(concurring):
The incongruity of attempting, on the one hand, to assure an accused of the effective assistance of counsel, and, on the other, to sanction a critical confrontation between the accused and enforcement agents without the knowledge and consent of counsel already representing him has troubled the Federal civilian courts, as well as the military courts. Quite generally, the civilian courts have acknowledged that the practice of interrogation without counsel presents a risk of “significant erosion” of the attorney-client relationship, and “seriously jeopardize^]” counsel’s ability to provide the accused with effective assistance, but they have allowed it as “technically permissible.” United States v. Cobbs, 481 F.2d 196, 200 (3rd Cir. 1973), cert. denied, 414 U.S. 980, 94 S.Ct. 298, 38 L.Ed.2d 224 (1973). See also Moore v. Wolff, 495 F.2d 35 (8th Cir. 1974). As the principal opinion observes, however, our cases have leaned “squarely in the opposite direction.” It may, indeed, be time to prescribe the strong medicine of explicit disapproval.
I recognize that a requirement that interrogation of an accused known to have counsel representing him should not proceed “without affording counsel reasonable opportunity to be present” raises a number of questions. For example, how much advance notice must be given to counsel of the time and place of the interview; can counsel object to the time and place of a proposed interrogation, and, if he can, who can settle the dispute between counsel and the agent as to what is a proper place and proper time. Only experience with the new rule will indicate whether the problems I perceive are real or merely fanciful. For the present, I believe it sufficient to rely upon the good sense and professional standards of both counsel and enforcement agents to make the rule viable.