concurring,
I agree that the judgment of the district court should be reversed. However, I write separately because of my disagreement with certain portions of the plurality opinion.
First, the plurality states that “[t]o avoid the appearance as well as the fact of impropriety in the adversary system, doubtful cases are resolved in favor of the defendant.” At 135 (emphasis added). Later in the opinion this position is restated: “It is essential that the advocate owe no fealty that conflicts, or even appears to conflict, with the paramount ethical loyalty he owes his client.” Id. at 136 (emphasis added). I do not believe, however, that the mere appearance of a conflict of interest on the part of appellate counsel, of itself, violates the sixth amendment’s guarantee of effective assistance of counsel.
In United States ex rel. Hart v. Davenport, 478 F.2d 203 (3d Cir. 1973), we considered a claim of ineffective assistance of counsel because of defense counsel’s joint representation of co-defendants. There we ordered a new trial because of “a possible conflict of interest or prejudice, however remote.” We arrived at that decision, however, only after having examined the record and finding indications of such a possible prejudicial conflict. Thus, we noted “[t]he absence of a meaningful closing argument on Hart’s behalf.” Id. at 208. Further, we observed that “[t]he record of the State proceedings . . . establishes that there were among the defendants in the trial conflicting interests.” Id. at 209.
In United States ex rel. Horta v. De-Young, 523 F.2d 807, 808 (3d Cir. 1975) (per curiam), we again found “a ‘possible conflict of interest or prejudice.’ ” As in Hart that conclusion was based on an examination of the record. Thus, we noted that “[a] counsel looking only to petitioner’s interest should have asked for an instruction . limiting the admissibility of the surveillance evidence to the male defendants.” Id. at 809. Further, we commented on “[t]he inadequate cross examination of key government witnesses” and the fact that “[djefense counsel made no effort to capitalize on . [the] contradiction in the state’s case.” Id. at 810.
Similarly, in United States ex rel. Sullivan v. Cuyler, 593 F.2d 512 (3d Cir. 1979), cert. granted, 444 U.S. 823, 100 S.Ct. 44, 62 L.Ed.2d 30 (1979), we based our finding of a “possibility of prejudice or conflict of interest” upon “[o]ur examination of the record.” Id. at 521. We noted that “[t]he critical decision counsel made was to rest at the close of the Commonwealth’s case without presenting petitioner’s testimony or other evidence on his behalf.” Id. Thus, “[a] finding of dual representation does not, without more, require reversal.” Id. at 519.
In the case before us, we are not presented with the mere appearance of a prejudicial conflict but with indications that such a conflict actually existed. As Judge Aldisert notes, DeFalco’s appeal emanated from the same court in which his counsel was indicted. Three of Attorney Verdiramo’s indictments were processed prior to the consummation of his plea bargain by the United States Attorney’s Office that was also prosecuting DeFalco and before the same judge who had presided at DeFalco’s trial. Also critical is counsel’s entry into plea negotiations with the same United States Attorney’s Office with which he was in contention on DeFalco’s then pending appeal in this court. Thus, counsel was seeking to negotiate the best possible bargain in this personal behalf from the prosecution while at the same time opposing them in a pending criminal appeal.1 The risks that an *139attorney so involved might sacrifice the interests of his client in an effort to advance his own are too glaring for a court to tolerate, absent the client’s knowing and intelligent waiver. Thus, the situation borders on the edge of actual conflict of interest. If it does not precisely reach that level, it is one which makes it impossible for anyone to know, including the defendant or the reviewing court, whether the attorney’s tactical decisions, counseling of his client, or his arguments to the court were adversely affected in the expectation that counsel’s personal plea bargaining might be enhanced. Thus, the possibility — even the probability — of prejudicial conflict is obvious.
Second, I disagree with the plurality’s assertion that “[i]f there is any constraint on counsel’s complete and exuberant presentation, our system will fail.” Plurality op. at 136. It is of course true that there are some constraints which are inherently suspect. Dual representation of a co-defendant at trial is one such constraint. See United States ex rel. Sullivan v. Cuyler, supra; United States ex rel. Hart v. Davenport, supra. Indictment of appellate counsel, unbeknownst to the defendant, may well be another. Nevertheless, there are some constraints that are clearly permissible and even desirable, e. g., those set forth in the Federal Rules of Civil, Criminal, and Appellate Procedure and the Federal Rules of Evidence.2 Thus, we have indicated that “statements by counsel of their personal conviction of the merits of their client’s cause should always be avoided [at trial].” United States v. Benson, 487 F.2d 978, 981 (3d Cir. 1973).3 Where such statements can be fairly construed to be based on facts not in evidence we have held this to constitute reversible error. United States v. Schartner, 426 F.2d 470 (3d Cir. 1970). Contrary to the plurality’s assertion, the relevant inquiry is not whether there is “any constraint on counsel’s complete and exuberant presentation” but whether there is an impermissible constraint that precludes counsel’s full and effective representation of his client within the bounds set by applicable rules and appropriate ethical considerations.
Finally, I disagree with the plurality’s conclusion that “inherent emotional and psychological barriers created an impermissible potential of preventing appellate counsel from competing vigorously with the government.” Plurality op. at 136. I believe the standard this suggests is speculative, imprecise, and incapable of application. Its use would hinder rather than help a reviewing court in adjudicating sixth amendment claims. Furthermore, there is nothing in the record that indicates the presence of such emotional and psychological barriers. The idea that emotional barriers can be “inherent” seems to be self-contradictory. If a response to the stimuli of a given situation is emotional, then I fail to perceive how it can be “inherent.”
*140On the other hand, I agree that under the facts of this case there may be an actual conflict of interest or a situation so fraught with unreasonable risks of a'conflict of interest that it should not be countenanced in the absence of a knowing and intelligent waiver by the defendant. Thus, I join in voting to reverse the judgment of the district court and in remanding for further proceedings not inconsistent with this opinion.
. It is true, as Judge Garth indicates, that De-Falco’s brief was filed prior to Verdiramo’s indictment. Garth, J., dissenting op. at 144. One cannot say, however, that Verdiramo’s representation of DeFalco was indisputably complete at that point. There are other actions which Verdiramo could have taken in his representation of DeFalco but did not. As Judges Garth and Adams note, Verdiramo could have filed a reply brief, supplemental brief, if appro*139priate, or requested oral argument. See Garth, J., dissenting op. at 145, n. 5; Adams, J., dissenting op. at 143 n. 15. Under applicable rules Verdiramo could only have taken those actions after the filing of the Government’s brief. This occurred on June 25, 1976, after the indictment on June 2, 1976. Thus, the actions that he could have taken in behalf of DeFalco prior to his plea of guilty on September 28, 1976, necessarily would have occurred during the period when Verdiramo was presumably considering or engaging in plea bargaining. Thus, my position and that of the plurality are not “predicated on the fact of Verdiramo’s indictment alone,” as Judge Garth asserts. Garth, J., dissenting op. at 145. Instead, I believe that a combination of factors combined to create a virtual conflict of .interest which rendered Verdiramo’s representation of DeFal-co constitutionally insufficient, unless waived.
. There are some constraints that are even more basic. For instance, as the Court of Appeals for the District of Columbia has observed, “although a lawyer has a duty to defend vigorously the rights of his clients, there is a corollary obligation that he conduct himself with decorum.” Kinoy v. District of Columbia, 130 U.S.App.D.C. 290, 292-293, 400 F.2d 761, 763-64 (D.C.Cir. 1968) (footnote & citation omitted).
. Section 7.8(b), ABA Standards, The Defense Function (App.Draft 1971) states: “It is unprofessional conduct for a lawyer to express his personal belief or opinion in his client’s innocence or his personal belief or opinion in the truth or falsity of any testimony or evidence, or to attribute the crime to another person unless such an inference is warranted by the evidence.”