(dissenting),
Perhaps the clearest way of expressing the reason for my dissent is to say that the constitutional right to the effective assistance of counsel does not in my view prescribe merely a procedural requirement but, contrary to the majority opinion, prescribes also a standard of skill. None of the decisions of the Supreme Court contains the limitation the *795majority imposes. In the leading case of Powell v. State of Alabama, 287 U.S. 45, 58, 53 S.Ct. 55, 77 L.Ed. 158, it is said that the right of counsel is required in a “substantial sense.” And see Jones v. Huff, 80 U.S.App.D.C. 254, 152 F.2d 14. Due process of law includes both procedural and substantive due process, So too, as it seems to me, does the right to the effective assistance of counsel extend through form to substance. “The right to counsel is not formal but substantial.” Johnson v. United States, 71 App.D.C. 400, 401, 110 F.2d 562, 563. To dilute the right so as to eliminate consideration of competence in a particular case would at times leave only the shadow of one of our fundamental aids in the administration of justice.
True it is that to test by a standard of skill whether or not the right has been accorded raises problems; but should only a formal test prevail we would be faced with the even more serious problem of disposing of life and liberty in a manner inconsistent with the full content of a safeguard that has constitutional status.
We need not, I think, shape a rule on this subject through fear that inquiry in appropriate cases into counsel’s con-duet of a defense will significantly deter the acceptance by attorneys of court appointment to defend indigents:
Undivided allegiance and faithful, devoted service to a client are prized traditions of the American lawyer. It is this kind of service for which the Sixth Amendment makes provision. And nowhere is this service deemed more honorable than in the case of appointment to represent an accused too poor to hire a lawyer * * *
Mr. Justice Black, for himself and Mr. Justice Douglas, Mr. Justice Murphy and Mr. Justice Rutledge, in Von Moltke v. Gillies, 332 U.S. 708, 725-726, 68 S.Ct. 316, 92 L.Ed. 309.
The traditional amenities appropriate to the relationship between courts and members of the bar are not a substitute for inquiry in a particular case into the question whether a defendant has received assistance of counsel in terms of requisite skill. The bar is composed of professionals who have special responsibilities by reason of their calling. While the courts have the duty to defend them against unjust appraisal of their skill and judgment, I think the courts cannot bar inquiry into those matters when the substantial constitutional issue is raised.
Approaching the case in this manner the question is whether appellant is en-titied to a hearing in the District Court under section 2255. That section provides that he is entitled to such a hear-jng,
“unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief * *
Do his section 2255 motion and the files and records conclusively show that appellant had the effective assistance of counsel? I assume that a bare allegation that he did not would not suffice to obtain a hearing. But appellant’s allegation is not bare; it is clothed as it were with certain details. He alleges that counsel failed to move for acquittal, to cross-examine, or to object to hearsay evidence.
Let us consider this last allegation. Pinkard v. United States, 99 U.S. App.D.C. 394, 240 F.2d 632, a case involvin^ a simi,lar ciame> we heJd that ?he admission without objection of damaging he£™ evidence was reversible error, The attack °n tke conviction there however, was by direct appeal, while the Present attack is collateral and requires greater length to succeed. It is not enough on collateral attack to show error; there must be shown a lack of reasonable skill in the conduct of the defense — a failure to meet in the partieular case a fair standard of the professional competence incident to the professional right to defend a person on trial for crime,
If it should be shown in this case that the conviction rests in substantial de*796gree upon untrustworthy hearsay evidence not objected to, the courts might conclude in the light of this and all other circumstances of the trial, together with the omission of counsel to note an appeal, that there was not accorded to appellant his constitutional right to the assistance of counsel in his defense. On the other hand it might appear that his claim to that effect is wholly unjustified, All we can now say is what Circuit Judge Kalodner said for the Third Circuit in United States v. Stevens, 224 F.2d 866, 869, that the motion, files and records “far from showing conclusively that [appellant] is entitled to no relief, are not in any way informative on the issues raised * * We simply do not know.
A course open to the District Court would be to order a transcript of the trial. It might clearly appear from the transcript that appellant’s allegations have no merit. If the matter should be left in doubt, however, the hearing and procedures envisaged by section 2255 should be accorded, and a decision made on the basis of the facts developed. Another course would be for the District Court to hold a section 2255 hearing without ordering a transcript. This might furnish a basis for a definitive decision. If not, a transcript could be ordered and findings and conclusions made on the basis of both hearing and transcript.
Embarrassment caused counsel by an unjust charge of ineffective assistance is a price that unfortunately must be paid at times for careful judicial administration. And where the charge is just the remedy is not to save counsel from embarrassment but to save his client from unjust conviction or sentence.
Whether or not the strict standard set forth in Diggs v. Welch, 80 U.S.App.D.C. 5, 148 F.2d 667, 669 for determining the absence of effective representation should be reconsidered by this court, as appellant’s counsel urges, to the end that no longer should an accused be required to show that his trial was “a farce and a mockery of justice,” the opinion in Diggs v. Welch seems to me to stand for the proposition that the quality and not merely the fact of representation must be considered even on collateral attack by habeas corpus, though the consideration there given was under the Fifth Amendment rather than the Sixth. This was before the enactment of section 2255, under which a less rigid showing is required now to obtain a hearing. I should think that on a motion under section 2255 justice need not be mocked in order to be dispensed, at least to the extent of granting a hearing.