates more than a lawyer’s mere presence at a proceeding. See State v. Galaviz, 296 Kan. 168, 174, 291 P.3d 62 (2012). This constitutional right extends a duty of loyalty to the client, which dictates that a defendant in a criminal trial must have representation that is free from conflicts. State v. Cheatham, 296 Kan. 417, 430, 292 P.3d 318 (2013).
*386“The purpose of the effective assistance guarantee ‘is simply to ensure that criminal defendants receive a fair trial/ ” Galaviz, 296 Kan. at 174 (quoting Strickland, 466 U.S. at 689). The Sixth Amendment right to counsel is made applicable to state proceedings by the Fourteenth Amendment to the United States Constitution. 296 Kan. at 174. Ineffective assistance of counsel claims may be based on deficient performance or conflict of interest. But claims based on conflict of interest may be analyzed differently than those based on deficient performance. Cheatham, 296 Kan. at 430.
This court recently reviewed the required inquiries attendant to conflict-of-interest-based ineffective assistance of counsel claims in Galaviz. In that case, the court declined to automatically reverse a defendant’s probation revocation solely because the district court failed to sua sponte inquire into a potential conflict after defense counsel disclosed that he previously represented the victim whose allegations led to the conviction underlying the defendant’s probation. Galaviz, 296 Kan. at 171. We held the defendant’s probation revocation could not be reversed unless defendant demonstrated counsel’s active conflict of interest “had an adverse effect on his representation.” (Emphasis added.) 296 Kan. at 193. In so deciding, we revisited caselaw from our court and the United States Supreme Court regarding ineffective assistance of counsel claims and claims of conflict between defendants’ and their counsels’ interests. 296 Kan. at 180-82.
Galaviz adopted a two-step analytical process. The first step is determining whether there was “an active conflict of interest!.]” The second step is deciding whether “the conflict require[s] reversal!.]” 296 Kan. at 178-180. We described three subclasses of “active conflict of interest” arising from the United States Supreme Court case of Mickens v. Taylor, 535 U.S. 162, 122 S. Ct. 1237, 152 L. Ed. 2d 291, reh. denied 535 U.S. 1074 (2002). 296 Kan. at 181-85. The test for whether reversal is required depends on the conflict subclass at issue. But only one subclass qualifies for automatic reversal based upon the district court’s failure to inquire: when a defendant or his attorney timely objects to the lawyer’s multiple concurrent representations of clients with antagonistic in*387terests. Galaviz, 296 Kan. at 183. The majority concedes Stovall’s case does not fall within this subclass because there were no multiple concurrent representations.
Galaviz noted that cases falling within the other two subclasses warrant reversal only if the defendant can demonstrate both the existence of an active conflict ánd an adverse effect arising from the conflict. But, we noted, there remains some uncertainty in the caselaw as to what level of “adverse effect” must be shown in a case falling within the third subclass—conflicts “ ‘rooted in counsel’s obligations to former clients’ or ‘counsel’s personal or financial interests.’ ” 296 Kan. at 184 (quoting Mickens, 535 U.S. at 174). As we noted in both Galaviz and Cheatham as to the third subclass of cases, it was undecided at the time of those decisions whether courts should use the adverse effect test or the more stringent Strickland test requiring a defendant to show a reasonable probability that, but for counsel’s conflict of interest, the result of the proceeding would have been different.
The majority concedes Stovall’s case falls within the third Galaviz subclass. We referred to this subclass in Galaviz as “the Mickens reservation.” 296 Kan. at 182. And in Galaviz, we applied the adverse effect test because both the defendant and the State advocated for its use. Galaviz, 296 Kan. at 192. In Cheatham, we also applied the adverse effect test because the parties advocated for it and applied it in their respective arguments. Cheatham, 296 Kan. at 449. In Stovall’s case, in a dedicated section of its Court of Appeals brief on that topic, the State expressly argued application of the adverse effect test was required.
But the point to all of this is, regardless of whether tire adverse effect or Strickland test applies to third-subclass cases like the one here, Stovall failed to make any argument under either. As the State points out, Stovall did not argue in his brief “in the slightest that the alleged conflict [of interest] between himself and his trial counsel had any legitimate and tangible effect on his trial.”
And this brings me to my most serious disappointment with the majority’s opinion: it invents for the defendant an argument that was never made. The majority states:
*388“Nevertheless, as we have alluded to above, Stovall’s appellate brief did identify some of the adverse effects that he claimed emanated from his attorney’s conflicts. The brief quoted Stovall’s statement to the district court that the court’s refusal to grant his attorney’s withdrawal motions ‘ “gave her a chance to basically sabotage my defense ... she violated the communications rules” ’ and her performance adversely ‘ “affected me getting a fair trial.” ’ The brief relates back the adverse effect to the conflict by quoting Stovall’s statement that the trial court’s denial of his attorney’s withdrawal motions ‘ “allowed her to reck [sic] her vengeance on me for testifying on another of her clients before trial.” ’ Clearly, Stovall’s brief claimed that his attorney’s conflicts of interest adversely affected the adequacy of his attorney’s representation in this case.” (Emphasis added.) 298 Kan. at 373.
To put it bluntly, this statement deceives its readers. The quoted phrases are snipped from Stovall’s appellate brief in a recitation of facts regarding die third motion to withdraw from the sentencing hearing—not argument about adverse effect at trial—and in their actual context are used by Stovall only to show why he believed the district court was required to make a more adequate inquiry into the alleged conflicts of interest and abused its discretion in denying the third motion to withdraw at the sentencing hearing without an adequate inquiiy. These factual scraps are in no way used to advance an appellate-level argument that counsel’s performance was adversely affected at trial. See Supreme Court Rule 6.02(a)(5).
Also baffling is the effort to speculate whether denial of the second motion to withdraw involving the potential conflict with possible witness Pascha adversely affected counsel’s later representation at trial. The majority asserts that the purpose of calling Pascha would have been to implicate him as “the abuser.” It then quotes the Bible about the impossibility of serving two masters and concludes: “The inability of defense counsel to serve the interests of both Stovall and Pascha necessarily affected the adequacy of her representation of Stovall.” (Emphasis added.)
Curiously, this determination is asserted even though Stovall’s counsel expressly agreed during oral argument that he had made no argument that this potential conflict adversely affected trial counsel’s performance. And the majority engages in its “analysis” without even considering there might just be alternative explanations why Pascha was not called other than the only one considered. *389For example, it might be that Pascha was not called because the evidence that Stovall was the abuser included that the DNA of a child born to the underage victim matched Stovall’s DNA. And it does not seem too far of a reach that the jury might view accusing Pascha as “the abuser” as less than credible under these circumstances, and that abandoning the accusation altogether would be an appropriate trial strategy. It also just might be that Pascha was unavailable.
The point of having an adequate record on appeal and actual appellate arguments on these points is to avoid the temptation to speculate. Regardless, Stovall conceded no adverse effect argument was advanced on appeal concerning Pascha, so why does the majority conjure one up for him?
It is also stunning to suggest that a harmless error standard might be a more appropriate “common sense perspective” for the ineffective assistance of counsel legal analysis'—with the burden being on the State to demonstrate harmlessness beyond a reasonable doubt, citing a 1995 law review article regarding Strickland. It is asserted such an approach is preferable to “saddling the defendant with the additional burden of proving adverse effect after having proved an abuse of discretion.”
But this suggestion is oblivious to Sixth Amendment caselaw arising since 1995, most notably the 2002 Mickens decision that went to some lengths to develop and recast this jurisprudence. Mickens controls because we are addressing Stovall’s right to conflict-free counsel under the Sixth Amendment and Mickens makes clear that reversal of a conviction under the circumstances applicable in Stovall’s case is not automatic and requires him to show prejudice, although admittedly it is still undecided whether the test for prejudice is adverse effect on counsel’s performance or the stricter Strickland requirement that the error affected the outcome of the proceeding.
This is exactly the approach we recently took in Cheatham in which the claim was a conflict of interest based on counsel’s personal or financial interests, a conflict akin to one “ ‘rooted in counsel’s obligations to former clients [,] ’ ” and in the same Galaviz subclass. Galaviz, 296 Kan. at 184 (quoting Mickens, 535 U.S. at 174). *390In Cheatham, we held: “Two questions must be answered to resolve this claim: (1) Did this fee agreement create a conflict of interest? and (2) If so, did that conflict of interest adversely affect the adequacy of Cheatham’s representation?” 296 Kan. at 452.
In Stovall’s appeal, he argued to the panel that the district court abused its discretion in denying tire motions to withdraw by inadequately inquiring into the potential conflicts, and the panel agreed to that much. Stovall, 2010 WL 1379512, at *4-5. But is the test any different when an appellate court holds that the district court erred by failing to sua sponte inquire at all into a conflict that is made known to it? The answer is “no.” See Mickens, 535 U.S. at 170-73; Galaviz, 296 Kan. at 187; State v. Vann, 280 Kan. 782, 792, 127 P.3d 307 (2006) (noting appropriate remedy could be remand for determination whether defendant can demonstrate conflict adversely affected counsel’s performance). In either instance (failure to inquire or inadequate inquiry), the test moves under the circumstances here to whether the conflict existed and, if so, whether it adversely affected counsel’s performance, after a determination that the trial court abused its discretion regarding the inquiry.
Accordingly, after Stovall established that the trial court made an inadequate inquiry, he had to choose between two courses: First, he could have asserted the record on appeal was sufficient to demonstrate counsel was conflicted and then go on to show that the conflicts adversely affected counsel’s performance. See Cheatham, 296 Kan. at 450; State v. Gleason, 277 Kan. 624, 650-52, 88 P.3d 218 (2004). Or, in the alternative, he could have requested remand to the district court for an evidentiary hearing under State v. Van Cleave, 239 Kan. 117, 119-21, 716 P.2d 580 (1986) (appellate court discretion to remand ineffective assistance of counsel allegations in a direct appeal); see State v. Jenkins, 257 Kan. 1074, 1079-80, 898 P.2d 1121 (1995); see also Galaviz, 296 Kan. at 194 (“Galaviz has not requested a Van Cleave hearing. Normally, this would mean we would not consider his [conflict-based ineffective assistance] claim and he would have to bring his claims in a proceeding under K.S.A. 60-1507.”).
*391But Stovall stopped his argument short of the goal line, as the Court of Appeals correctly determined, with the abuse of discretion issue. And it is difficult to understand why Stovall’s argument would be so incomplete. To begin with, in the Court of Appeals his failure to brief the adverse effect test was pointed out specifically and prominently by the State in its responsive brief. There, the State highlighted this shortcoming in a section of its brief entitled “Stovall has not shown the alleged conflict adversely affected counsel’s performance.” In that section, the State argued, for example, that “[i]n order to prevail, therefore, Stovall is required ‘to establish that the conflict of interest adversely affected . . . [his public defender’s] performance,’ ” citing Mickens. Yet Stovall did not reply to this obvious prompting, even though he would have been permitted to do so under our rules. See Kansas Supreme Court Rule 6.05 (2012 Kan. Ct. R. Annot. 45).
What seems most likely is that Stovall did not understand his obligations under the caselaw that follows Mickens. This possibility appears from a review of Stovall’s petition for review to our court in which Stovall asserted the Court of Appeals erred in holding that he had failed to argue adverse effect because “[i]n its analysis of this case, the Court of Appeals did not differentiate between prejudice and presumption of prejudice as it applies to the facts of the case. The United States Supreme Court makes clear in those cases where actual conflicts are present there is a presumption of prejudice.” (Emphasis added.)
This statement in Stovall’s petition follows a lengthy block quote from Strickland. And by making repeated references in his petition for review to “actual conflicts of interest,” Stovall appears not to appreciate that this phrase carries a particular meaning under Sixth Amendment caselaw. As we noted in Galaviz, the Mickens Court explained the phrase “actual conflict of interest” “means more than a mere division of loyalties; it requires a conflict that affected counsel’s performance.” (Emphasis added.) Galaviz, 296 Kan. at 186 (citing Mickens, 535 U.S. at 172 n.5). Clearly, Stovall did not understand this, or had no argument to advance toward it, and believed that showing the factual existence of a conflict was all that was required of him.
*392For these reasons, I would affirm the Court of Appeals as to Stovall's convictions. The panel accurately determined that Stovall did not argue that the claimed conflicts of interest adversely affected his counsel’s performance, but instead focused “only on the district court’s failure to make an adequate inquiiy upon notice of a potential conflict.” (Emphasis added.) Stovall, 2010 WL 1379512, at *5. In addition, I would hold Stovall was not entitled to reversal upon simply demonstrating the district court abused its discretion in denying his counsel’s motions to withdraw after an inadequate inquiiy. Rather, Stovall was required to further demonstrate that an active conflict existed and that the conflict adversely affected his attorney’s performance. See Cheatham, 296 Kan. at 452; Galaviz, 296 Kan. at 178-180. His brief is devoid of the necessary arguments to obtain relief.
I concur in the court’s holding regarding Stovall’s sentencing.
Nuss, C.J., and Moritz, J., join the foregoing dissenting and concurring opinion.