(concurring):
The real prejudice to both defendants from their being represented by the same attorney at trial, as fully appears from Judge Mulligan’s opinion, leaves us no choice but to reverse their convictions so *1058that, upon retrial, they may have separate counsel, and thus enjoy the full benefit of their Sixth Amendment rights. Several recent opinions of our court have focused on the problems created by one attorney representing more than one defendant in a criminal prosecution. It has become increasingly clear that the only way to ensure adequate representation for each defendant in a multi-defendant case is the initiative of the court to require separate counsel as soon as the court is aware of such a situation. The adoption of a rule by each district court, or by action of the court of appeals for the circuit, would solve the problem. However, until such a solution is agreed upon, we must examine the circumstances of each situation, with the result that additional judicial resources may be expended on a retrial of the defendants affected. As Judge Oakes in his concurring opinion in United States v. Mari, 526 F.2d 117, 119 (2d Cir. 1975) has given a full and fair account of the reasons why each defendant should have separate counsel at most stages of a criminal proceeding, I add only a few further observations.
It would be a rare defendant who could intelligently decide whether his interests will be properly served by counsel who also represents another defendant. However parallel his interests may seem to be with those of a co-defendant the course of events in the prosecution of the case, the taking of a guilty plea, or the conduct of the trial may radically change the situation so as to impair the ability of counsel to represent the defendant most effectively. Even defense counsel, who all too frequently are not adequately informed regarding the evidence available against their clients, may not be in a position to judge whether a conflict of interest between their clients may develop.
It is a rare defendant in a criminal case who fully advises his own counsel of all he knows about the charges against him. Accordingly, most counsel must operate somewhat in the dark and feel their way uncertainly to an understanding of what their clients may be called upon to meet upon a trial. Consequently, counsel are frequently unable to foresee developments which may require changes in strategy.
It follows that there will be cases where the court should require separate counsel to represent certain defendants despite the expressed wishes of such defendants. Indeed, failure of the trial court to require separate representation may, in cases such as this, require a new trial, even though the defendants have expressed a desire to continue with the same counsel. The right to effective representation by counsel whose loyalty is undivided is so paramount in the proper administration of criminal justice that it must in some cases take precedence over all other considerations, including the expressed preference of the defendants concerned and their attorney.
Our burgeoning criminal calendars and the need to try a larger percentage of criminal cases under the provisions of the Speedy Trial Act and court rules for the prompt disposition of criminal cases have made it all the more necessary for our federal trial courts to take all measures to avoid the necessity for the retrial of multidefendant cases. One such measure is to require separate counsel for each defendant in a multi-defendant case.