dissenting:
Bernard Eric Miller was denied his right to appeal his criminal conviction because he could not afford to obtain, and the State of Maryland refused to provide, a trial transcript which was necessary to perfect his appeal. Since I believe Maryland’s refusal to provide a transcript deprives Miller of the protections guaranteed by the U.S. Constitution, I respectfully dissent.
I
Following his conviction for felony murder in Maryland state court, Miller attempted to obtain a transcript of his trial in order to perfect a direct appeal. As an indigent, Miller sought the transcript at state expense. The state refused to provide the transcript because Miller received legal representation from an attorney working on a pro bono publico basis instead of a Maryland public defender. Being indigent, had Miller accepted representation by a public defender, he would have been provided a transcript free of charge. In Maryland, a transcript is a necessity for lodging an appeal. Md. Rules 8-411, 8-413(a), 8-602(a).
Acknowledging Miller’s right as an indigent to a transcript necessary for appeal purposes, the trial court nevertheless ruled that Maryland Rules 1 — 325(b) and 8-505 required an indigent to be represented by the state public defender’s office in order to receive a transcript at state expense. Miller appealed to the Maryland Court of Special Appeals. The appellate court reversed on purely statutory grounds arguing that Maryland Rule l-325(b) permitted an indigent defendant represented by pro bono counsel to receive at state expense the transcript necessary for appeal. Miller v. State, 98 Md.App. 634, 635 A.2d 1, 6 (1993). The Maryland Court of Appeals granted certiora-ri and reversed, holding that the Maryland Rules neither required the provision of a free transcript to Miller nor violated his constitutional rights. State v. Miller, 337 Md. 71, 651 A.2d 845, 846, 851-852 (1994). The court read Rule l-325(b) as requiring an indigent to “apply to the Public Defender and be represented by, or refused representation by, that office before he can receive a free transcript.” Id., 651 A.2d at 849. The court explained that the rule uses the public defender as a “gatekeeper” to protect against the waste or abuse of state resources set aside for indigent defendants. Id., 651 A.2d *1145at 850. Under this interpretation, it is unlikely that many indigent defendants will be able to secure pro bono publico representation.
Miller sought reconsideration of the ruling, which denied him the transcript which would have been provided had he been represented by the public defender, arguing that a conflict of interest on the part of the public defender’s office prevented him from accepting its services on appeal. He maintained that in the course of representing his co-defendant in the underlying murder case, the public defender’s office had accused Miller of being the driver of the car and thus, the murderer. Forcing him to accept public defender services on appeal, Miller argued, would therefore violate his constitutional protection against conflict-free legal representation.1 The court of appeals denied the motion.
Miller next filed his federal habeas corpus petition which was rejected by the district court. Meanwhile, the Maryland Court of Special Appeals dismissed Miller’s direct appeal because he failed to provide the relevant trial transcript.
II
“The State may not erect a bar in the form of a transcript and filing costs beyond the petitioner’s means.” M.L.B. v. S.L.J., — U.S. -, -, 117 S.Ct. 555, 570, 136 L.Ed.2d 473 (1996) (Kennedy, J., concurring). Maryland’s refusal to provide Miller with a transcript, preventing comparable justice afforded to the affluent who could pay and to the indigent accepting public defender representation who could not, created just such a bar, and the state’s action violated Miller’s rights under the Sixth and Fourteenth Amendments.
III
A
The U.S. Constitution does not obligate states to provide an opportunity to appeal in criminal cases. McKane v. Durston, 153 U.S. 684, 687, 14 S.Ct. 913, 914-915, 38 L.Ed. 867 (1894). If a state chooses to create such a right to review, however, it must employ procedures that satisfy due process and equal protection. Evitts v. Lucey, 469 U.S. 387, 393, 105 S.Ct. 830, 834, 83 L.Ed.2d 821 (1985); Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 590, 100 L.Ed. 891 (1956).
Moreover, if the state provides the right to appellate review, it may not “bolt the door to equal justice.” Griffin, 351 U.S. at 24, 76 S.Ct. at 593 (Frankfurter, J., concurring in judgment). Failure to provide review to those who cannot afford it “means that many of them may lose their life, liberty or property because of unjust convictions.” Id. at 19, 76 S.Ct. at 590. The review is especially inadequate when circumscribed by likelihoods of conflict of interest.
Drawing on these notions of fairness and equality, the Supreme Court has held that the Fourteenth Amendment guarantees “meaningful access to justice” in criminal eases. Ake v. Oklahoma, 470 U.S. 68, 77, 105 S.Ct. 1087, 1093, 84 L.Ed.2d 53 (1985). All criminal defendants are entitled to “an adequate opportunity to present their claims fairly within the adversary system.” Ross v. Moffitt, 417 U.S. 600, 612, 94 S.Ct. 2437, 2444-2445, 41 L.Ed.2d 341 (1974). “justice,” the Court has explained, “cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake.” Ake, 470 U.S. at 76, 105 S.Ct. at 1092.
No one disputes the applicability of these long-standing principles to Miller’s case, as Maryland has created a statutory right of direct appeal for convicted criminals. See Md.Code Ann., [Cts. & Jud. Proc.] § 12-301 (1995). The disagreement here concerns Maryland’s method for providing transcripts to indigent appellants and the impact of that method on Miller. The state contends that its procedures ensure meaningful access consistent with the requirements of the Four*1146teenth Amendment. Miller insists that they fall short.
There “is a flat prohibition against making access to appellate processes from even [the state’s] most inferior courts depend upon the [convicted] defendant’s ability to pay.” M.L.B., — U.S. at -, 117 S.Ct. at 561 (citing Mayer v. Chicago, 404 U.S. 189, 196—197, 92 S.Ct. 410, 416, 30 L.Ed.2d 372 (1971)). An individual indigent defendant is entitled, therefore, to a free transcript, which is provided to essentially all other indigents, i.e. those accepting public defender representation, when one is necessary to a decision on the merits of his criminal appeal. Griffin, 351 U.S. at 19-20, 76 S.Ct. at 591. In Maryland, appellate courts require the relevant trial records to accompany an appeal and have the discretion to dismiss an appeal lacking the necessary documents. See Md. Rules 8-411, 8-413(a), 8-602(a). Consequently, because a trial transcript is a necessary tool available to other appellants for a price, the state must provide a free copy to an indigent appellant unable to buy one. Britt v. North Carolina, 404 U.S. 226, 227, 92 S.Ct. 431, 433, 30 L.Ed.2d 400 (1971); Griffin, 351 U.S. at 19-20, 76 S.Ct. at 591; accord United States v. Talbert, 706 F.2d 464, 469-470 (4th Cir.1983); United States v. Gaither, 527 F.2d 456, 458 (4th Cir.1975), cert. denied, 425 U.S. 952, 96 S.Ct. 1728, 48 L.Ed.2d 196 (1976).
The Majority argues that Maryland may deny Miller’s right to a transcript since Maryland provides an avenue, even if it is an imperfect one, by which Miller may obtain the transcript. In fact, the Supreme Court has repeatedly found that a state may not deny an indigent defendant his right to appeal by limiting his right to obtain a transcript necessary for his appeal. Eskridge v. Washington State Bd. of Prison Terms and Paroles, 357 U.S. 214, 215-216, 78 S.Ct. 1061, 1062, 2 L.Ed.2d 1269 (1958) (rejecting a state law provision giving a free transcript only when defendant could convince a trial judge that it would be in the interest of justice); Lane v. Brown, 372 U.S. 477, 481, 83 S.Ct. 768, 771, 9 L.Ed.2d 892 (1963) (rejecting statute which provided transcript to an indigent only upon the public defender’s request); Draper v. Washington, 372 U.S. 487, 499, 83 S.Ct. 774, 780-781, 9 L.Ed.2d 899 (1963) (rejecting statute which provided a transcript only if trial judge determined that appeal was not frivolous).
The Majority cites Britt, 404 U.S. at 230, 92 S.Ct. at 435; Ross, 417 U.S. at 615-619, 94 S.Ct. at 2446-2448; United States v. MacCollom, 426 U.S. 317, 328, 96 S.Ct. 2086, 2093, 48 L.Ed.2d 666 (1976), and Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), for the proposition that the state may limit an indigent’s right to a transcript. However, not one of those cases involves a direct appeal as of right, and not one involves a situation where the denial of the transcript completely denied a criminal defendant of his right to appeal his criminal conviction.
In Britt, the Court held that in preparing for a retrial, defendant was not entitled to a transcript of his first trial since defendant “had available an informal alternative which appeared] to be substantially equivalent to a transcript.” 404 U.S. at 230, 92 S.Ct. at 435. Britt was neither completely denied his right to appeal nor significantly prejudiced by the court’s action since he had an informal alternative which was “substantially equivalent.” However, in the instant case, Miller was completely denied his right to appeal. There was no alternative to the transcript which was “substantially equivalent.”
Furthermore, Ross and MacCollom, also cited by the Majority, involved collateral actions or discretionary appeals. They did not involve situations, as the ease here, where the defendant was denied his right of first appeal. Ross, 417 U.S. at 615-619, 94 S.Ct. at 2446-2448 (discretionary appeal to North Carolina Supreme Court); MacCollom, 426 U.S. at 319, 96 S.Ct. at 2088-2089 (collateral relief).
Finally, in Bounds, the Court determined that a prisoner was not constitutionally entitled to access to a law library as long as an alternative system of providing constitutionally required services was provided. 430 U.S. at 830-831, 97 S.Ct. at 1499-1500. However, in Miller’s case, the denial of the transcript completely deprived Miller of his *1147access to a transcript and thereby his right to appeal.2
Not one of the cases cited by the Majority for the proposition that the state may limit Miller’s right to a transcript necessary to his appeal involves a direct appeal provided as of right. However, it is clear that if a state provides for direct appeal, it cannot place a barrier before someone simply because of lack of wealth. The state has done so in the instant ease.
Moreover, the Majority opinion completely ignores a decision of one of our sister circuits holding that the state may not limit the right to a transcript only to appointed counsel or defendants proceeding pro se. Fullan v. Commissioner of Corrections of N.Y., 891 F.2d 1007, 1011 (2d Cir.1989), cert. denied, 496 U.S. 942, 110 S.Ct. 3229, 110 L.Ed.2d 675 (1990). In Fullan, the Second Circuit rejected a statute similar to the Maryland one which provided a free transcript to an indigent person only when the counsel was assigned and denied it when the counsel was retained.3 Id. at 1009-1010.
In fact, Miller’s situation is far more compelling than that in Fullan. In Fullan, the defendant’s family and friends paid for outside counsel for defendant’s appeal. However, the defendant was indigent and could not afford to purchase a transcript. He sought the transcript at state expense. The state court denied his right to obtain the transcript at state expense finding that the contribution from friends and family toward retained counsel indicated that the defendant was not indigent. Id. at 1009. The Second Circuit reversed.
There is no doubt, however, about Miller’s indigency. He has no alternative financial means for obtaining the transcript. His counsel is pro bono, and Maryland concedes that Miller is indigent. Fullan stands for the proposition that the state must provide a transcript to an indigent defendant even if that defendant is represented by counsel not appointed by the state. Since Miller’s situation is far more compelling than Fullan’s, I would apply the Second Circuit’s decision to the instant case and find the Maryland Rule unconstitutional.
Even if the state was allowed to limit Miller’s right to a transcript in some instances, the Maryland Rule at issue violates due process and equal protection because the state’s justifications do not outweigh the individual interest at stake. M.L.B., — U.S. at -, 117 S.Ct. at 566. In assessing the constitutional violations in the context of Griffin and the right to a transcript, the due process and equal protection analyses converge. Id. The Court must look at the “character and intensity of the individual interest at stake, on the one hand, and the state’s justification for its exaction, on the other.” Id. Since in the instant case, the state’s justifications are less than compelling and somewhat arbitrary, and the defendant’s interests are compelling, the statute is unconstitutional. The main factor is one of who shall represent Miller. On his approach, he shall be represented free of charge4 while on the state’s way of proceeding, the expense of the public defender must be borne by the state.
The Maryland Court of Appeals found the requirement that all indigent appellants who wish to receive a transcript must seek services through the public defender’s office justified by the state’s objective of protecting *1148the resources that it has set aside for indigent defendants. Ironically, the state argues that some expense is better than none. To that end, the state has also asserted a desire to encourage competent legal representation for indigent defendants and an administrative goal of easing recovery of costs from those indigent defendants who later acquire funds. While all of these reasons are certainly ones which Miller does not object to, they simply do not apply in the instant case and do not warrant unnecessary infringement upon an indigent’s ability to exercise his constitutional rights.
In circumstances such as those at bar, where an indigent appellant has successfully retained counsel at no cost to himself or the state, the conservation rationale disappears. When there is no need for appointed counsel, the explanation that forcing all indigents to seek public representation will protect state resources is nonsensical. If properly applied, the rule will force all indigents seeking to pursue a direct appeal to become clients of the state public defender’s office — even those capable of securing pro bono legal representation and imposing no financial burden on the state. Due simply to the increase in clients to be served, the state will end up needing more resources to carry out its duties. Casting a wider net by insisting that all indigent appellants proceed through the public defender system can therefore only cost — not save — state resources.
To require further, as the state does, that an indigent must accept all aspects of the government-funded legal assistance that relate to his appeal — even when he only needs or wants one particular service — is absurd. Instead of encouraging outside legal representation with the potential to conserve state assets, the rule only guarantees the expenditure of more government resources. Instead of creating a system whereby the state may only have to pay for production of a transcript or waive a filing fee, but will not bear the far greater cost of accompanying legal services, Maryland’s rule ensures that the state will foot the entire bill. See Fullan, 891 F.2d at 1011 (“[T]he expense here would be greater if the State were required to pay the attorney’s fee as well as the cost of the transcript.”).
In addition, the state’s argument that its countervailing government interest is financial was rejected by the Supreme Court in M.L.B., — U.S. at —, 117 S.Ct. at 567. In M.L.B. the Court rejected the state’s contention that providing a transcript in parental status termination cases placed a financial burden on the state. The Court held “in the tightly circumscribed category ... appeals are few, and not likely to impose an undue burden on the State.” Id.
The financial burden on the State of Maryland from the ease at bar is even less burdensome than that in M.L.B. In the instant ease, Miller is actually saving the state money by not using the public defender. The only cost to the state is the cost of the transcript, which even the state concedes it would have to pay if Miller accepted representation by the public defender. Therefore, providing a transcript to an indigent defendant who is represented pro bono publico does not place an undue burden upon the state.
The state’s related argument that it seeks to ensure reimbursement of its expenditures is weak. It is illogical to assume that any additional funds that the state might recover by forcing all indigents seeking to appeal under the auspices of the public defender would outweigh or even equal the increased amount it will end up spending in order to provide full legal representation for its extra clients. Again, with such an all-or-nothing rule, the state can only lose money.
Moreover, the state argues that by requiring pro bono attorneys to apply to the public defender’s office or by requiring defendants to use public defenders, the statute guarantees that indigent defendants will receive competent legal representation. Again, the state’s motivation of providing competent legal representation for indigents is worthy, but its related actions here rest on an unproven, if not faulty, supposition which renders them arbitrary. The state presumes that an appeal handled outside the public defender’s supervision is more likely to be frivolous or mishandled. That assertion is *1149unsubstantiated by the record. Therefore, it cannot serve as a valid reason for interfering with the constitutional rights of Miller or any other indigent not receiving public defender representation. Moreover, the desire to curb frivolous appeals cannot justify any prerequisite to a direct appeal unless it is uniformly applied to indigents and non-indigents alike. See Rinaldi v. Yeager, 384 U.S. 305, 310-311, 86 S.Ct. 1497, 1500-1501, 16 L.Ed.2d 577 (1966); Draper, 372 U.S. at 499, 83 S.Ct. at 780-781; Douglas v. California, 372 U.S. 353, 357-358, 83 S.Ct. 814, 816-817, 9 L.Ed.2d 811 (1963). “When an indigent is forced to run [the] gauntlet of a preliminary showing of merit, the right to appeal does not comport with fair procedure.” Douglas, 372 U.S. at 357, 83 S.Ct. at 816.
Finally, there are many valid reasons for promoting, not punishing, pro bono representation on appeal. One would expect all states to encourage poor defendants to accept offers of free legal representation from competent attorneys outside the public defender’s office. Clearly, allowing pro bono representation can only benefit Maryland’s overburdened and under-funded legal services system by supplementing its resources at no extra cost. In addition, it would emphasize the state’s need and desire for volunteer legal representation. See Mallard v. United States Dist. Court for Southern Dist. of Iowa, 490 U.S. 296, 310, 109 S.Ct. 1814, 1823, 104 L.Ed.2d 318 (1989) (“[I]n a time when the need for legal services among the poor is growing and public funding for such services has not kept pace, lawyers’ ethical obligation to volunteer then-time and skills pro bono publico is manifest.”). The way to accomplish these goals is to accommodate, not to penalize, pro bono legal representation.
B
Miller’s next contention is that the Maryland statute violates his Sixth Amendment right to counsel of choice. A criminal defendant has a constitutional right to counsel of choice.5 Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 1697, 100 L.Ed.2d 140 (1988); United States v. Corporan-Cuevas, 35 F.3d 953, 956 (4th Cir.1994). Grounded primarily in the Sixth Amendment right to effective assistance of counsel, the right protects the general freedom “to select and be represented by one’s preferred attorney.” Wheat, 486 U.S. at 159, 108 S.Ct. at 1697. While that right is not absolute, the Supreme Court has explained that there is always a “presumption in favor of [a defendant’s] counsel of choice.” Id. at 164, 108 S.Ct. at 1700.
The state contends that the right to counsel of choice neither continues on appeal nor applies to indigents. But that is not right. Because the assistance of an attorney is one of the “raw materials integral to the building of an effective defense,” Ake, 470 U.S. at 77, 105 S.Ct. at 1093, the Supreme Court has repeatedly affirmed that the Fourteenth Amendment’s promise of meaningful access entitles an indigent to the effective assistance of counsel on appeal. McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 436, 108 S.Ct. 1895, 1900-1901, 100 L.Ed.2d 440 (1988). We have recognized that the right to counsel of choice “is premised on respect for the individual,” and characterized it as “an essential element” of the right to counsel. United States v. Mullen, 32 F.3d 891, 895 (4th Cir.1994) (citation omitted). Because I discern no reason for withholding that important component of the fundamental right to counsel on appeal, I would decline to do so *1150here.6
Since “a defendant may not insist on representation by an attorney he cannot afford or who for other reasons declines to represent the defendant,” Wheat, 486 U.S. at 159, 108 S.Ct. at 1697, the right to counsel of choice does not extend to an indigent receiving public representation, but does apply to an indigent able to secure pro bono counsel. Caplin & Drysdale Chartered v. United States, 491 U.S. 617, 624-25, 109 S.Ct. at 2651, 2651-2652, 105 L.Ed.2d 528 (1989). The state has conceded that Miller needed a transcript in order to receive adequate appellate review and that, as an indigent, he qualified for state-funded services. The state has further acknowledged that Miller was denied a free transcript solely because he received legal representation outside the auspices of the public defender’s office.
By interpreting Rule l-325(b) to require that he apply for public defender services in order to receive a free transcript, the state denied Miller his counsel of choice, treated him differently solely because of his indigen-cy,7 and ultimately deprived him of “adequate and effective appellate review.” Miller was presented with a Hobson’s choice whereby, in order to exercise his constitutional right to a transcript necessary for his appeal, he must forfeit his right to the attorney of his choice for no compelling reason.
Indeed, the state’s interpretation of Rule l-325(b) as mandating application to the public defender’s office forced Miller to choose between his secured counsel and the necessary trial record. Although he had an attorney at no cost to the state, Miller was told he must give up that attorney in order to receive a free transcript. When he insisted on retaining his pro bono counsel, he was denied the transcript. The state court then dismissed his appeal due to the missing transcript. It is thus abundantly clear that, in Maryland, an indigent seeking a tran script for appeal has only one route available, and that route — seeking public defender representation — requires forfeiting another constitutional right. Forcing a criminal defendant to surrender one constitutional right “in order to assert another” is “intolerable.” Simmons v. United States, 390 U.S. 377, 394, 88 S.Ct. 967, 976, 19 L.Ed.2d 1247 (1968).8
We previously have found it impermissible to compel a civil litigant to forego some constitutional rights in order to assert others. See Tomai-Minogue v. State Farm Mut. Auto. Ins. Co., 770 F.2d 1228, 1232 (4th Cir.1985). It is even more egregious to subject a criminal defendant to such a choice.9 I agree with the Third Circuit that
[a] defendant in a criminal proceeding is entitled to certain rights and protections which derive from a variety of sources. He is entitled to all of them; he cannot be forced to barter one for another. When the exercise of one right is made contingent upon the forbearance of another, both rights are corrupted.
United States ex rel. Wilcox v. Johnson, 555 F.2d 115, 120 (3rd Cir.1977) (finding that conditioning the exercise of the right to testify upon waiver of the right to counsel is an impermissible infringement upon both rights).
Forcing an indigent to choose between two rights guaranteed by the Constitution results in the denial of one right or the other. Imposition of that dilemma upon Miller thus *1151affronts our notions of basic fairness. But even if it did not, the state must provide a legitimate reason for burdening Miller’s ability to exercise his constitutional rights. Conditions imposed on an indigent’s ability to obtain a free transcript cannot be arbitrary and unreasonable, but must “comport with fair procedure.” MacCollom, 426 U.S. at 324, 96 S.Ct. at 2091 (quoting Douglas, 372 U.S. at 357, 365, 83 S.Ct. at 816, 820-821); see also Lane, 372 U.S. at 485, 83 S.Ct. at 774 (voiding state law that arbitrarily granted transcripts to indigents only at the public defender’s request). The state may deny the right only “to serve some compelling purpose,” United States v. D’Amore, 56 F.3d 1202, 1204 (9th Cir.1995) (internal quotations omitted), and at the very least, must provide a “strong governmental reason” for burdening an individual’s ability to exercise the right, Caplin & Drysdale, 491 U.S. at 631, 109 S.Ct. at 2655; see also United States v. Monsanto, 491 U.S. 600, 616, 109 S.Ct. 2657, 2666-2667, 105 L.Ed.2d 512 (1989) (testing pretrial restraining order for arbitrary interference with defendant’s opportunity to retain counsel).
As discussed in the previous section, Maryland’s questionable reasons for denying Miller a transcript simply do not outweigh the heavy burdens the Maryland Rule places on Miller’s constitutional rights.
IV
The State of Maryland’s refusal to supply Miller with a transcript to perfect his appeal, though generally making them available to other indigent defendants, violates Miller’s constitutional rights. Maryland Rule 1-325(b) requires an indigent criminal defendant with legal representation to forfeit his counsel of choice in order to obtain a transcript needed for appeal. Thus, for no compelling reason, an indigent seeking to appeal his conviction is forced to choose between his constitutional rights in a way that a wealthier defendant is not. That outcome cannot be judged consistent with the guarantee of meaningful access to justice. The Maryland Rule is unconstitutional and Miller is entitled to a transcript and an opportunity to appeal his conviction and sentence.
The Supreme Court recently stated in M.L.B. that “[i]n States providing criminal appeals ... an indigent’s access to appeal, through a transcript of relevant trial proceedings, is secure under our precedent.” Since I believe that the court’s opinion in the case at bar places the very security of a defendant’s right to a transcript at risk, I respectfully dissent.
K.K. HALL and MICHAEL, JJ., join in this dissent.
. Public defenders are compensated by the state and share facilities; as such they resemble a law firm. Therefore, public defenders, just as two partners or associates of a law firm cannot represent antagonistic positions.
.In the Court noted that
the Griffin requirement is not rigid. Alternative methods of reporting trial proceedings ... are permissible if they place before the appellate court an equivalent report of the events at trial from which the appellant's contentions arise. Moreover, ... an indigent defendant is entitled only to those parts of the trial record that are germane to consideration of the appeal.
- U.S. at - n.5, 117 S.Ct. at 561-562 n.5. Therefore, Maryland could have limited a defendant’s right to the entire transcript, but it clearly cannot limit his right to those parts of the record which are necessary for his appeal. It should be noted that Miller has only sought those parts of the transcript which are relevant to his direct appeal.
. The New York Rule provided that "a typewritten transcript of such minutes [shall] be furnished without charge to the appellant's assigned counsel or, if appellant prosecutes the appeal pro se, to appellant.” McKinney’s 1989 New York Rule of Court § 671.3(b)(3).
. Miller’s counsel would appear pro bono publi-co.
. The State advances the proposition that an indigent has no right to counsel of his own choosing. In fact, every circuit court and the U.S. Supreme Court has recognized that a criminal defendant has a qualified right to counsel of choice. See, e.g., United States v. Inman, 483 F.2d 738, 739-40 (4th Cir.1973) ("The Sixth Amendment right to counsel includes ... the right of any accused, if he can provide counsel for himself by his own resources or through the aid of his family or friends, to be represented by an attorney of his own choosing.”), cert. denied, 416 U.S. 988, 94 S.Ct. 2394, 40 L.Ed.2d 766 (1974). The state further argues that there is no constitutional right to self-representation on appeal, and thus no right to counsel of choice. We find that argument weak as well, for as the Third Circuit has observed, the Supreme Court notes in Wheat that the right to counsel of choice is not a species of the right to self-representation. See Fuller v. Diesslin, 868 F.2d 604, 608 (3rd Cir.) (citing Wheat, 486 U.S. at 159 n. 3, 108 S.Ct. at 1697 n. 3), cert. denied, 493 U.S. 873, 110 S.Ct. 203, 107 L.Ed.2d 156 (1989).
. Neither the Supreme Court nor any of our sister circuits appears to have held otherwise. See, e.g., United States v. Friedman, 849 F.2d 1488, 1490 n. 5 (D.C.Cir.1988) (assuming, without deciding, that the right to counsel of choice applies to the first appeal as of right), cert. denied, 498 U.S. 1110, 111 S.Ct. 1020, 112 L.Ed.2d 1101 (1991).
. An affluent defendant would not have to accept representation by the public defender.
. This is especially true, in cases such as the case at bar, where there is a conflict of interest between the public defender and the defendant. In such cases, the public defender may not be an acceptable choice for the defendant.
. The circumstances here appear especially pernicious because Miller has offered a particularly compelling reason for refusing public defender representation. The fact that the state has procedures in place for assigning to panel attorneys cases in which the public defender’s office has a conflict of interest does not justify forcing that option upon an indigent who has available the free services of another attorney. The lawyer’s integrity and ability in the instant case have been in no way disparaged.