(concurring specially).
In full accord with the majority in vacating the judgment and remanding the case, we nevertheless cannot agree that the attorney’s testimony was admissible in the proceeding under review, or that it should be admitted in the proceedings to follow.
We agree that an attorney may testify as to “facts observable by anyone,” but we refuse to accept the characterization of the lawyer’s testimony here as merely reporting “facts observable by anyone.” If nothing were involved beyond observations open to anyone, it is doubtful that the attorney would have been called to the stand. His testimony was desired for a purpose more far-reaching. Any expression as to the client’s mental competency necessarily embraced more than facts observable by anyone; it comprehended conclusions drawn in the course of an association that is uniquely regarded in the law.
The lawyer’s observations were inextricably intertwined with communications which passed between him and his client. It cannot be said that the testimony was confined to nonconfidential matters. This being so, the well-established privilege which protects the client, against disclosure was violated.
The fact that a lawyer may be in a position to give enlightening testimony is-not itself sufficient reason for relaxing the client’s privileges. In many cases the client may have confessed his guilt to the lawyer, who would then be in an excellent position to give effective testimony, but our tradition forbids such disclosure. We know from other areas of the law that often the best evidence is barred from the case for reasons of policy. What more dramatic illustration could there be than Mapp v. Ohio? (367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081).
Consider the practical difficulty that arises when an attorney is permitted to testify on such an issue as the section 2255 hearing presented. The attorney testifies baldly that his client was “cooperative” and mentally competent. No meaningful cross-examination is possible ‘Without inquiring what his client said to him and what he said to his client.1 The client finds himself on the horns of a dilemma: Either he must forego raising the issue of his incapacity or he must surrender the protection of the privilege the law accords him — a choice he should not have to make. The lawyer’s conclu-sory opinion thus stands without possibility of effective challenge.
The new hearing which the court awards the appellant will, therefore, do him little or no good.
The appellant was earlier adjudicated insane by a court of competent jurisdiction. The adjudication has not been upset or revised, and no later medical exam*116ination was made in an attempt to show that the adjudication should no longer stand. The normal procedure of ordering a psychiatric examination to determine mental capacity to stand trial should have been followed before the case proceeded to trial. There was a similar opportunity, which was not grasped, when the section 2255 petition was filed. This would seem imperative when there is a background of confinement in a mental hospital, extensive psychiatric treatment, and a formal finding of a lunacy commission. Instead, the mere opinion testimony of a layman, the man’s own lawyer at that, is adduced in the section 2255 hearing to validate the original trial.
The least that the District Court should now do on remand of the case is to order a proper medical inquiry, and the man’s lawyer should not be looked to to supply the missing link.
Every impeachment the majority so rightly levels against the testimony giver? by the FBI agent as to appellant’s mental condition, on the ground that the witness was a medically untrained layman, applies with equal force to the testimony of the lawyer, likewise a layman in medical matters. Even worse, the lawyer, called to testify outside his professional sphere, did so against his own client. This not only violates the ordinary rule against the admission of expert testimony from inexpert witnesses,2 but it also undercuts the purpose and policy of the attorney-client relation. It is a procedure we cannot sanction.
Our brethren find it unnecessary to consider two issues argued before us: (1) whether by merely questioning his mental capacity the client has “flung open the curtain of secrecy,” thus waiving the privilege, and (2) whether the client’s assertion of his mental incapacity involves an implicit attack on the professional performance of his trial counsel, amounting to waiver of the privilege. However, in light of what we have said above, it is necessary for us to face these questions, if indeed they are not so related as to constitute a single question. Whether viewed singly or separately, the answer, in our opinion, must be in the negative.
We perceive no possible basis in reason for holding that the appellant has waived his privilege. Waiver of important rights is not lightly presumed, and will be found only upon a clear and compelling showing. Nor in the circumstances of this case can we regard the appellant’s questioning his mental capacity to stand trial as in any sense an attack on the lawyer. Cf. Hunt v. Blackburn, 128 U.S. 464, 9 S.Ct. 125, 32 L.Ed. 488 (1888) ; Farnsworth v. Sanford, 115 F.2d 375 (5th Cir. 1940), cert. denied, 313 U.S. 586, 61 S.Ct. 1109, 85 L.Ed. 1541 (1941); Cooper v. United States, 5 F.2d 824 (6th Cir. 1925); United States v. Butler, 167 F.Supp. 102 (E.D.Va.1957), affirmed, 260 F.2d 574 (4th Cir. 1958) ; United States v. Monti, 100 F.Supp. 209 (E.D.N.Y. 1951).
If a lawyer fails to recognize his client’s mental deficiencies, no fair-minded person would say that this necessarily involves faithlessness or negligence. It cannot be expected that the lawyer, who is a layman in psychiatric matters, will always appreciate his client’s mental limitations. Even if the client has told him a coherent story, it may later prove to be no more than a fantasy. Yet this would not discredit the lawyer in his profession. There are alternative conclusions fairly to be drawn without treating the issue as an attack upon the lawyer, necessitating the destruction of the client’s privilege. The lawyer is not called upon to vindicate himself, as, for example, where the client says “My lawyer gave me ineffective representation by failing to advance a defense of alibi.” There the lawyer would be permitted to say “I did not raise it because you did not inform me of it and, in fact, you told me that you were at the scene of the crime.”
Here, neither the ethics, nor the professional ability, nor the faithfulness of the lawyer has been put in doubt. He is *117not accused of giving poor advice, nor is ■any form of malfeasance or misfeasance .attributed to him. Any mild, indirect ■embarrassment that a lawyer might sense could not outweigh Kendrick’s rights. In •our case, to the contrary, the attorney indicated that he gave his testimony only because he felt obliged to obey the order •of the court.
With the majority, we recognize that the rule of privilege in the attorney-client relation is subject to an exception when the lawyer is attacked. In that case he may defend himself; but the exception .should not be interpreted so broadly as to swallow the rule. The door should not he shut tight against all testimony by ihe lawyer, but neither should the door he lifted off its hinges.
. See Gunther v. United States, 97 U.S. App.D.C. 254, 230 F.2d 222, 223 (1956), where the court said:
“In connection with any such hearing, the following comment is required. At the hearing on competency the lawyer who had been trial counsel for Gunther was called as a witness on behalf of the Government. He was asked whether in his opinion as a layman he felt Gunther was competent to stand trial and to assist him during the course of the trial. We are of the opinion this lawyer could not be called upon to testify upon that matter. If trial counsel in a criminal case could be called by the - Government and asked to give an opinion as to the accused’s competency and ability to assist in the defense, he could necessarily also be asked for the factual data upon which he premised his opinion. These questions' would open to inquiry by the Government the entire relationship between the accused and his counsel. Such revelations would be a violation of the attorney-client privilege and would also invade an accused’s right to counsel in the trial of the criminal'charge.”
. Turner v. American Security and Trust Co., 213 U.S. 257, 260, 29 S.Ct. 420, 53 L.Ed. 788 (1909); McKenzie v. United States, 266 F.2d 524 (10th Cir. 1959).