dissenting.
The evidence in this case squarely presents us with the age-old truism that no person can properly serve two masters.1 See Holloway v. Arkansas, 435 U.S. 475, 482, 98 S.Ct. 1173, 1177, 55 L.Ed.2d 426 (1978) (conflict of interest indicated by “struggle to serve two masters”) (quoting *1075Glasser v. United States, 315 U.S. 60, 75, 62 S.Ct. 457, 467, 86 L.Ed. 680 (1942)); Cuyler v. Sullivan, 446 U.S. 335, 349, 100 S.Ct. 1708, 1718-19, 64 L.Ed.2d 333 (1980).
Because I believe that Evseroff’s representation of Gambino was compromised by an actual conflict of interest which did, in fact, adversely affect his performance, I respectfully dissent.2
As a preliminary matter I address Judge Sloviter’s contention that in our earlier holding in United States v. Gambino, 788 F.2d 938 (3d Cir.) cert. denied 479 U.S. 825, 107 S.Ct. 98, 93 L.Ed.2d 49 (1986), we “conclusively decidfed] that if Gambino produced nothing more than proof” of the omissions he alleged Evseroff had committed “we would not find an actual conflict of interest.” This assertion is incorrect and flies directly in the face of our actual determination in the prior appeal that our af-firmance of Gambino’s conviction was made “without prejudice to his ability to initiate a § 2255 collateral proceeding for the resolution of his conflict of interest claim.” Id. at 953 (emphasis added).
In the passage Judge Sloviter relies upon for her assertion that we have, in essence, already conclusively decided Gambino’s present conflict of interest case, we merely stated:
Both parties have advanced various, plausible interpretations of the trial strategy employed by Mr. Evseroff at Rosario Gambino’s trial. Consequently, we cannot approach this record with the sanquinity envisioned by Zepp. The narrow exception in Zepp is tailored to fit only those exceptional situations that lend themselves to only one conclusion— that trial counsel labored under an actual conflict of interest.
788 F.2d at 953. This passage states nothing more than the fact that we did not view this case as involving the narrow exception set forth in Government of Virgin Islands v. Zepp, 748 F.2d 125 (1984), to our general rule that we will not decide conflict of interest cases on direct appeal, without benefit of an evidentiary hearing. Id. at 133. Zepp carved out a narrow exception to the general rule for cases which, on direct appeal, present an adequate record upon which we can decide the conflict of interest claim. Id. Since this was not the case in Gambino, we did not feel sanguine, that is, we did not feel cheerfully confident to decide the issue and we, therefore, followed our general rule, affirming Gambi-no’s conviction “without prejudice to his ability to initiate a § 2255 collateral proceeding for the resolution of his conflict of interest claim.” 788 F.2d at 953. I conclude that we are unrestricted by our prior decision as we consider this case.
I.
I view the two salient facts in this case to be: (1) that Evseroff was given information which any attorney not suffering from a conflict of interest would have investigated and (2) that Evseroff admits that he chose not to pursue this evidence, at least in part, because of the loyalty he felt to Mazzara.
It is astonishing to me that an experienced trial lawyer would not raise the fact that a reputed heroin supplier was observed in the vicinity near the time of the crime and was in the same establishment as Spatola, the person the government alleged actually received the heroin, and thus a key actor in the alleged distribution of heroin, during a crucial “scene” in the drama on the day of the crime. This is especially so when the precise issue for Evser-off’s client at trial was whether that client or some other party had supplied the heroin and when the entire theory of the defense was that some other party had supplied the heroin.
*1076The Supreme Court recently noted that “[a] few bits of unforeseen testimony or a single previously unknown or unnoticed document may significantly shift the relationship between multiple defendants.” Wheat v. United States, — U.S. -, -, 108 S.Ct. 1692, 1699, 100 L.Ed.2d 140 (1988) (holding that district court has substantial latitude in refusing waivers of conflicts of interest). The repeated mention of Mazzara in the surveillance logs was exactly this type of information which altered the relationship between Mazzara, Gambi-no and Evseroff and. which created a conflict of interest.
I cannot believe that an attorney not suffering from a conflict, upon learning that Mazzara, a man the attorney knew had been charged with being a major heroin distributor, was on the scene at the critical period in question in the case, and recognizing, as Evseroff acknowledges he did, that there was “substantial evidence” that Mazzara and not his client was the source of the heroin, would not, at a minimum, follow up on such information. Yet Evseroff asked no questions concerning Mazzara, requested no additional evidence of Mazzara’s involvement from the government under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), sought no time for discovery, and did not even open the indictment in his own office which would provide him with the details of the heroin distribution charge levelled at Mazzara, details with which Evseroff claims he was unfamiliar.3
Why did he not do so? Evseroff asserts that he considered the possibility that such an argument could open the door to unknown rebuttal evidence possibly connecting Mazzara and Gambino. Yet in all the voluminous reports of government surveillance provided to the defense there was apparently no such link evident.4 More significantly, Evseroff testified that he did not ask his client, Gambino, if there was any such link. Nor did he request from the government any additional evidence it had of Mazzara’s possible involvement in the offense so that he could make an informed decision. Evseroff did nothing.
Evseroff states that he also worried that evidence concerning Mazzara might be inadmissible. Although the district court states that this concern was “well founded,” United States v. Gambino, No. 84-98, slip op. at 11 (D.N.J. Mar. 10, 1988), neither Evseroff, the government, nor the district court suggests a rule of evidence that would bar its admission. In any case Evseroff did not even attempt to introduce such evidence. Such timidity from a criminal defense lawyer of Evseroff’s experience is surprising.
Evseroff claims that, while there was “substantial evidence” that Mazzara was the source of the heroin, this evidence would not support a “substantial argument” along these lines. This is mere sophistry on Evseroff’s part. It is clear that the Mazzara defense argument which occurred to Evseroff was supported, as he states, by “substantial evidence,” and was consequently, a substantial argument.
Evseroff also argues that the Mazzara defense might have undermined the credibility of Spatola. However, Spatola had not yet testified at the point in the government’s case in chief when Evseroff learned of the Mazzara connection and Evseroff had not yet introduced the Spatola defense to the jury. Evseroff had merely argued that someone other than Gambino supplied the heroin. Evseroff, even if he knew at that point what Spatola would testify to, could have changed his defense entirely or merely added to it, without loss of esteem in the jury’s collective eye. Evseroff would not thereby have jeopardized his “good, viable, solid defense” that Gambino was not in Brooklyn on that date and had lent his car to his neighbor.
*1077I view, with great skepticism, the preference by an experienced trial attorney for the exculpatory evidence of Spatola who variously identified his sources as “Giuseppe Saia,” the “Little Baron,” “Savarino Rosario,” “Frank” and “Ignacio in Italy.” There was no proof, other than Spatola’s testimony, that indicated that any of these individuals ever existed. Mazzara on the other hand not only existed but was observed by government agents in the vicinity near the time of the crime. The gentlemen named by Spatola were never produced at trial. Mazzara on the other hand was a readily available, identifiable individual, and someone Evseroff knew had been charged as a major heroin supplier.
In any case it is a familiar trial tactic to argue in the alternative; that is, Evseroff could have promoted the Spatola defense that the unidentified “Little Baron” or “Saia” was the source and still could have raised a Mazzara defense as an alternative.
Evseroff testified at the § 2255 hearing that “one of the reasons, one of the factors, that entered into [his] decision not to cross-examine the agents on Mazzara [was that he] did not want to implicate Mazzara, [he] did not want to bring Maz-zara’s name out in the courtroom because [he] represented him.” (App. 60.) This was an improper consideration. Rosario Gambino “was entitled to an attorney who can make a decision to use or not to use testimony unfettered by the effect of that decision on his other client’s case.” Nealy v. Cabana, 782 F.2d 1362, 1365 (5th Cir.) cert. denied 479 U.S. 819, 107 S.Ct. 83, 93 L.Ed.2d 37 (1986) (emphasis added).
Foregoing a defense, even in part, because of the desire not to implicate another client precludes a determination that the decision was the result of a tactical judgment as the district court did in the present case. In United States v. Iorizzo, 786 F.2d 52 (2d Cir.1986), the Court of Appeals for the Second Circuit determined that a “conflict of interest led defense counsel to fore-go a most relevant line of inquiry.” Id. at 57. The conflict arose because defense counsel had previously represented the government’s key witness in a different proceeding. The court reversed the district court, rejecting the argument that the decision to forgo the line of inquiry was “the result of a tactical judgment by a conflict-free lawyer that such testimony would not be helpful to” the defendant.
I agree with Judge Greenberg’s acceptance of the definition of “actual Conflict of interest” provided in United States v. Fahey, 769 F.2d 829 (1st Cir.1985). That definition required the proof of two elements: (1) a plausible alternative defense, and (2) a conflict of that alternative defense with counsel’s other loyalties. Id. at 835-36.
I also agree that applying this test to the instant case resolves not only the actual conflict portion of the Cuyler test but the adverse effect portion as well. As Judge Greenberg notes “[c]learly, a defendant who establishes that his attorney rejected a plausible defense because it conflicted with the interests of another client establishes not only an actual conflict but the adverse effect of it.” Opinion at 1071. Once the defendant establishes that there was an actual conflict, he or she need not prove prejudice, but simply that a “lapse in representation” resulted from the conflict; Cuyler v. Sullivan, 446 U.S. 335, 349, 100 S.Ct. 1708, 1718-19, 64 L.Ed.2d 333 (1980).
Applying the Fahey definition to this case, I would recognize (1) that a plausible alternative defense was available, that is, the Mazzara defense, and (2) that this defense conflicted with Evseroff’s loyalty to his client, Mazzara, and perhaps to Evser-off’s own pecuniary interest in the fee from the Mazzara representation. Thus, an actual conflict of interest existed.
If Evseroff had an actual conflict of interest, it is clear that that conflict adversely affected his performance. The effect of the conflict lay in the fact of not pursuing the Mazzara defense. Thus the Cuyler test is satisfied. A sixth amendment violation has occurred.
II.
My conclusion that Evseroff suffered from an actual conflict of interest is buttressed by the evidence of Evseroff’s *1078sworn affidavit which states, inter alia, that:
6. Representing MR. MAZZARA, as I did at the time, it occurred to me that there was substantial evidence from which an argument could be made that he was the actual source of the heroin which was the subject of this Indictment. Nevertheless, when I cross-examined the surveilling agents, I carefully avoided any questions which might have implicated MR. MAZZARA out of a sense of loyalty to him and for fear that I might jeopardize his position in his impending trial.
7. I did not call to the attention of ROSARIO GAMBINO the observations of Mr. Mazzara contained in the surveillance reports, nor did I discuss with him my belief that an argument could be made that Mr. Mazzara was, in fact, the source of the heroin.
The affidavit was not renounced by Evseroff. The district court attached little weight to it, however, because of the “presence of underlying forces.” Despite this assertion the court cites no concrete evidence that these forces existed. The court asserts that the fact that “Carnesi was its draftsman” is one evidence of these forces at work in securing the affidavit. Yet Evseroff testified that, because of time constraints, he asked Carnesi, his friend, to draft the affidavit; that he would not sign the first draft because he did not agree with one of the items in it; that he read the second draft, and then signed it.
The only other “circumstances” which the district court articulates as the basis for its “underlying forces” conclusion were: (1) the fact that Rosario Gambino’s brother, who had retained all of the counsel in the case, met post-trial with Evseroff, and (2) that “Mario Gambino was of course at large, having been acquitted at trial.” Slip op. at 8. A meeting between Evseroff and the Gambino brother who had retained Evseroff, a meeting which occurred at least fifteen months prior to Evseroff signing the affidavit and more than a year prior to our decision in Gambino, would not, without more, normally be considered unusual. Likewise, the fact that Mario Gam-bino was “at large” should not serve to discount Evseroffs affidavit. Under our system of justice when a person is acquitted of a crime he is not “at large” — he is free.
The district court’s observations of the demeanor of the witness at the § 2255 hearing are, of course, entitled to deference by us. “This Court carefully observed the demeanor of both Messrs. Carnesi and Evseroff at the hearing. Particularly from Carnesi’s lengthy, glib, analytical answers, it appeared to this Court that we were not getting the whole story as to the pressures brought to bear to secure success on the present motion.” Id. at 9. Nonetheless, the government produced no direct evidence of “underlying forces” at work on Evseroff. Thus, while the court’s observation that Carnesi’s answers were “lengthy, glib, analytical” can be accepted as true by us, the court’s conclusion that there were underlying forces at work in procuring Evseroffs affidavit seems unsupported by the evidence.5
*1079Judge Greenberg is incorrect in concluding that because the district court was permitted to note the fact that Evseroff had defended a person involved in serious organized crime matters and had failed to gain an acquittal, the district court could ipso facto dismiss Evseroff’s affidavit as merely the result of “underlying forces and pressures,” and give the affidavit no credence. This determination by the district court was clearly not only error under the plenary review standard we utilize in conflict of interest cases, it was also, to the extent it was based on fact determinations made by the district court, clearly erroneous.6
In Government of Virgin Islands v. Zepp, 748 F.2d 125 (3d Cir.1984), we defined the standard of review we utilize in conflict of interest cases:
Whether the representation a defendant received at trial was “constitutionally inadequate” is a mixed question of law and fact. Strickland v. Washington, 104 S.Ct. at 2070; see Cuyler v. Sullivan, 446 U.S. at 342, 100 S.Ct. at 1714. The “clearly erroneous rule” is inapplicable and we are called upon to “freely review the district court’s conclusion.” United States ex rel. Johnson v. Johnson, 531 F.2d 169, 174 n. 12 (3d Cir.), cert. denied, 425 U.S. 997, 96 S.Ct. 2214, 48 L.Ed.2d 823 (1976).
Id. at 134.7
The district court’s conclusion that Evseroff did not raise the Mazzara defense simply because Evseroff concluded that it was specious and could have imperiled the credibility of Gambino’s defense, is, like its determination that Evseroff’s affidavit was the result of underlying forces, strongly contradicted by the record and based not upon facts but rather upon mere speculation.
III.
A.
Judge Greenberg apparently intends to discount Gambino’s claim with this assertion:
It seems clear that the existence of an actual conflict and adverse effects from it are more likely to be evident in cases in which an attorney takes positive steps on behalf of one client prejudicial to another than in cases in which the attorney’s *1080actions are based on inaction and are passive, as is charged here.
Opinion of the Court at 1070. Efforts by counsel which are foresworn due to a conflict are, of course, often harder to demonstrate than improper efforts undertaken. This is precisely why the presumption of prejudice to the defendant exists. Strickland, 466 U.S. at 692, 104 S.Ct. at 2067 (“it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests”). In fact, the essence of a conflict of interest violation is usually the very inaction and passivity it inspires. “[I]n a case of joint representation of conflicting interests the evil ... is in what the advocate finds himself compelled to refrain from doing.” Holloway v. Arkansas, 435 U.S. 475, 490, 98 S.Ct. 1173, 1182, 55 L.Ed.2d 426 (1978) (emphasis in original). The Supreme Court has recently remarked that “tjjoint representation of conflicting interests is suspect because of what it tends to prevent the attorney from doing.” Wheat v. United States, — U.S. —, —, 108 S.Ct. 1692, 1697, 100 L.Ed.2d 140 (1988) (emphasis added) (quoting Holloway v. Arkansas, 435 U.S. 475, 489-90, 98 S.Ct. 1173, 1182, 55 L.Ed.2d 426 (1978)).
Conflict of interest cases tend, therefore, to have us inquire into sins of omission rather than sins of commission. The truth that inaction is the essence of a conflict of interest problem is born out in the case before us. Evseroff, because of a perceived conflict of interest, refrained from following up in any fashion whatsoever on the Mazzara defense possibility.
Throughout Judge Greenberg’s opinion he limits his analysis of Gambino’s claim to Evseroff’s failure to cross-examine the government’s surveillance witnesses. While this contention was certainly important, an even more important omission raised by Gambino is the admitted lack of follow up by Evseroff.
B.
Judge Greenberg also writes that Evser-off could not have an actual conflict of interest because nothing “which Evseroff could have done at trial on behalf of appellant but omitted to do could have prejudiced Mazzara,” since Mazzara was not a defendant at the same trial. Judge Green-berg is “unable to conceive of how Mazzara would have been prejudiced if Evseroff had used evidence in the government’s possession regarding Mazzara to identify Maz-zara as the source of the drugs.” Yet testimony concerning Mazzara as the source of the heroin could have hurt Maz-zara at his trial. The government’s evidence in the logs was not the only source of prejudice to. Mazzara that Evseroff would consider in his decision not to present a Mazzara defense. If Evseroff had presented a full-fledged Mazzara defense, he might have called witnesses who would provide testimony which might incriminate Mazzara. This testimony, if inconsistent, might later be used to impeach those witnesses when testifying against Mazzara in the Badelemanti case. See Fed.R.Evid. 801(d)(1). If Evseroff uncovered new evidence or witnesses to support an argument that Mazzara was the source of the heroin, and presented the witnesses and evidence at Gambino’s trial, he could have provided further ammunition for the government to use against Mazzara in the Badelemanti case. The effort to present Mazzara as the source of heroin would obviously undermine Evseroff’s relationship with Mazzara. It goes without saying that most clients would not appreciate their attorney naming them as heroin sources. Additionally, if Evseroff produced sufficient evidence on the subject, it might have led to further charges against Mazzara. Yet Judge Greenberg reaches the remarkable conclusion that “from an objective viewpoint it was a matter of indifference to Mazzara if Evseroff had advanced him as the source of the heroin” at Gambino’s trial.
Even if this were the case — and it clearly was not — it is not Mazzara’s perspective which is important. It is the state of mind of Evseroff which is of crucial importance. If Evseroff labored under the weight of a feeling of loyalty to Mazzara which Evser-off perceived was at odds with his repre*1081sentation of Gambino, he suffered from a conflict. He could not perform as an unhampered zealous advocate. This is so whether or not he had reason to have this perception. Similarly, Evseroff would have a conflict whether or not Mazzara perceived one if he perceived that he would lose the fee from his representation of Mazzara, a not unrealistic possibility if he attempted to present Mazzara, charged with heroin distribution, as, in fact, the source of the heroin in question.
The question in conflict of interest cases is whether there has been a “struggle to serve two masters.” See Holloway, 435 U.S. at 482, 98 S.Ct. at 1177; Cuyler, 446 U.S. at 349, 100 S.Ct. at 1718-19. One “master” will always be the client seeking relief. The other master may be another client, but it may also be the financial interest of counsel or some other interest.
Indeed a conflict may arise not only in a multiple representation case as we have before us, but also where there is only one party being represented. See, e.g., Wood v. Georgia, 450 U.S. 261, 272, 101 S.Ct. 1097, 1103-04, 67 L.Ed.2d 220 (1981) (potential conflict when “adult” entertainment distributor directly employed and paid defense attorney representing its former employees); Briguglio v. United States, 675 F.2d 81, 82-83 (3d Cir.1982) (per curiam) (remanding for evidentiary hearing when defendant unaware until after verdict that counsel was under criminal investigation and that prosecutor’s office refused to discuss plea because of potential invalidation); United States v. Barnes, 662 F.2d 777, 782 (D.C.Cir.1980) (remanding for evidentiary hearing when representation at habeas hearing by counsel alleged to have rendered ineffective assistance on appeal would constitute conflict of interest between attorney and defendant); United States v. Taylor, 657 F.2d 92, 94 (6th Cir.) (per curiam) (remanding for inquiry to determine whether defendant’s attorneys, under investigation for possession of documents taken from United States Attorney’s office, could forcefully pursue client’s defense without incriminating themselves further), cert. denied, 454 U.S. 1086, 102 S.Ct. 646, 70 L.Ed.2d 622 (1981). United States v. Marrera, 768 F.2d 201, 207 (7th Cir.1985) (potential conflict when counsel entered into arrangement with defendant to share proceeds from sale of movie rights of defendant’s case), cert. denied, 475 U.S. 1020, 106 S.Ct. 1209, 89 L.Ed.2d 321 (1986); United States v. Hearst, 638 F.2d 1190, 1193 (9th Cir.) (potential conflict in counsel’s book contract concerning Patty Hearst trial), cert. denied, 451 U.S. 938, 101 S.Ct. 2018, 68 L.Ed.2d 325 (1980).
Judge Greenberg apparently views a conflict of interest as being only a conflict between two clients; while it may result from this situation, it is essentially a tension, a friction, a dissonance, within the attorney which does not permit the attorney’s single-hearted zealous advocacy on the part of a particular client. The circumstances surrounding the representation provide the evidence of the conflict. This conflict may occur even where there is no conflict between current clients. See, e.g., Wood v. Georgia, 450 U.S. 261, 272, 101 S.Ct. 1097, 1103-04, 67 L.Ed.2d 220 (1981); Davis v. Stamler, 650 F.2d 477, 480 (3d Cir.1981) (requiring disqualification when attorney who represented ex-president of corporation on charge of converting corporate assets had previously represented corporation, acted as interim president, and was potential prosecution witness); Briguglio v. United States, 675 F.2d 81, 82-83 (3d Cir.1982) (per curiam); United States v. Barnes, 662 F.2d 777, 782 (D.C.Cir.1980); United States v. Taylor, 657 F.2d 92, 94 (6th Cir.) (per curiam), cert. denied, 454 U.S. 1086, 102 S.Ct. 646, 70 L.Ed.2d 622 (1981); United States v. Marrera, 768 F.2d 201, 207 (7th Cir.1985), cert. denied, 475 U.S. 1020, 106 S.Ct. 1209, 89 L.Ed.2d 321 (1986); United States v. Hearst, 638 F.2d 1190, 1193 (9th Cir.), cert. denied, 451 U.S. 938, 101 S.Ct. 2018, 68 L.Ed.2d 325 (1981).
IV.
I turn now to a concern which I feel underlies this and many other multiple-representation drug cases which engulf our courts. There is a need to formulate a prophylactic rule to govern situations such as those presented to us here. The rule I *1082propose is required by the sixth amendment and frankly, would serve to prevent the waste in time and money which the nondisclosure of potential conflicts engenders by way of satellite litigation and appeal.
While the prophylactic rule suggested is not necessary to the resolution of this case, and while my thoughts on the proposed rule are not etched in stone, I believe that, if adopted, such a rule would safeguard the sixth amendment rights of defendants and encourage counsel to be more forthcoming about potential conflicts of interest so that the issues can be resolved when resolution is easiest — in the course of the trial — rather than on appeal.
I begin with the lawyer’s duty to his client. The duty of loyalty to a client is “ ‘perhaps the most basic’ responsibility of counsel and ‘it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests.’ ” Strickland, 466 U.S. at 692, 104 S.Ct. at 2067. A lawyer’s duty “runs hard and straight to the client.” Penegar, The Five Pillars of Professionalism, 49 U.Pitt.L.Rev. 307, 322 (1988). “A lawyer should exercise independent professional judgment on behalf of a client.” Model Code of Professional Conduct Canon 5.8 Indeed, the first ethical consideration under Canon 5 declares:
The professional judgment of a lawyer should be exercised, within the bounds of the law, solely for the benefit of his client and free of compromising influences and loyalties. Neither his personal interest,' the interests of other clients, nor the desires of third persons should be permitted to dilute his loyalty to his client.
Id. EC 5-1 (footnote omitted). The duty of loyalty is implicated where he or she represents two or more clients whose affairs somehow intersect. “This problem arises whenever a lawyer is asked to represent two or more clients who may have differing interests, whether such interests be conflicting, inconsistent, diverse, or otherwise discordant.” Id. EC 5-14 (emphasis added). Even where there are merely “potentially differing interests,” the lawyer “should resolve all doubts against the propriety of representation. A lawyer should never represent in litigation multiple clients with differing interests.” Id. EC 5-15.
Where multiple representation is permitted it should only be undertaken with the fully informed approval of the client. Ethical Canon 5-16 of the Model Code of Professional Responsibility states:
“In those instances in which a lawyer is justified in representing two or more clients having differing interests, it is nevertheless essential that each client be given the opportunity to evaluate his need for representation free of any potential conflict and to obtain other counsel if he so desires. Thus, before a lawyer may represent multiple clients, he should explain fully to each client the implications of the common representation and should accept or continue employment only if the clients consent.”
During the course of a trial counsel who recognizes a potential conflict has a duty to inform not only his other client but the court as well. In Cuyler the Supreme Court noted that: “Defense counsel have an ethical obligation to avoid conflicting representations and to advise the court promptly when a conflict of interest arises during the course of trial.... [Tjrial courts necessarily rely in large measure upon the good faith and good judgment of defense counsel.” 446 U.S. at 346-47, 100 S.Ct. at 1717 (footnote omitted). The Court explained that defense counsel “ ‘is in the best position professionally and ethically to determine when conflict of interest exists or will probably develop in the course of a trial.’ ” Id. at 347, 100 S.Ct. at 1717 (quoting Holloway v. Arkansas, 435 U.S. at 485, *108398 S.Ct. at 1179 and State v. Davis, 110 Ariz. 29, 31, 514 P.2d 1025 (1973)).
While the attorney has the burden to come forward with potential conflicts, we also must recognize that there are pressures upon defense counsel that countervail against the performance of this ethical responsibility. “Privately retained lawyers are subject to economic pressures and consequently cannot be relied on to alert clients to conflicts of interest.” Lowenthal, Joint Representation in Criminal Cases: A Critical Appraisal, 64 Va.L.Rev. 939, 985 (1978).
A prophylactic rule is therefore necessary in order to assist and encourage absolute forthrightness on the part of counsel so that the client and the court may decide the close issues involving potential conflicts rather than leaving that responsibility to the attorney who may be tempted to breach his or her responsibility because he “ ‘hate[s] to give up a fee.’ ” Id. at 962, n. 69 (quoting public defender).
The rule I propose is distilled from the ethical considerations outlined above. The Supreme Court has recognized that “prevailing norms of practice as reflected in the American Bar Association standards and the like” may serve as guides in determining what is reasonable conduct by counsel in a sixth amendment analysis. Strickland, 466 U.S. at 688, 104 S.Ct. at 2065. These guides cannot be developed into a detailed set of rules for counsel’s performance because of the limiting effect such rules would have on counsel’s independence and ability to make tactical decisions during trial. Id. at 688-69, 104 S.Ct. at 2065. The Court, however, in the conflict of interest context has departed from the deferential reasonableness standard applied to general adequacy of representation cases. Id. at 692, 104 S.Ct. at 2067. The Court has created a rule that inadequate representation will be presumed where an actual conflict of interest adversely affects the performance of counsel. Id.
The Court has not comprehensively defined “actual conflict of interest.” We may, therefore, turn to the ethical standards adopted by the American Bar Association, and outlined above, to guide our definition of this term.
We have previously held that, in a conflict of interest case, non-conformance with the rules of professional responsibility by an attorney representing a criminal defendant shall guide our examination of whether or not that defendant’s sixth amendment rights were infringed. United States v. Dolan, 570 F.2d 1177, 1184 (3d Cir.1978) (“we hold that when a trial court finds an actual conflict of interest which impairs the ability of a criminal defendant’s chosen counsel to conform with the ABA Code of Professional Responsibility, the court should not be required to tolerate an inadequate representation of a defendant”). Other courts have similarly found defense counsel’s violation of, or compliance with, ABA and other ethical standards as a pertinent consideration in the resolution of sixth amendment conflict of interest claims. See, e.g., United States v. Bernstein, 533 F.2d 775 (2d Cir.), cert. denied, 429 U.S. 998, 97 S.Ct. 523, 50 L.Ed.2d 608 (1976); United States v. Jeffers, 520 F.2d 1256 (7th Cir.1975), cert. denied, 423 U.S. 1066, 96 S.Ct. 805, 46 L.Ed.2d 656 (1976); In Re Rappaport, 558 F.2d 87 (2d Cir.1977); United States v. Siegner, 498 F.Supp. 282 (E.D.Pa.1980); United States v. Helton, 471 F.Supp. 397 (S.D.N.Y., 1979); United States v. Turkish, 470 F.Supp. 903 (S.D.N.Y.1978); United States v. RMI Co., 467 F.Supp. 915 (W.D.Pa.1979).
Using the guidance provided by the ethical rules outlined above, I would adopt a prophylactic rule which would require that, when, during the course of a trial, counsel becomes aware that he or she is subject to an interest which is “conflicting, inconsistent, diverse or otherwise discordant” with the interest of the client being tried, that attorney should, at the first opportunity, reveal this potential conflict to the client and the court. See Model Code of Professional Conduct EC 5-15. Failure to do so would result in a rebuttable presumption that an actual conflict existed. The client would retain the burden of proving adverse *1084effect on the client’s representation. See Cuyler, 446 U.S. at 348, 100 S.Ct. at 1718.9
If such a rule inspires counsel to be more forthcoming in disclosing potential conflicts of interest to his client and the court, the benefits of the rule are great. A conflict of interest denies a defendant a fundamental constitutional right. A conflict of interest appeal results in, at a minimum, waste of appellate time which the taxpayers pay for, and, at worst, the retrial of a defendant whose first trial, with all of its attendant costs, could have resulted in a valid conviction. See People v. Baker, 268 Cal.App.2d 254, 260, 73 Cal.Rptr. 758, 763 (1968). The proper functioning of our adversarial system of criminal justice is dependent upon the zealous advocacy of client’s interests by lawyers. Both individual clients and the criminal justice system suffer when advocacy is impaired by a conflict of interest.
Such a rule is subject to possible abuse. An unscrupulous defendant and counsel could conspire to create an undisclosed conflict of interest in the hope of winning a new trial should the defendant lose. The potential sanctions against the attorney, in the rarest of cases might not prevent such abuse. Such a scenario is, of course, possible even with the present definition of actual conflict of interest. In any case the benefits of the proposed rule far outweigh the costs which might result in the rarest of rare cases where an attorney conspires with a client to create a conflict of interest.
The application of the proposed rule to the present case would produce the same result as that produced by way of the traditional analysis undertaken previously. Under the proposed rule, since the government has been unable to rebut the presumption that Evseroff’s potential conflict resulted in an actual conflict of interest, and since the adverse effect on Gambino’s representation, as discussed above, is clear to me, Gambino’s sixth amendment rights were violated by a conflict of interest.
V.
Because Evseroff suffered from an actual conflict of interest in his representation of Rosario Gambino and because that conflict adversely affected his performance on behalf of Gambino, I would reverse the judgment of the district court and remand for a new trial.
. "No man can serve two masters: for either he will hate the one, and love the other; or else he will hold to the one, and despise the other.” Matthew 6:24.
. I agree with Judge Greenberg that the analysis to be undertaken in conflict of interest cases is that set forth in Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980), which requires a two part analysis once multiple representation is established. The defendant must show an actual conflict of interest and an adverse effect upon counsel’s performance. Id. at 348, 100 S.Ct. at 1718. Under either Judge Greenberg’s standard or Judge Sloviter’s which joins the two inquiries, I believe the facts lead to the inescapable conclusion that Gambino’s sixth amendment rights were violated.
. I do not rely in my conclusions in this case upon any of the evidence made known to Evser-off subsequent to Gambino’s trial and which a proper investigation would have disclosed. This evidence provided very strong support for an argument that Mazzara was indeed the supplier and that prosecutors in the Southern District of New York had concluded as much.
. Evseroff testified that he was aware of no evidence, other than the surveillance logs, which even mentioned Mazzara.
. On the other hand the government engaged in three concrete actions which may have been targeted at altering Evseroffs position with regard to the conflict of interest. First, the government filed an unethical conduct complaint, predicated upon Evseroffs affidavit, with a New York bar committee. Second, the government informed Evseroff that it would object to his appearance pro hoc vice in an upcoming case in the District of New Jersey. The third and most questionable action on the government’s part was the serving upon Evser-off, by an F.B.I. agent, two weeks prior to the hearing, a subpoena for his income tax returns from 1979 to that time, along with a request for the record of funds received from Gambino and Mazzara. After a meeting between Evseroffs lawyer and the government attorney in charge of this case, at which Evseroffs lawyer disclosed what Evseroffs position would be at the hearing, the demand for the tax returns was withdrawn. The district court determined that Evseroffs testimony was unaffected by these actions.
It should be emphasized that if there is evidence of coercive measures employed by the government against criminal defense attorneys these actions should not be tolerated or ignored by a district court. It is worth noting in this regard that 18 U.S.C. § 1512 prohibits witness tampering ("Whoever knowingly uses intimidation ... with intent to_influence, delay, *1079or prevent the testimony of any person in an official proceeding” violates this section). This is not to suggest that the district court in this case condoned such activity by the government —to the contrary, it appears that the court accepted a plausible explanation the government made for its actions. I merely take this opportunity to reemphasize the importance of the principle outlined above.
I further note that we are not required in this decision to determine whether the government had an obligation to raise the conflict issue as a result of the government in the Southern District of New York having determined that Maz-zara was supplying heroin to the Gambino family on the day in question.
. Burger v. Kemp, 483 U.S. 776, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987), does not purport to alter this standard or the cases we relied upon in annunciating the standard. The Court, while deferential to the district court in that case, was equally deferential to the appeals court decision on review. The Court stated: "the regional Courts of Appeal are in a far better position than we are to conduct appellate review of these heavily fact-based rulings." Id. at 3121.
It should also be noted that the Court in Burger made its deferential comments in the context of examining the competence of an attorney in the course of its conflict of issue determination. The question was whether or not "a lawyer has performed his or her solemn duties in such a case at or above the lower boundary of professional competence.” Id. 107 S.Ct. at 3121. Competence issues have traditionally been subject to a very deferential standard by the Supreme Court. Strickland v. Washington, 466 U.S. 668, 688-90, 104 S.Ct. 2052, 2065-66, 80 L.Ed.2d 674 (1984). Conflict of interest claims as a whole, on the other hand, are governed by a nondeferential standard. Id at 692, 104 S.Ct. at 2067.
In any case the Court in Burger was not faced with the strong direct evidence of an actual conflict of interest presented in this case.
. The determinations of pure fact made by the district court to support its assertion that there was no conflict of interest in this case are due deference by us. However the determination that there was indeed a conflict of interest is not a fact determination and may be freely reviewed by us. Nor need we defer to vague conclusions of the district court, unsupported by facts, that Evseroffs affidavit was the result of underlying forces.
. The ethical guidelines discussed here are taken from the ABA Model Code of Professional Responsibility. In August, 1983 the ABA replaced the entire Model Code with the Model Rules of Professional Conduct. The ethics rules of the majority of states, however, are still pat-temed after the Model Code. The Model Rules contain ethical guidelines concerning conflicts of interest which, in general, parallel those in the Model Code discussed here. See ABA Model Rules of Professional Conduct Rule 1.7 and comment.
. In Cuyler the Court stated:
Since a possible conflict inheres in almost every instance of multiple representation, a defendant who objects to multiple representation must have the opportunity to show that potential conflicts impermissibly imperil his right to a fair trial. But unless the trial court fails to afford such an opportunity, a reviewing court cannot presume that the possibility for conflict has resulted in ineffective assistance of counsel. 446 U.S. at 348, 100 S.Ct. at 1718. Since ineffective assistance of counsel which requires both an actual conflict of interest and an adverse effect upon the lawyer’s performance is not being presumed under the proposed rule, and since the Court in Cuyler was not speaking to the issue of the nondisclosure to the client or court of potential conflicts of interest, the above statement from Cuyler does not preclude the proposed prophylactic rule.