dissenting:
I join Chief Judge Seitz’ persuasive dissent. I write separately because it appears to me that despite protestations to the contrary, see Plurality Op. at p. 136 and note 5, Concurring Op. at p. 138, there can be no doubt that both the plurality opinion and Judge Rosenn’s opinion promulgate a per se rule that an indicted attorney cannot effectively represent his client. Not only is such a rule inappropriate in my view, but it has potentially grave consequences which apparently were not contemplated by the plurality or, if contemplated, were ignored.
The facts of this case belie any claim that the plurality holding is, in any sense, a limited one. Verdiramo had been indicted a total of three times in the years 1974 and 1975. In early January, 1976, Verdiramo was engaged to represent DeFaleo in his appeal to this court.1 On May 3, 1976, Verdiramo filed an appellate brief on behalf of DeFaleo. At that time, Verdiramo’s work, on DeFalco’s appeal was complete. Absent a court order for oral argument, and there was no such order, there was nothing further for Verdiramo to do. See note 5 infra. One month after filing DeFalco’s brief, Verdiramo was again indicted at No. 76-201-4. Six months after the completion and filing of DeFalco’s brief, Verdiramo, for the first time, changed his “not guilty” plea on indictment 76-201-4, to “guilty.”2 One week later, on October 6, 1976, DeFal-co’s case was submitted on only the briefs to this court; it was affirmed by judgment order two days later.
In his opinion denying § 2255 relief to DeFaleo, Judge Lacey specifically found that Verdiramo’s guilty plea was “neither consummated nor contemplated until after DeFalco’s case had been submitted to the Court of Appeals (which decided no oral argument was necessary).” Govt.App. at HA n. II.3 Thus it cannot be disputed that all of Verdiramo’s appellate work pertaining to DeFalco’s appeal had been completed no less than six months prior to Verdira-*145mo’s suspension from the practice of law by the district court,4 and as Judge Lacey found, Verdiramo had not even contemplated pleading guilty until sometime after the DeFalco briefs were filed.
In light of these uncontested facts, it is crystal clear that the plurality’s and Judge Rosenn’s holdings are predicated on the fact of Verdiramo’s indictment alone.5 If a potential conflict can be presumed in this case, *146it must be presumed in every case where a defendant is represented by an attorney who has been indicted. Moreover, the logic of the plurality opinion would seem to compel the conclusion that an attorney whose partner or associate had been indicted, cannot effectively represent a criminal defendant either. For an attorney in that situation would certainly owe “fealty that conflicts, or . appears to conflict, with the paramount ethical loyalty he owes his client.” Plurality Op. at 136. I cannot accept this logic nor the flawed conclusion which flows from it.
Chief Judge Seitz aptly demonstrates that there is no reason to presume either conflict or prejudice in this case. I would also point to the consequence of the per se rule which flows from the plurality’s presumptions. By granting collateral relief to those persons who cannot demonstrate conflict or prejudice, cf. United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979), -but who assert that their attorneys were under indictment, or that their attorneys had partners who were under indictment at the time of the proceeding in question, the plurality has created a situation which will result in untold additional litigation. It is unfortunate, but nevertheless the fact, the many defense attorneys, including some of the most prominent at the bar, have at one time or another come under indictment. By its actual holding in this case, the plurality would grant relief to all former clients of those attorneys or of their firms, without requiring any showing of possible conflict and prejudice. The plurality thus creates an invitation to collateral litigation which will not likely be turned down.
In sum, the plurality has created a per se rule which is illogical, uncalled for and unsound. By presuming both conflict and prejudice without the need for demonstrating either, a plurality of this court has proceeded far beyond the limits which we have previously set in joint representation cases. See, e. g. United States ex rel. Hart v. Davenport, 478 F.2d 203 (3d Cir. 1973). It has done so, moreover, in a case with an exceedingly thin record,6 and in the face of undisputed facts which do not support its discussion or the purported grounds of its decision. Accordingly, I must respectfully dissent.
. DeFalco’s affidavit, which is quoted in the plurality opinion, indicates that he was aware of Verdiramo’s indictment before Verdiramo had actually begun work on the appeal. DeFal-eo stated in his affidavit that he was unaware, when he retained Verdiramo, that Verdiramo had committed any acts which could lead to his disqualification. But this does not necessarily mean that DeFaleo was unaware of Verdira-mo’s indictment at that time.
Furthermore, DeFalco’s affidavit states that Verdiramo, discounting his indictment, told De-Faleo that “he would prosecute the appeal vigorously . . . .” This language indicates that Verdiramo had not yet begun working on the appeal.
. Apparently the other indictments against Verdiramo, to the extent that they had not been dismissed earlier, were merged in the plea bargain.
. This finding undercuts the factual basis for Judge Rosenn’s concurrence — that there was an actual conflict of interest because Verdira-mo was plea bargaining on his own behalf while simultaneously, representing DeFaleo on a direct appeal from the same district.
. Verdiramo was suspended from practicing before the District Court on September 28, 1976, by the same district court judge who sentenced him on that date. Inasmuch as Ver-diramo had never sought admission to the bar of this court, he could not have been suspended from this court, but only denied admission if he were to seek it. However, because no oral argument had been ordered, and because this Circuit requires only those who argue orally before it to be admitted, there would be no occasion for this issue to arise. Indeed, I have personally urged that all attorneys whose names appear upon briefs or other papers submitted to this court, be required to be members of our bar, particularly since we do not require oral argument in a substantial number of the appeals filed in this Circuit. However, I have been unsuccessful in having this position adopted.
While I draw no conclusions from the procedure utilized By the district court in suspending Verdiramo, I do observe that there is no provision for such suspension in the Rules of the United States District Court for the District of New Jersey. Indeed, Rule 7 of those Rules, entitled “Discipline of Attorneys,” provides that the Chief Judge, who was not the sentencing judge in Verdiramo’s case, shall have charge of all disciplinary matters and that an order to show cause be issued with a hearing 30 days after service on the respondent attorney. Thus, it is evident that the sentencing judge did not comply with Rule 7. Therefore, given the fact that Verdiramo did not plead guilty until September 28, 1976, under its own Rules, the district court could not have disqualified Verdiramo until well after October 8, 1976, the date on which this court disposed of DeFalco’s appeal.
Even assuming a waiver of the local rules, or an otherwise valid suspension no prejudice could have been visited upon DeFalco by Verdi-ramo’s suspension. As noted in text, Verdira-mo had taken all actions on behalf of his client long before the date of the suspension. Thus, this is not a situation where an attorney while under a suspension or disbarment order is required to take some action on behalf of his client. In such a case, I would agree that the client would be prejudiced without more. But if the position urged by Judge Adams were carried to its logical conclusion, we would be required to vacate every .criminal case which was affirmed, after submission on the briefs, where a defense attorney had been suspended, by any court, after all appellate representation had been completed. This would be so even though those attorneys would never have had to become members of the bar of this court. I fail to see how constitutional prejudice could inhere in such cases.
. Judge Adams’s dissent has taken a different approach than that taken by the plurality. He would hold that Verdiramo’s suspension is the primary issue on this appeal, because immediately upon an attorney’s suspension by the district court, he would not permit the attorney to represent his client in this court, as such representation would not be by qualified counsel. (Opinion of Judge Adams, dissenting, supra, pp. 142, 143). However, the record reveals that Verdiramo’s representation was completed long before his suspension and therefore his representation of DeFalco cannot for that reason be deemed unqualified.
As noted, DeFalco’s appellate brief had been filed with this court’s clerk on May 3, 1976. The Government’s answering brief was filed June 25, 1976. Fed.R.App.P. 31 (with an exception not relevant here), permits the appellant to file a reply brief within 14 days thereafter, so in this case the outside date would be July 9, 1976. In any event, this Circuit’s Internal Operating Procedures provide that all briefs are to be furnished to the merits panel four full weeks prior to the panel’s sitting (I.O.P.I.A.), which here would have been September 7, 1976. Orders for oral argument are determined no later than 10 days prior to a panel sitting (I.O.P.II.A.). In this case the last date for such order would have been September 24, 1976. Moreover, although oral argument may be requested by a party, such request must be made within seven days after the filing of the appel-lee’s brief. On this record July 2, 1976 would have been the outside date. It should be noted, moreover, a motion for stay, a petition for rehearing en banc and a petition for a writ of certiorari were all filed on behalf of DeFalco after this court’s judgment order of October 8, 1976. These actions were taken by counsel other than Verdiramo.
It is therefore apparent that no actions taken by Verdiramo on DeFalco’s behalf were taken after Verdiramo’s suspension on September 28, 1976. Furthermore, the time for any theoretical further actions which could have been taken in the representation of DeFalco had expired prior in time to Verdiramo’s suspension. Thus on the record of this case, the fact of Verdira-mo’s suspension is irrelevant to any issue implicating the constitutional right to effective assistance of counsel and is therefore irrelevant to any issue on this appeal.
. Although 1 agree with Chief Judge Seitz that we should remand for an evidentiary hearing as to conflict and prejudice, I cannot help but note the frailness and transparency of DeFalco’s claims which were raised before Judge Lacey and which have been presented before us. I also observe that had DeFalco, in his present endeavors, complied with our circuit’s precedent, the recent proceedings might well have been avoided. See Rivera v. United States, 477 F.2d 927 (3d Cir. 1973).