dissenting.
In these collateral proceedings, those constituting the majority in effect vote to reverse the judgment entered on the direct appeal affirming DeFalco’s judgment of conviction. They do so on the basis of their conclusion that the totality of the circumstances surrounding the direct appeal created a possible conflict of interest that denied DeFalco competent counsel on appeal as a matter of law.
I dissent because I do not believe the circumstances call for the application of a conflict of interest rule that precludes inquiry into the competency of the performance actually rendered on the appeal. Every conflict of interest case has two aspects: the existence of a conflict of interest, and the prejudice resulting therefrom to the defendant. In joint representation cases, once there is a showing of a remote possibility of conflict of interest, prejudice is presumed. An examination of both of these aspects reveals the inappropriateness of applying this rule in this context.
First, the plurality relies on psychological factors for inferring the existence of a conflict of interest. They attempt to limit the legal precept adopted to the circumstances of this case. The reality is that such an approach could have profound implications because of the decisive weight given speculative psychological • factors. Indeed, such speculativeness is illustrated by this case. For example, Verdiramo filed his brief for the defendant in this court on May 3, 1976. Although the record does not reveal the precise date, his plea bargaining in his own case apparently did not begin until later, some time in the summer of 1976. Thus even if psychological speculation were a proper basis for application of conflict of interest rules, one cannot be sure those psychological pressures were present here.
Second, the rationale for presuming prejudice in the joint representation cases does not apply to the present context. The reasoning in the joint representation cases, relied on by those in the majority, is that it is often difficult or impossible to determine whether the defendant has actually been prejudiced by such representation. Holloway v. Arkansas, 435 U.S. 475, 490-91, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978); U. S. ex. rel. Hart v. Davenport, 478 F.2d 203, 210 (3d Cir. 1970). The reason for presuming prejudice in joint representation cases is largely, if not entirely, absent in the present context. If adequate representation at the trial is postulated,1 it is not difficult for other counsel to attempt to demonstrate in collateral proceedings whether the defendant’s appellate representation measured up to acceptable standards. This can be done by reviewing the trial transcript against the appellate brief (here there was no oral argument), buttressed by testimony, if necessary, to determine if all issues of substance were properly raised on appeal or were omitted for sufficient reason.2 Thus the difficulty of ascertaining prejudice found in the joint representation cases simply is not present.
In short, the fact situation here neither supports an inevitable finding that a conflict of interest exists nor requires that *141prejudice be presumed. I am satisfied that the possible impact of the speculative concerns expressed by the plurality are fully aired and assessed by applying accepted competency standards.
The concurring opinion purports to reject psychological factors as a basis for its conclusion. It relies on what it says may be an actual conflict arising from the position of plea bargaining with the United States Attorney on the attorney’s own behalf and about the same time representing a client on a direct criminal appeal from the same district. Passing over the untoward premises on which the argument is constructed, the short answer is that consideration of the appellate record and pertinent testimony is sufficient to permit a reliable determination by the district court as to the level of appellate competency provided.
Because the district court did not address the competency of counsel issue on the merits, I would remand to the district court for an evidentiary hearing and determination as to whether Verdiramo’s appellate representation fell below the standard required by Moore v. United States, 432 F.2d 730 (3d Cir. 1970) (in banc), and, if it did, whether DeFalco was prejudiced. By prejudice I mean that a particular issue of some substance on which the defendant has an arguable chance of succeeding was not advanced and was not apparent to the court on direct appeal.3
. Verdiramo was not defendant’s counsel at trial. In his motion for § 2255 relief, defendant argued that Verdiramo failed to raise on direct appeal the denial of defendant’s motion (made right before trial) to substitute trial counsel for inadequate factual investigation. He did not, however, claim ineffective assistance of trial counsel as a ground for § 2255 relief.
. I use the word “issues” here because the question is not whether all possible theories as to each issue were advanced on direct appeal, but rather whether the issues themselves were apparent to the reviewing court.
. I do not reach the remand ordered by the majority to obtain a waiver determination, assuming the propriety of an informal waiver in the circumstances. Nevertheless, my position is not meant to imply there are not circumstances in which an indicted attorney should bring that fact to the attention of his client.