(concurring):
It is true that the cases in our circuit have to date required a specific showing of prejudice or a real conflict of interest resulting from joint representation of co-defendants by one attorney before Sixth Amendment rights may be said to have been invaded. United States v. Lovano, 420 F.2d 769, 773 (2d Cir.), cert. denied, 397 U.S. 1071, 90 S.Ct. 1515, 25 L.Ed.2d 694 (1970); see United States v. DeBerry, 487 F.2d 448, 453 (2d Cir. 1973). Under this test, which as the law of the circuit each judge is bound to follow, I am required to concur here, for the reasons well stated in Judge Mulligan’s opinion. See also Dukes v. Warden, 406 U.S. 250, 256, 92 S.Ct. 1551, 32 L.Ed.2d 45 (1972).
The time is rapidly approaching, however, when, in the light of more exacting standards of the Bar and the decisions of other leading courts, we may have to reexamine our rule. The American Bar Association now takes the view, albeit *120with not altogether crystalline clarity, that
Except for preliminary matters such as initial hearings or applications for bail, a lawyer or lawyers who are associated in practice should not undertake to defend more than one defendant in the same criminal case if the duty to one of the defendants may conflict with the duty to another. The potential for conflict of interest in representing multiple defendants is so grave that ordinarily a lawyer should decline to act for more than one of several co-defendants except in unusual situations when, after careful investigation, it is clear that no conflict is likely to develop and when the several defendants give an informed consent to such multiple representation.
ABA Standards Relating to the Prosecution Function and the Defense Function § 3.5 (Approved Draft 1971) at 211, 213. See also P. Wilson, Pattern Rules of Court and Code Provisions (prepared for the Committee on Implementation of Standards for the Administration of Criminal Justice of the Section of Criminal Justice of the ABA, 1975) at 38-39.
The District of Columbia Circuit has a rule of automatic appointment of separate counsel initially under the Criminal Justice Act, 18 U.S.C. § 3006A. See Ford v. United States, 126 U.S.App.D.C. 346, 379 F.2d 123, 126 (1967); Lollar v. United States, 126 U.S.App.D.C. 200, 376 F.2d 243 (1967). The First Circuit as an exercise of its supervisory power requires the trial court to comment on the risks inherent in dual representation, and to inquire as to each defendant’s discussion of the risks with counsel, and understanding that he has a right to retain separate counsel and if qualified at Government expense. If the trial court neglects this inquiry, the Government must prove that prejudice to the defendant was “improbable.” United States v. Foster, 469 F.2d 1, 4-5 (1st Cir. 1972). The Third Circuit requires no specific showing of prejudice as we do but rather holds that “upon a showing of a possible conflict of interest or prejudice, however remote, we will regard joint representa- . tion as constitutionally defective.” United States ex rel. Hart v. Davenport, 478 F.2d 203, 210 (3d Cir. 1973). See generally Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Dukes v. Warden, supra.
The problem is that even where as here both codefendants pleaded guilty there are frequently potential conflicts of interest. As the ABA Standards, supra, at 213, point out, the prosecutor may be inclined to accept a guilty plea from one codefendant which may harm the interests of the other. The contrast in the dispositions of the cases may have a harmful impact on the codefendant who does not initially plead guilty; he may be pressured into pleading guilty himself rather than face his codefendant’s bargained-for testimony at a trial. And it will be his own counsel’s recommendation to the initially pleading co-defendant which will have contributed to this harmful impact upon him. While there appears in this case no advantage to permitting Mari to plead guilty just because MacQueen was willing and anxious to do so, Dukes v. Warden, supra, in a given instance it would be at least conceivable that the prosecutor would be willing to accept pleas to lesser offenses from two defendants in preference to a plea of guilty by one defendant to a greater offense. As the ABA Standards, supra, at 213, also point out, the very fact of multiple representation makes it impossible to assure an accused that his statements to the lawyer are given in full confidence.
I do not suggest that I would propose any rule that dual representation is per se constitutionally defective, much less that a majority of the active members of this court, or the High Court on the Potomac, would agree to such a rule. I would propose, however, that given steadily increasing numbers of competent lawyers available, the availability of CJA funds for counsel for the indigent and the probabilities of conflict of interest inherent in dual representation, it should be only after the most searching *121inquiry in the part of the court and in those exceptional circumstances where a conflict is not within the realms of reasonable foreseeability that dual representation by defense counsel should be permitted. The District of Vermont has had such an unwritten rule in effect for many years. Such a rule prevents both an occasional injustice and, equally important, the appearance of injustice.
I should make it clear that in my view it is immaterial whether we are talking about trying a case or handling a plea of guilty; the ABA Standards make no differentiation and unequivocally permit dual representation only in “preliminary matters such as initial hearings or applications for bail. . . . ” It also makes no difference whether counsel is appointed by the court or selected by the defendants; even where selected by the defendants the same dangers of potential conflict exist, and it is also possible that the rights of the public to the proper administration of justice may be affected adversely. Cf. United States v. Liddy, 348 F.Supp. 198 (D.D.C.1972) (four Watergate defendants submitted affidavit opposing Government’s motion to require separate counsel).
Trial court insistence that, except in extraordinary circumstances, codefendants retain separate counsel will in the long run in my opinion prove salutary not only to the administration of justice and the appearance of justice but the cost of justice; habeas corpus petitions, petitions for new trials, appeals and occasionally retrials, see, e. g., United States v. Olsen, 453 F.2d 612 (2d Cir.), cert. denied, 406 U.S. 927, 92 S.Ct. 1801, 32 L.Ed.2d 128 (1972), can be avoided. Issues as to whether there is an actual conflict of interest, whether the conflict has resulted in prejudice, whether there has been a waiver, whether the waiver is intelligent and knowledgeable, for example, can all be avoided. Where a conflict that first did not appear subsequently arises in or before trial, e. g., United States v. DeBerry, supra; Austin v. Erickson, 477 F.2d 620 (8th Cir. 1973); Holland v. Henderson, 460 F.2d 978 (5th Cir. 1972), continuances or mistrials can be saved. Essentially by the time a case such as the present one gets to the appellate level the harm to the appearance of justice has already been done, whether or not reversal occurs; at the trial level it is a matter which is so easy to avoid. As I have said in another context, not without irony intended, Morgan v. Montanye, 521 F.2d 693, 694 (2d Cir. 1975) (dissent from denial of rehearing en banc), the right to counsel is a “rather fundamental” one. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). Only after the greatest scrutiny and in exceptional circumstances should dual representation, which may so frequently impair this right, be sanctioned by a federal district court.