(dissenting):
I dissent.
The majority and I do not, I think, disagree on the law governing the Sixth Amendment right to effective assistance of counsel. I assume that the majority would agree with me that the Second Circuit has had a long and distinguished history of protecting that right and of ensuring that a waiver of it by the defendant may be made only in a knowing, intelligent, and voluntary manner. Indeed, it is now held that “waivers of Sixth Amendment rights must be measured by a ‘higher standard’ than are waivers of Fifth Amendment rights.” United States v. Mohabir, 624 F.2d 1140, 1146 (2d Cir. 1980); see United States v. Satterfield, 558 F.2d 655 (2d Cir. 1976). And I know the majority agrees with me, because it quotes the case, that the law of this Circuit is that
[i]n order to warrant a substitution of counsel during trial, the defendant must show good cause, such as a conflict of interest, a complete breakdown in communication or an irreconcilable conflict which leads to an apparently unjust verdict. ... If a court refuses to inquire into a seemingly substantial complaint about counsel when he has no reason to suspect the bona fides of the defendant, or if on discovering justifiable dissatisfaction a court refuses to replace the attorney, the defendant may then properly claim denial of his Sixth Amendment right.
United States v. Calabro, 467 F.2d 973, 986 (2d Cir. 1972) (citations omitted), cert. denied, 410 U.S. 926, 93 S.Ct. 1357, 35 L.Ed.2d 587 (1973). Where I differ, then, with the majority is in applying the Second Circuit law to the facts of this case, a case in which there appears to have been a fundamental disruption of the attorney-client relationship resulting in the defendant’s total loss of confidence in his assigned counsel and a complete breakdown in communication *935which was simply not inquired into by the state court trial judge.
First, to avoid confusion, I list what is not involved in this case. This is not a case of an attorney-client dispute arising after a trial was already well under way. The dispute occurred early on the morning of the second day of trial; the jury was in the process of being drawn and, of course, no witnesses had been called. Moreover, this case did not involve merely a disagreement over trial strategy; the disagreement went to the core of the attorney-client relationship. And this is not a case like Brown v. United States, 264 F.2d 363, 366-67 (D.C. Cir.) (en banc), cert. denied, 360 U.S. 911, 79 S.Ct. 1299, 3 L.Ed.2d 1262 (1959), heavily relied upon by the majority, in which the lawyers simply advised the accused that the chances of acquittal were not great. The record here does not indicate — although if the trial judge had inquired, it conceivably could have indicated — that this was, to use the majority’s words, only a matter of a client’s construing “frank advice as prejudgment of guilt.” Rather, this is a case in which, as McKee put it to the trial court,
[Mr. Occhetti] and the District Attorney had already deliberating [s/c] on my case, telling me that I am already guilty before I even get a trial, so if they say that to me, I don’t need him, he can go and join the D.A.
Shortly thereafter McKee elaborated:
I am going to respect the law as long as the law respects me, but when you tell me that I should let this man represent me when he already done stated as plain as day that he cannot defend me properly, and you are going to tell me I should stand here and let him represent me, no, ma’am, I am not going to let him represent me and he already said that I am guilty. How does he know I am guilty? Was he there when the crime took place? ... Do you realize that I am facing fifteen years to life and I am not going to let this man represent me when he done stated plain as day that I am guilty already[,] that my chances are slim and all the rest? No, ma’am.
The majority states that “McKee’s asserted reason for his loss of trust — that counsel had prejudged him and provided a pessimistic forecast — does not rise to the level of good cause for substitution of counsel.” But I had thought that it was the court’s function (with the help of the jury in this case) to determine guilt or innocence and that the defense lawyer’s function was, rather, “to serve as the accused’s counselor and advocate, with courage, devotion and to the utmost of his learning and ability, and according to law.” ABA Standards Relating to The Prosecution Function and The Defense Function § 1.1(b), at 153 (Approved Draft 1971). To be sure, counsel has a duty to advise his client with complete candor, which includes giving his estimate of the probable outcome, id, § 5.1(a), at 162, but “[i]t is unprofessional conduct for a lawyer intentionally to understate or overstate the risks, hazards or prospects of the case to exert undue influence on the accused’s decision as to his plea,” id. § 5.1(b). In short, it is one thing for counsel to advise a defendant to plead guilty because his chances are slim. Were that simply the case here, the reasoning of Brown would be compelling and I would agree with the majority decision. See also United States v. Gutterman, 147 F.2d 540 (2d Cir. 1945). But as I believe the above quotations from the record demonstrate, McKee asserted that he had totally lost confidence in attorney Occhetti not only because the latter had prejudged McKee’s case, but also because he had indicated to McKee both that McKee was guilty and his chances were slim, and that he, Occhetti, could not “defend [McKee] properly.” None of this was denied by Occhetti himself. None of this was inquired into by the court. Thus the possibility that McKee had misinterpreted Occhetti’s comments, a possibility which the majority seems to adopt as a finding, was never explored.
On this naked record — naked because of the trial judge’s failure to inquire — it ap*936pears that what was involved was not the “realistic assessment of the prospects of success in light of the risks of failure” to which the majority addresses itself, but rather was the kind of “breakdown in communication” referred to in Calabro, 467 F.2d at 986, as good cause for substitution of counsel. As the Ninth Circuit has stated, “to compel one charged with grievous crime to undergo a trial with the assistance of an attorney with whom he has become embroiled in irreconcilable conflict is to deprive him of the effective assistance of any counsel whatsoever.” Brown v. Craven, 424 F.2d 1166, 1170 (9th Cir. 1970). Occhetti’s actions and statements may well have so damaged his relationship with McKee that Occhetti would have been unable effectively to communicate with McKee and unable to conduct an adequate defense on his behalf. If this were indeed the ease, then McKee had a Sixth Amendment right to a substitution of counsel. However, the trial judge had no way of knowing whether good cause for substitution of counsel existed, because she did not inquire into the reasons for McKee’s dissatisfaction with Occhetti.
Although McKee finally decided to represent himself — and there is no question but that he did this knowingly and intelligently, for he was well aware of the consequences — it cannot be said that he made this decision “voluntarily.” See United States ex rel. Martinez v. Thomas, 526 F.2d 750, 755-56 (2d Cir. 1975) (defendant who represented himself “reluctantly, unwillingly and greatly to his detriment,” had “no freedom of choice,” and was merely “bowing to the inevitable” was denied his constitutional rights); Calabro, 467 F.2d at 985 (“it is important that the court consider whether the defendant affirmatively made a choice or whether he proceeded alone only because he felt ‘he had no choice’ and thus did not effectively waive his right”). McKee said in the present record:
Now, I will just state on the record that I don’t want to represent myself. I want an attorney.... I do not want to represent myself, but I do not want this attorney [Occhetti], but if I have to represent myself, I will do it to the best of my ability.
As McKee argues on appeal, his per se representation at trial was the absolute antithesis of the voluntary waiver of counsel required by law.
What makes this case in a sense ironic is that, if the trial judge had made the necessary inquiry and had found good cause, then with a delay of only a few days, other counsel unquestionably could have been secured. Mr. Ferber, an attorney who happened to be in the courtroom and who did in fact serve as advisor, could have been given a little more time than the weekend to prepare the case and to familiarize himself with possible defenses. I am reminded of my dissent in United States ex rel. Martinez v. Mancusi, 455 F.2d 705, 709 (2d Cir.) cert. denied, 409 U.S. 959, 93 S.Ct. 273, 34 L.Ed.2d 228 (1972), in which I stated that “the right to counsel under the sixth and fourteenth amendments means the right to counsel that has had opportunity to prepare.” But here McKee was rushed into defending himself after an apparent breakdown in communication with assigned counsel in a serious felony trial, before even the drawing of the jury had been completed. The trial judge’s refusal to inquire into whether good cause for a substitution of counsel existed was, in my view, a violation of McKee’s Sixth Amendment rights under our established case law.