(concurring in part and dissenting in part):
Nothing in the records of trial that have come to this Court since United States v. Davis, 3 M.J. 430 (C.M.A.1977), convinces me that single counsel representation of multiple accused is so inherently or empirically “beset with conflict as to constitute a ‘problem’ ” that requires a solution. Id. at 435 (Cook, J., dissenting). Certainly, no history of “continual and often repeated claims of error” exists to make “it appropriate and expedient to take corrective action.” United States v. Goode, 1 M.J. 3, 6 (C.M.A.1975). Accordingly, as I indicated in my dissent in Davis, I do not favor the imposition by this Court of an unnecessary burden upon the trial judiciary. I recognize, however, that under Fed.R.Crim.P. 44(c), which became operative in December 1980, the federal civilian trial judge is now obligated to inquire into possible conflicts of interest when one counsel represents two or more defendants. Mindful of this Court’s disposition to look to the practice in the federal civilian courts to fill a procedural interstice in military practice, I am not opposed to a court rule to assure that accused represented by one lawyer are aware of the possibility that they may have conflicting interests that might reduce the effectiveness of counsel’s representation as to one or another of them. I disagree, however, with the apparent scope of the rule and the remedy prescribed by the majority for the failure of a trial judge to conduct the prescribed inquiry.
In my opinion, the precepts of the majority have two material defects: (1) Although the caution in footnote 13 of the majority opinion implies a limitation, the text of the majority’s rule is unnecessarily broader than Fed.R.Crim.P. 44(c); and (2) the remedy the majority prescribe is not suited to the purpose of the inquiry, and, in practical effect, disregards the fact that single counsel representation of multiple accused is not forbidden by the Constitution or the Uniform Code of Military Justice.
As to the stated scope of their rule, the majority direct that inquiry into possible conflicting interests must be made “in any case of multiple representation.” 11 M.J. at 23. Unless one regards their footnote 13 as directory, no allowance is made for a case in which no circumstance puts the trial judge on notice that multiple representation exists.
Rule 44(c) of the federal civilian rules requires the judge to inquire as to a possible conflict of interests only when “two or more defendants [are] jointly charged” or “joined for trial.” Either of those circumstances is sufficient to alert the judge to the fact of dual representation. An oddity of military practice, however, provides for “multiple representation” by a detailed defense counsel that is not likely to entail representation of conflicting interests, but which would have to be the subject of inquiry under the majority’s rule. The oddity of practice, which has no counterpart in civilian courts, is that a defense counsel is *25detailed to a court-martial; as a result, as soon as charges are referred to that court-martial for trial, detailed defense counsel becomes responsible for an accused, even though the accused may later select other counsel for trial. See para. 46cf, Manual for Courts-Martial, United States, 1969 (Revised edition). Should each of several persons involved in the commission of a single crime be separately charged as a principal, as the Code 1 and Manual 2 allow, and should the charge against each be separately referred to the same court-martial, but without direction that the accused be tried in common,3 the trial judge could not know from the charge sheet, or the order of reference of the charges to trial, or the appearance at trial of detailed defense counsel with a single accused, that counsel may, for a time, have acted in a limited way for a co-accused. Confronted with a similar situation, a civilian trial judge would not, under Rule 44(c), be required to conduct an inquiry for possible conflict of interests. I see no reason to impose a greater burden of inquiry upon the military judge when he has no reason to believe persons other than the accused before him are implicated in the commission of the offense and may be represented by the same lawyer. I would, therefore, explicitly limit the occasions for inquiry to the instances specified in Rule 44(c), and leave it to the accused and counsel to raise the matter in other instances.
Turning to the remedy, the United States Supreme Court has recently cautioned “that remedies should be tailored to the injury suffered ... and should not unnecessarily infringe on competing interests.” United States v. Morrison, 449 U.S. 361, 101 S.Ct. 665, 668, 66 L.Ed.2d 564 (1981) (emphasis added). What injury does an accused suffer when no inquiry is made at the beginning of trial into the mere possibility that his lawyer may improperly represent him because he also represents a co-accused whose needs may possibly conflict with those of the accused? In Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980), the Supreme Court held that a single lawyer’s representation of two or more accused does not, alone, “imperil ... [their] right to a fair trial” by denying them effective assistance of counsel. Consequently, unless the trial judge is otherwise informed, if neither counsel nor an accused makes timely assertion that the interests of the several accused conflict, the trial judge can properly “assume either that multiple representation entails no conflict or that the lawyer and his clients knowingly accept such risk of conflict as may exist.” Id. at 347, 100 S.Ct. at 1717 (footnote omitted). That assumption may weigh against an accused should he later assert that a conflict of interests existed and that he did not voluntarily accept its risks. Id.; see Salomon v. LaVallee, 575 F.2d 1051, 1055 (2d Cir. 1978). It seems to me, therefore, that the purpose of the inquiry is to substitute, as far as possible, fact for assumption. Thus, the majority say, as some federal courts 4 have said in regard to their respective rules which antedated Rule 44(c), that the inquiry will “disarm future contentions that by reason of multiple representation . .. [the] accused has been deprived of the effective assistance of counsel.” 11 M.J. at 23. In my opinion, the failure to inquire should have no greater effect than to free the accused from the burden of the inferences that flow from the absence of timely assertion of a conflict of interests.
In Cuyler, the Supreme Court proscribed a search for prejudice in regard to an accused when the record discloses that his counsel actually represented conflicting interests because “unconstitutional multiple representation is never harmless error.” Id. 446 U.S. at 349, 100 S.Ct. at 1719. Consequently, the crucial question in a case of this kind is whether a conflict of interests actually existed.
*26The majority posit that the failure of the trial judge to inquire into the matter gives rise to a presumption that a conflict of interests exists. That presumption, in my opinion, is so impossible of rebuttal in most cases as to be unjustified. If the majority intend their rule to mean that a reviewing authority must presume that an actual conflict exists and that this conflict requires reversal of a conviction unless the Government can rebut the presumption, I disagree with it. First, at its worst, the fact of dual representation supports no more than an inference of possible conflict. I cannot accept elevation of this bare possibility to the high state of actuality because the trial judge overlooked the inquiry, and was not reminded of it by either trial or defense counsel. Cf. United States v. Banks, 7 M.J. 92 (C.M.A.1979). The judge’s lapse imposes no hardship upon the accused; and I do not believe the accused should be granted an inordinate benefit as a result of it. Second, the presumption, although ostensibly rebut-table, virtually guarantees reversal. The Court of Appeals in the Cuyler case 5 observed, correctly I believe, that “conflicts of interest ordinarily do not appear in the record” of the accused before the appellate court. Substantively, therefore, to rebut the presumption, the Government would have to prove a negative from other sources that may not be known or are not readily available to it, as, for example, in the case of multiple accused from different armed forces who are represented by a single civilian lawyer. Cf. United States v. Cuffee, 10 M.J. 381 (C.M.A.1981). I am impelled to conclude that irrespective of whether the trial judge discharges his obligation to inquire, the accused or his counsel must still bear the burden of identifying a conflict of interests to be entitled to relief.
The remedy I would adopt for failure of the trial judge to conduct, at the beginning of trial, the inquiry as to possible conflict of interests is as follows:
(a) If later during the trial, the judge is made aware of a possible conflict of interests, he may not rely upon the assumption that the previous silence of the accused and counsel was indicative of consent to undertake the risks; instead, he must respond to the evidence of the conflict as though there had been “timely objection.” 446 U.S. at 345, 100 S.Ct. at 1716.
(b) In those frequent instances when the conflict of interests does not appear in the record of trial, and the matter is, therefore, raised for the first time on review, the reviewing authority cannot invoke an assumption of waiver. Should the fact of conflict be disputed, the reviewing authority should direct a limited rehearing before a trial judge to resolve the conflict.6 That is the remedy the United States Supreme Court accorded a probationer in regard to a revocation hearing when it perceived in the record “the possibility of a conflict of interest” sufficient to prompt the trial judge to inquire further into the matter. Wood v. Georgia, 450 U.S. 261, 272, 101 S.Ct. 1097, 1102, 67 L.Ed.2d 220 (1981). The Court said:
The judgment below is vacated and the ease remanded with instructions that it be returned to the State Court for Fulton County. That court should hold a hearing to determine whether the conflict of interest that this record strongly suggests actually existed at the time of the probation revocation or earlier. If the court finds that an actual conflict of interest existed at that time, and that there was no valid waiver of the right to independent counsel, it must hold a new revocation hearing that is untainted by a legal representative serving conflicting interests.
Id. at 273, 101 S.Ct. at 1104 (footnote omitted).
In my opinion, these forms of relief assure an accused full review, whether at trial or on appeal, of an assertion by him that he received ineffective assistance of counsel because of a conflict of interests, without *27regard to whether that assertion was, or was not, timely. At the same time, the Government is not burdened with overcoming a presumption of disadvantage to the accused that has no empirical support. See United States v. Banks, supra.
I agree with the majority that no conflict of interests appears in this case. I also agree with Part II of the majority opinion, and I join in affirming the decision of the United States Air Force Court of Military Review.
. Article 77, Uniform Code of Military Justice, 10 U.S.C. § 877.
. Para. 26d, Manual for Courts-Martial, United States, 1969 (Revised edition).
. Para. 33l, Manual, supra.
. Salomon v. LaVallee, 575 F.2d 1051, 1055 (2d Cir. 1978); United States v. Lawriw, 568 F.2d 98, 100 (8th Cir. 1977), cert. denied, 435 U.S. 969, 98 S.Ct. 1607, 56 L.Ed.2d 60 (1978).
. United States ex rel. Sullivan v. Cuyler, 593 F.2d 512, 520 (3d Cir. 1979).
. See United States v. Vietor, 10 M.J. 69, 72 (C.M.A.1980); United States v. Killebrew, 9 M.J. 154, 162 (C.M.A.1980).