specially concurring:
I join in the judgment upholding Beets’s conviction and sentence and in the opinion that an actual conflict has not been shown. I do not agree with the opinion’s alternative cast that the conviction and sentence could stand under the adverse effect test of Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), if it were applicable. I also argue that in an appropriate case the adverse effects tests should be confined to conflict engendered by conflicting interests of multiple clients.
I
This court has failed to articulate a satisfactory definition of adverse effect. Operating in this void, and aware that Cuyler did not require a showing of prejudice, the district judge fashioned this rule: “an adverse effect on performance is demonstrated when counsel, laboring under an actual conflict of interest, pursues some course of conduct inconsistent with the best interests of his client.” This statement captures the elusive lesser standard.
Sister circuits have lenient standards for adverse effect. In the First Circuit, a defendant must show that his counsel did not undertake a "plausible alternative defense strategy or tactic" due to counsel’s other interests. United States v. Rodriguez Rodriguez, 929 F.2d 747, 751 (1st Cir.1991). Similarly, the Tenth Circuit requires a defendant to show that "a seemingly valid or genuine alternative strategy or tactic" was available, "but it was inherently in conflict with [counsel’s] duties to others or to his own personal interests." Church v. Sullivan, 942 F.2d 1501, 1512 (10th Cir.1991). The Ninth Circuit has suggested that the defendant need only show that some effect on counsel’s handling of particular aspects of the trial was "likely." United States v. Miskinis, 966 F.2d 1263, 1268 (9th Cir.1992) (quoting Mannhalt v. Reed, 847 F.2d 576, 583 (9th Cir.), cert. denied, 488 U.S. 908, 109 S.Ct. 260, 102 L.Ed.2d 249 (1988)).
We should reconsider whether the Cuyler standard, developed by the Supreme Court in a multiple representation case, should be applied in cases, like this one, in which the lawyer did not face the conflicting demands of more than one client.
II
The decision of E. Ray Andrews, Beets’s trial counsel, not to testify had an adverse effect on her defense. Andrews had significant testimony to offer regarding the critical issue of whether the killing of Jimmy Don Beets was for a remunerative purpose. Specifically, Andrews could challenge the state’s contention that Beets killed her husband for insurance and other benefits payable on his death. If the jury reasonably doubted that Beets killed her husband for the insurance money, the murder was not a capital offense.
By the test of Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), Beets did not have the burden of showing actual prejudice, meaning that the result of the trial probably would have been different. United States v. Greig, 967 F.2d 1018, 1024 (5th Cir.1992). To warrant relief she had to demonstrate an adverse effect upon her representation. In its alternative holding of no adverse effect, the majority effectively places on Beets the burden of showing actual prejudice.
Cuyler’s adverse effect element establishes a relatively low threshold for a petitioner to cross. "Once it has been established that an actual conflict exists, prejudice to the defendant must be presumed, in all but the most extraordinary circumstances the error cannot be considered harmless." Mitchell v. Maggio, 679 F.2d 77, 79 (5th Cir.), cert. denied, 459 U.S. 912, *1491103 S.Ct. 222, 74 L.Ed.2d 176 (1982). This limited presumption of prejudice arises from a showing of adverse effect "because, as the Court said in Strickland, `it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests.’" Nealy v. Cabana, 782 F.2d 1362, 1365 (5th Cir.) (quoting Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674 (1984)), cert. denied, 479 U.S. 819, 107 S.Ct. 83, 93 L.Ed.2d 37 (1986). The panel in Nealy found proof of adverse effect in a multiple representation case, because defense counsel worried that if A testified at B’s trial it would harm A’s trial. The state responded that even if counsel did not represent both, he might not have called A due to fear of A incriminating B. The panel rejected this argument, stating that "a showing of adverse effect does not involve a `but for’ test." Id. Once an actual conflict has been established, the Supreme Court sought to avoid questioning its effect on a case, which requires courts "`to indulge in nice calculations as to the amount of prejudice’ attributable to the conflict." Cuyler, 446 U.S. at 349, 100 S.Ct. at 1719 (quoting Glasser v. United States, 315 U.S. 60, 76, 62 S.Ct. 457, 467, 86 L.Ed. 680 (1942)).
All agree that a showing of adverse effect requires less than a showing of prejudice under Strickland- For that reason some courts have insisted that evidence of guilt adduced by the state should play no part in determining whether an adverse effect on performance occurred. See United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir.1980) (stating that overwhelming evidence of guilt would be irrelevant to an adverse effect inquiry), cert. denied, 451 U.S. 938, 101 S.Ct. 2018, 68 L.Ed.2d 325 (1981); accord State v. Jenkins, 148 Ariz. 463, 715 P.2d 716, 720 (1986). Yet the majority invokes the testimony of Denny Burris to establish that “the absence of [Andrews’s] testimony did not adversely affect” Beets’s defense. Burris, a disinterested witness, stated that Beets inquired about Jimmy Don’s insurance soon after the murder. The suggestion is that because Beets discussed insurance with Burris, a chaplain, the biased testimony of Andrews was unlikely to have swayed the jury and its absence was unimportant. Burris was a chaplain, but his assignment was to discuss with Betty Beets benefits due the widow of a fireman; it was not a mission to console a widow with prayer where the widow’s interest was insurance not intercession. ' So the evidence of Beets’s early focus on insurance, as the state would have it, is not so compelling, accepting the truth of every word of Burris’s testimony. Nonetheless, I agree that Andrews’s testimony would not, in all likelihood, have changed the jury’s verdict. To say that, however, is to dispel prejudice under Strickland but not necessarily an adverse effect under Cuyler.
The record discounts the contention that Beets’s' trial defense relied solely or even predominantly on showing that her son killed Jimmy Don. Throughout the trial Beets attacked the remuneration element of the state’s case on which her capital murder conviction rests. Andrews’s testimony could have significantly bolstered that defense. In addition to Beets’s own testimony, Bruce Roberts testified that more than a year after Jimmy Don’s murder Beets seemed ignorant of his insurance and benefits. Andrews, however, could have told the jury that he mentioned to Beets the possibility of receiving benefits shortly after Jimmy Don’s disappearance. Any later interest or inquiry into benefits could havé been attributable to this post-murder information. Moreover, Andrews could have established Beets’s lack of knowledge at a time closer to the murder than Roberts’ evidence. Andrews’s testimony was not merely cumulative. I cannot conclude that it would not have been helpful to Beets at trial.15 It certainly would have been in Beets’s best interest for Andrews to have testified. Given the low threshold established by Cuyler, I would *1492not reject Judge Parker’s conclusion that Andrews’s failure to give this evidence at trial adversely affected the conduct of her defense.
III
I question the wisdom of applying Cuyler to a conflict of interest not created by the competing interests of multiple clients. "Numerous federal courts have failed to discern in Cuyler any limitation to cases involving multiple representation of defendants. Most of these courts have simply applied Cuyler to non-multiple-representation situations without even considering the possibility that it did not apply." Illinois v. Washington, 469 U.S. 1022, 1023, 105 S.Ct. 442, 443, 83 L.Ed.2d 367 (1984) (White, J., dissenting from denial of certiorari) (citations omitted). This panel must follow such precedents applying Cuyler to alleged conflicts between defendants and their counsels’ personal interests. See, e.g., United States v. Greig, 967 F.2d 1018 (5th Cir.1992) (applying Cuyler to conflict created when trial counsel was accused of improper contact with a witness); Ware v. King, 694 F.2d 89, 92 (5th Cir.1982) (applying Cuyler to alleged conflict arising because counsel had disputes with prosecutor unrelated to petitioner’s trial), cert. denied, 461 U.S. 930, 103 S.Ct. 2092, 77 L.Ed.2d 302 (1983). In my view, however, these facts present a situation better judged by Strickland v. Washington than by Cuyler v. Sullivan.
Typical conflict of interest cases involve either simultaneous representation of codefendants with conflicting interests or successive representation of codefendants and trial witnesses. See Mitchell v. Maggio, 679 F.2d 77, 79 n. 4 (5th Cir.), cert. denied, 459 U.S. 912, 103 S.Ct. 222, 74 L.Ed.2d 176 (1982); United States v. Shepard, 675 F.2d 977, 979 (8th Cir.1982). The Cuyler test was created in that context and best suited to it. The Court may not have contemplated that the test would be applied to other types of conflicts.16 Notably, in 1984 three justices sought to grant a writ of certiorari in order to address the question of whether the Cuyler standard should be limited to multiple representation cases. See Illinois v. Washington, 469 U.S. at 1022, 105 S.Ct. at 442 (White, J., dissenting, joined by Burger, C.J. and Rehnquist, J., dissenting from denial of certiorari).
The actual conflict plus adverse effect test of Cuyler should not be applicable to Beets’s case because these facts did not present Andrews with a choice of intolerable alternatives. In a multiple representation conflict, counsel represents two clients with competing interests and is torn between two duties. Counsel can properly turn in no direction. He must fail one or do nothing and fail both. The defendant in a real sense did not have the lawyer secured to him by the sixth amendment. On the other hand, there is little meaningful distinction between a lawyer who inadvertently fails to act and one who for selfish reasons decides not to act. Lawyers who have a choice but fail to choose correctly are of a different genre from lawyers who have no choice. In one case the defendant has a lawyer albeit one who does not act in the defendant’s best interest. In the other the defendant has no lawyer. As Justice Powell put it in Cuyler, “The conflict itself demonstrated a denial of the ‘right to have the effective assistance of counsel.’ ” 446 U.S. at 349, 100 S.Ct. at 1719 (quoting Glasser, 315 U.S. at 76, 62 S.Ct. at 467). It was for that reason that prejudice is presumed under Cuyler. The conflict between Andrews’s self-interest and Beets’s best interest, however, belongs to the other genre. Andrews did not face conflicting duties in the eye of the law. Rather than being immobilized by conflicting ethical duties, Andrews was obligated to advance the best interest of his client despite his *1493own interests or desires.17 Andrews’s failure to do so, resulting in his failure to call an important witness—himself—should be treated as a matter cf. professional effectiveness under Strickland, not as a conflict of interest under Cuyler.
The same conclusion is arguably reached by a finding of no actual conflict in non-multiple representation cases. The clearer route, in my view, realizes that Cuyler should not be implicated.
. The majority's suggestion that Andrews might not have testified had there been no conflict carries no weight. We rejected such an argument when made by the state in 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).
. Consider Justice Marshall’s separate opinion in Cuyler. Arguing that a defendant need only show an actual conflict and nothing more, he added a footnote regarding the definition of "conflict of interests.” Only multiple representation problems are mentioned by the authorities discussed. Cuyler, 446 U.S. at 356 n. 3, 100 *1493S.Ct. at 1722 n. 3 (Marshall, J., concurring in part and dissenting in part).
. See Texas Code of Professional Responsibility DR 5-102(A) (1982) (requiring counsel who should be a witness to withdraw from representation). The Code also provided: "In the exercise of his professional judgment on those decisions which are for his determination in the handling of a legal matter, a lawyer should always act in a manner consistent with the best interests of his client.” Id. EC 7-9 (footnotes omitted).