(concurring in the result):
The majority orders a hearing under United States v. DuBay, 17 USCMA 147, 37 CMR 411 (1967). One has to ask who has the information to be obtained at the DuBay hearing, and the answer is defense counsel, appellant, and Sergeant Lawrence. One must further ask why couldn’t that information be obtained in the first instance at the first appellate level, rather than now at a DuBay hearing. Even in the most sensitive defense of mental responsibility, the burden is placed upon the defense because generally that is the party with the evidence. Art. 50a(b), Uniform Code of Military Justice, 10 USC § 850a(b).
In effect, rather than requiring the defense to demonstrate an actual conflict at the Court of Military Review, we have allowed the issue to pass through that court to this Court, back to a DuBay hearing to determine what the defense already knew, then to the Court of Military Review again and, finally, back to this Court. Four of those five levels of review are not necessary.
Since this Court exercised its supervisory jurisdiction in United States v. Breese, 11 MJ 17, 22 (CMA 1981), relying on Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), the Supreme Court and the federal courts of appeals have clarified the rules regarding counsel’s multiple representation of clients and issues of conflict of interest arising therefrom.
In Cuyler, the Court held that a prisoner may seek habeas corpus relief if his counsel was ineffective when representing a conflicting interest and that “a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.” It reiterated the principle that multiple representation does give rise to a possibility of improper conflict of interest and that “a defendant who objects to multiple representation must have the opportunity to show that potential conflicts impermissibly imperil his right to a fair trial.” Id. at 348, 100 S.Ct. at 1718. The Court *460created a limited presumption of prejudice only if the defendant demonstrates that “counsel actively represented conflicting interests” and repeated that “a defendant must establish that an actual conflict of interest adversely affected his lawyer’s performance.” Id. at 349-50, 100 S.Ct. at 1719. This language suggests that a defendant must show that there was (1) an actual conflict as well as (2) an adverse effect. Since our decision in Breese, the Supreme Court has indicated that there is indeed a two-prong test that must be satisfied.
The two-prong test was established in Strickland, v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), when the Court rejected a per se rule of presumed prejudice for all conflicts of interest, holding instead: “Prejudice is presumed only if the defendant demonstrates that counsel ‘actively represented conflicting interests’ and that ‘an actual conflict of interest adversely affected his lawyer’s performance.' ” 466 U.S. at 692, 104 S.Ct. at 2067, citing Cuyler v. Sullivan, 446 U.S. at 348, 350, 100 S.Ct. at 1718, 1719. Also, in Burger v. Kemp, 483 U.S. 776, 783, 107 S.Ct. 3114, 3120, 97 L.Ed.2d 638 (1987), the Supreme Court held:
[W]e presume prejudice “only if the defendant demonstrates that counsel ‘actively represented conflicting interests’ and that ‘an actual conflict of interest adversely affected his lawyer’s performance.’ ”
In line with Cuyler, Strickland, and Burger, the United States Courts of Appeals have applied a two-prong test. In Mannhalt v. Reed, 847 F.2d 576, 579 (9th Cir.), cert. denied, 488 U.S. 908, 109 S.Ct. 260, 102 L.Ed.2d 249 (1988), a showing was required “1) that counsel actively represented conflicting interests, and 2) that an actual conflict of interest adversely affected [counsel’s] performance.” See Morris v. California, 966 F.2d 448, 455 (9th Cir. 1991).
Likewise, in Young v. Herring, 938 F.2d 543, 561 (5th Cir.1991), cert. denied, — U.S.-, 112 S.Ct. 1485, 117 L.Ed.2d 627 (1992), the Fifth Circuit determined: *
In order to find a Sixth Amendment violation based on a conflict of interest, the reviewing court must find (1) that counsel actually represented conflicting interests, and (2) that an actual conflict of interest adversely affected the attorney’s performance.
In this case, there was no actual conflict of interest affecting counsel’s performance. Counsel candidly admitted on the record that he did not intend to call Sergeant Lawrence as a witness because appellant was better off if Lawrence was never called. Where counsel’s actions actively benefit his client, obviously counsel’s performance has not been adversely affected by the conflict of interest.
Since the requirement to prove both an actual conflict of interest and an adverse impact on counsel’s performance is a change from our prior practice, I concur with the majority’s view that a remand is appropriate in this case. However, I would require counsel to comply with the new two-prong test prospectively.
More than 60 cases in all the circuits follow a similar rationale. See, e.g., Mathis v. Hood, 937 F.2d 790, 795 (2d Cir.1991); United States v. Contractor, 926 F.2d 128, 134 (2d Cir.), cert. denied, — U.S.-, 112 S.Ct. 123, 116 L.Ed.2d 91 (1991).