Opinion of the Court
Robert E. Quinn, Chief Judge:This appeal brings up for review the correctness of the law officer’s ruling admitting into evidence three depositions on behalf of the prosecution.
The accused was charged with desertion terminated by apprehension. He was absent for approximately one and one-half months. The charge sheet listed two witnesses for the prosecution, both of whom were in the accused’s organization. In the pretrial investigation, statements from these and two defense witnesses were submitted. In addition, the investigating officer examined three documents which he appended to his report as exhibits. The first was an extract copy of entries in the Morning Report of the accused’s unit, which, in part, showed that he had been apprehended in Paris and later transferred to the provisional guardhouse in Stuttgart, Germany, the location of his organization; the second was a completed form entitled “Enlisted Personnel Data”; and the third was a record of previous convictions. On April 10, 1956, the investigating officer filed his report in which he recommended trial by general court-martial.
Four days after the investigating officer submitted his report, the charges were served upon the accused. On the •same day, April 14, 1956, his appointed defense counsel was verbally notified by trial counsel that oral depositions would be taken from “six possible witnesses” in Paris, and “any other people who might throw light on this case.” Defense counsel objected to the procedure. He contended that the only material information in the file available to him consisted of the Morning Report entries and a Criminal Investigations Detachment statement in which the important part was a paragraph referring to the accused’s apprehension, and which noted that he had made an incriminating statement. Defense counsel maintained that, in view of the meager information he had, to take the depositions of “possible” witnesses in accordance with the proposed procedure would, in effect, be a trial of the accused “in absentia.” He requested that the potential witnesses be brought to Stuttgart, a distance of about 350 miles from Paris; or that he and the accused be allowed to go to the latter city for the taking of their depositions. Trial counsel agreed. However, the defense request was denied by the staff judge advocate. On April 19, in a formal motion for appropriate relief addressed to the convening authority, but routed through the staff judge advocate, the defense counsel again objected to the procedure and renewed his request for permission to be present with the accused at the taking of the depositions. This motion was denied by the staff judge advocate, and there is nothing to show that it was acted upon by the convening authority.
In the latter part of May, oral depositions were taken from three persons in Paris. Two officers were designated by the Commanding Officer of Seine Area Command to represent the prosecution and the accused, respectively. The prosecution lawyer was a member of the Judge Advocate General Corps, and the defense attorney, Captain Falkenstrom, was an infantry officer certified in accordance with Article 27(b), Uniform Code of Military Justice, 10 USC § 827. As far as the record shows, Captain Falkenstrom never communicated with the accused, who was in confinement in Stuttgart. According to trial defense counsel, the accused never saw Captain Falkenstrom, never consulted with him, and never consented to his appointment as his attorney for the depositions. Sometime after the denial of his formal motion objecting to this procedure, trial defense counsel prepared a memorandum for “the person who would be representing the accused.” He did so “under protest since that was the situation that was going to take place,” and he believed that it might possibly help the accused. However, he had never seen any statements from the *459prospective witnesses, and he ■ did not know what questions would be put to them. As a result, he felt that he did not accomplish “very much” by his memorandum.
At the trial, defense counsel objected to the admission in evidence of three depositions. One of the grounds of his objection was that they were improperly taken. In support of his objection he testified to substantially all of the matters set out above. His testimony is uncontradicted.
In the absence of consent or waiver, depositions are inadmissible in evidence unless they satisfy the requirements prescribed by law. United States v Drain, 4 USCMA 646, 16 CMR 220; United States v Young, 2 USCMA 470, 9 CMR 100; United States v Barcomb, 2 USCMA 92, 6 CMR 92. Tested by that standard, the depositions in this case are inadmissible.
Article 49 of the Uniform Code, 10 USC § 849, provides that if a deposition is to be taken “before charges are referred for trial,” a competent court-martial authority can designate officers to represent the parties. The reason for this provision is readily apparent. Until the charges are referred to trial, the accused usually has no counsel, and “technically no person represents the Government.” Feld, A Manual of Courts-Martial Practice and Appeal, § 36 (1957); see also Everett, Military •Justice in the Armed Forces of the United States, page 223 (1956). Significantly, however, Article 49 confers no like authority for the taking of a deposition after the charges are referred for trial. On reference of the charges to trial, both parties have counsel, and, consequently, Congress unquestionably expected that there would be no need for the appointment of separate counsel for the taking of a deposition. Whether we are correct in this assumption, however, is immaterial. In unequivocal language, Congress limited the right of a court-martial authority to designate counsel for the taking of a deposition. His power is restricted to a case in which the charges have not yet been referred to trial. By clear implication, Article 49 precludes-the designation of counsel for a deposition after the charges are sent to trial and the parties are already represented by counsel.
The Manual for . Courts-Martial,'; United States, 1951, implies that the' power to designate separate counsel for the taking of the deposition exists even after reference of the charges to trial. Paragraph 117g. Thus it provides that: i
“If, after charges are referred for trial, depositions are to be taken on oral examination rather than on written interrogatories, each party concerned will indicate in a separate letter or memorandum the reasons for the deposition and the points desired to be covered in the oral examination of the witness. . . .
“Upon receipt of the approved letters or memoranda, the commanding officer or other person. to whom the papers are sent, as contemplated in subparagraph c above, will, whenever practicable, in addition to designating a person authorized by law to administer oaths to take the deposition, detail officers, preferably officers experienced in the duties of trial counsel and defense counsel, respectively, to represent both sides in propounding the oral questions which upon being propounded will be reduced to writing as will the answers thereto.”
To the extent that this provision fails to distinguish between the power to designate counsel before charges are referred to trial and the power to do so after the reference, it is contrary to Article 49, and it is invalid. United States v Lampkins, 4 USCMA 31, 15 CMR 31. Neither United States v Parrish, 7 USCMA 337, 22 CMR 127, nor United States v Sutton, 3 USCMA 220, 11 CMR 220, is contra to this conclusion. The question was not considered in those cases. Also, we were concerned with written interrogatories in which counsel appointed to represent the accused, and who prepared or examined the interrogatories, were the *460same as those appointed for the trial. Finally, in the Parrish case, the interrogatories were prepared before the charges were referred to trial and the accused had a civilian attorney who participated in their preparation.
It is arguable that, despite the absence of power, a designation of counsel for the taking of a deposition is effective if consented to by the accused. In other words, an accused can affirmatively establish an attorney-client relationship with the designated representative, and thereby become bound by the appropriate acts of the latter. See United States v Cambridge, 3 USCMA 377, 382, 12 CMR 133. However, an attorney-client relationship is not created by the mere designation of a representative for the accused by a court-martial authority. United States v Nichols, 8 USCMA 119, 23 CMR 343. There must be an acceptance of the appointment by the accused. Here, the uncontradicted evidence shows that the designated counsel never consulted or communicated with the accused. Nor does it appear that he attempted to communicate with the accused’s trial attorney. True, the latter forwarded a memorandum to the “person who would be representing the accused,” but he had no knowledge of who the witnesses would be or what questions they would be asked. In any event, he submitted his memorandum “under protest.” Moreover, his only ■knowledge of the qualifications of designated counsel came from the recitals in the depositions and from a telegram, ¡the addressee of which is undisclosed, jit cannot, therefore, be said that trial defense counsel, acting for the accused, approved Captain Falkenstrom’s appointment as “of counsel” for the taking of the deposition. The evidence shows that no attorney-client relation-jship was established between the accused and Captain Falkenstrom.
; Another serious deficiency appears in ,the procedure under which the depositions were taken. The Manual for Courts-Martial provides that if an oral deposition is desired after charges are referred to trial the party seeking the ’deposition:
“. . . will indicate in a separate letter or memorandum the reasons for the deposition and the points desired to be covered in the oral examination of the witness. Subsequent to submission to and inspection by opposing counsel, the papers will be submitted to the convening authority. . . .” [Paragraph 117g.]
The record contains no such letter or memorandum. On the contrary, it appears that none was submitted. Defense counsel testified without contradiction that he was “verbally” informed of the fact that depositions would be taken by the judge advocate general personnel in Paris. He also stated that he had no knowledge of the questions that would be asked the witnesses. Although a legitimate distinction can be drawn between the “points desired to be covered” in the depositions and the specific questions to be put to the witnesses, defense counsel’s testimony strongly implies that he did not know of the “points.” The inference is fortified by the fact that the prosecution did not merely propose to take the testimony of named witnesses, but also of “any other people who might” come into the case. As a matter of fact, the record does not show that the names of the witnesses whose depositions were actually taken were submitted in advance to the accused or his attorney. As a result, neither the accused nor his attorney could prepare possible impeachment matter. Practically, from the accused’s standpoint, a substantial part of the case against him was made by nameless witnesses. A procedure of that kind is incompatible with a fair trial.
A third defect in the procedure consists of the denial by the staff judge advocate of both the informal request and the formal motion for appropriate relief. The power to pass on a motion before trial in a matter of this kind lies with either the law officer of the court-martial or the convening authority. Manual for Courts-Martial, United States, 1951, paragraph 117g. See also United States v Thornton, 8 USCMA 446, 24 CMR 256. That power is judicial in nature and cannot be delegated. *461United States v Butts, 7 USCMA 472, 22 CMR 262. The record supports the conclusion that the convening authority either never heard of the formal motion or that he delegated his authority to act to the staff judge advocate. In either case, the procedure is invalid.
Under the circumstances, the law officer erred in admitting the depositions into evidence. Error in the admission of evidence, however, does not itself justify reversal of a conviction. The error must have some prejudicial effect upon a substantial right of the accused. United States v Aldridge, 4 USCMA 107, 15 CMR 107.
No real issue was presented as to the fact of the accused’s unauthorized absence. Part of the defense case contained references to that absence. Hence, there is no “fair risk” that the inadmissible deposition testimony influenced the court-martial in its determination that the accused was absent without authority for the period alleged and proven. That finding can be affirmed without affecting any substantial right of the accused.
The decision of the board of review is reversed. The record of trial is returned to The Judge Advocate General of the Army for resubmission to the board of review. In its discretion, the board of review may affirm findings of guilty of an unauthorized absence, in violation of Article 86, Uniform Code of Military Justice, 10 USC § 886, and reassess the sentence on that basis, or it can order a rehearing on the original charge.