dissenting.
The majority’s decision to dismiss Holle-man’s current habeas petition as an abuse of the writ rests on two contradictory conclusions. On the one hand, the majority holds that Judge Clement, who appointed attorney Frank to represent Holleman and who presided over Holleman’s trial, had no obligation to investigate the possibility that Frank had a conflict of interest. The simple fact that Frank previously had secured the dismissal of charges against Holle-man’s co-defendant was not enough, my brothers reason, to alert the judge to the potential conflict. Yet, the majority goes on to conclude that Holleman, who if anything knew less about the relevant facts than Judge Clement, did have a duty to look into his attorney’s potential conflict, and that he effectively forfeited his claim by not discovering the pertinent evidence by 1981, when he filed his first habeas petition. On the facts, both of these con-*749elusions cannot be true; one proves the other wrong.
Central to my brothers’ reasoning is the notion that because nothing prevented Holleman from asking his counsel about the conflict prior to 1981, he should have posed that question to Frank notwithstanding the absence of facts placing him on notice of the conflict. The law could not be more clear, however, that it was Frank’s affirmative obligation to disclose the conflict without Holleman or anyone else having to ask him about it. Frank breached that obligation by not speaking up when the conflict first materialized at Holleman’s trial, and he compounded the breach by restraining his advocacy on behalf of Holleman rather than jeopardizing the interests of his former client, Love. Once he had deprived Holleman of the candor and undivided loyalty to which he was entitled, Frank’s interests diverged sharply from Holleman’s: Frank could not have disclosed the conflict to Holleman without exposing his own profound ethical transgressions; and yet, so far as the record reveals, Frank was the only person who knew of the conflict and the impact it had on his representation of Holleman. In realistic terms, Frank’s silence impeded Holleman’s ability to recognize and pursue the conflict claim. And this impediment must be regarded as one that was external to Holleman’s defense, for in remaining silent about the conflict, Frank was in no way acting on Holleman’s behalf or in his interest; he was protecting himself.
Only after a fourteen-year silence, a felony conviction, and the surrender of his law license did Frank at last confess the conflict that burdened him at Holleman’s trial. Yet, my brothers blithely assume that had he only been asked about the conflict in 1980 or 1981, Frank surely would have disclosed it to Holleman. Given that Frank had already breached his obligation to disclose the conflict sua sponte, not to mention the additional fact that by 1980, Frank was engaged in a pattern of bribery that would ultimately result in his conviction for obstruction of justice (among other crimes), I find that assumption astonishing.
A sensible reading of the record makes plain that Holleman had ample cause for not discovering his attorney’s actual conflict before he filed his first habeas petition in 1981. Holleman therefore did not abuse the writ by pursuing his conflict of interest claim in a later petition.
1.
My brothers are, of course, on solid ground in concluding that Judge Clement had no obligation, when he first appointed Frank to represent Holleman, to question the attorney about a possible conflict of interest. The Supreme Court has made clear that multiple, or in this ease serial, representation of clients with potentially divergent interests does not alone require the court to make a conflicts inquiry. Cuyler v. Sullivan, 446 U.S. 335, 346-47, 100 S.Ct. 1708, 1717, 64 L.Ed.2d 333 (1980); see also Mickens v. Taylor, - U.S. -, -, 122 S.Ct. 1237, 1245-46, 152 L.Ed.2d 291 (2002). Although Judge Clement necessarily was aware that Frank had succeeded in having the charges against Holleman’s co-defendant, Frank Love, dismissed without prejudice, the judge (so far as the record reveals) had no way of anticipating that a zealous defense of Holleman might be adverse to Love’s interests. My colleagues rightly disregard the fact that Judge Clement did think to ask Frank about the possibility of a conflict. Ante at 743. Because the facts known to the judge at that time did not obligate him to make the inquiry, the judge’s question was, constitutionally speaking, gratuitous: “The fact that Judge Clement did inquire does not *750mean that [he] knew of a potential conflict of interest.” Ante at 743.
I am less certain that Judge Clement remained free of any inquisitorial burden once Love’s alibi became an issue at Holle-man’s trial. Frank had, of course, assured the judge when he was appointed that he saw no conflict; and, as the district court observed, the judge was entitled to rely on that assurance “without more red lights discernible to the court.” Holleman v. Miller, 101 F.Supp.2d 700, 704 (N.D.Ind.2000); see United States v. Fish, 34 F.3d 488, 493 (7th Cir.1994). However, additional warning lights did illuminate in the course of the trial. Although the charges against Love had been dismissed, his role in the offense turned out to be an important issue in Holleman’s prosecution. In his post-arrest statements, Holleman had identified Love as the person who shot and killed Opfer. Trial Record (“TR”) 140A (State’s Ex. 20), 140B (State’s Ex. 21), 143, 144, 151, 153. In retrospect, it appears undisputed that Holleman was correct in this assertion. Although, so far as the record reveals, the State never attempted to reinstate the charges against Love, even the Indiana Supreme Court’s opinion affirming Holleman’s conviction identifies Love as the shooter. Holleman v. Indiana, 272 Ind. 534, 400 N.E.2d 123, 124-25 (1980); see 28 U.S.C. § 2254(e)(1) (“a determination of a factual issue made by a State court shall be presumed to be correct”). But at Holleman’s trial, this point was very much in dispute. Consistent with his post-arrest statements, Holle-man’s theory of defense was that he was a hapless, drug-impaired bystander to a chaotic series of events that culminated in Opfer’s death. See, e.g., PosMdonviction Record (“PR”) 317-18 (defense closing argument). In an effort to discredit that defense, the State sought to prove that it was Holleman, not Love, who shot Opfer. See PR 296 (State’s opening statement). Toward that end, the State not only elicited evidence that the charges against Love had been dismissed, TR 170-71, but summoned Mary Schaar to establish Love’s alibi, Tr. 171-79.1 By this juncture, it would have been plain to the judge that this was not a case of mere successive representation of co-defendants. Judge Clement knew from the outset that the charges against Love had been dismissed without prejudice, for it was he who had granted the State’s nolle prosequi motion. Once Love’s role in the offense was raised at Holleman’s trial, it should have been apparent to the judge that Frank was in an untenable position. Frank could not further his current client’s cause without sacrificing his former client’s interests; any effort that Frank might make to implicate Love as the shooter necessarily would jeopardize the dismissal of the charges against Love. Having presided over Love’s case as well as Holleman’s, Judge Clement needed no special insight to discern the conflict. That Frank remained silent when the State elicited testimony regarding the dismissal of the charges against *751Love, and that he chose not to cross-examine Schaar about Love’s alibi, confirmed the need to re-examine Frank about the conflict.
My colleagues acknowledge the possibility that Judge Clement, even if he was not obliged to investigate the possibility of a conflict at the time he appointed Frank, might have become obliged to do so later. Ante at 744. However, they sustain as not clearly erroneous the district court’s conclusion that the judge never incurred such an obligation, even when Love’s role in the offense emerged as a key issue at Holle-man’s trial. Id. Yet, the district court’s finding in this regard is conclusory: The court simply stated that “Mr. Frank may have been obliged to inform the court of his ethical quandary once Ms. Schaar appeared on the witness stand, but nothing required the court to conduct an inquiry then, earlier, or later.” 101 F.Supp.2d at 705. In the run-up to that conclusion, the court noted that when Judge Clement had appointed Frank to represent Holleman, he knew nothing that would have alerted him to a potential conflict beyond the fact that Frank had previously represented Love and that the charges against Love had been dismissed. Id. at 704. At that point in time, the court emphasized, Frank himself could not have anticipated that the State would call Schaar to testify at Holle-man’s trial. Id. But nowhere in its analysis did the court consider the changed landscape that Judge Clement confronted once the trial was underway and the conflict between the State’s theory of the case (that Holleman was the shooter) and Holleman’s position (that Love was the shooter) became manifest. See id. at 704-OS. I must therefore question the decision to defer to that aspect of the district court’s decision.
2.
Let us suppose however, that indeed the facts known to Judge Clement never sufficed to put him on notice of a potential conflict of interest. That conclusion, it seems to me, supplies Holleman with cause for his failure to pursue his claim of actual conflict sooner than he did. On the facts, any other conclusion makes no sense.
Recall that Holleman lacked the evidence necessary to establish an actual conflict until 1991, when Holleman’s post-conviction counsel finally tracked Frank down for the second time and Frank, reluctantly it seems, at last acknowledged the conflict. See ante at 745. No one is arguing that Holleman knew about this conflict in 1981, when he filed his first habeas petition, and that he simply chose to sit on the evidence. The argument that Holleman abused the writ is premised instead on the theory that the pertinent information was available to Holleman prior to 1981, such that he could (and should) have raised the conflict claim in his first habeas petition. I think that the facts supply us with great reason to doubt that the evidence necessary to establish Frank’s divided loyalties really was available to Holleman prior to 1981, and I shall have more to say about that in a moment. But first I think it necessary to question whether Holleman was under any obligation to go in search of that evidence prior to 1981. In my view, he was not.
McCleskey v. Zant requires only that a habeas petitioner exercise due diligence in the identification and pursuit of his claims. 499 U.S. 467, 498, 111 S.Ct. 1454, 1472, 113 L.Ed.2d 517 (1991). When he files his initial federal habeas petition, the petitioner must present not only claims of which he is actually aware, but also those as to which he is on notice and therefore could have developed through diligent investigation. Ibid. If he fails in his first petition to pursue a particular claim, the legal and factual basis for which was reasonably available to him at that time, the claim will be foreclosed to him later under the abuse-*752of-the-writ doctrine, absent proof that a fundamental miscarriage of justice would result. Id. at 493-94, 497-98, 111 S.Ct. at 1470, 1472. McCleskey does not, however, require the petitioner to divine potential claims that he neither knows about nor has reason to know about. See, e.g., Amadeo v. Zant, 486 U.S. 214, 222, 108 S.Ct. 1771, 1777, 100 L.Ed.2d 249 (1988), cited in McCleskey, 499 U.S. at 498, 111 S.Ct. at 1472. If the claim was “reasonably unknown” to the petitioner when he filed his first habeas petition, Reed v. Ross, 468 U.S. 1, 14, 104 S.Ct. 2901, 2909, 82 L.Ed.2d 1 (1984), he remains free to pursue the claim in a later habeas petition. Thus, we can say that Holleman abused the writ by pursuing his claim of actual conflict in a second habeas petition only if the facts reveal that he was on notice that his attorney may have been burdened by such a conflict at the time he filed his first petition. See McCleskey, 499 U.S. at 498-500, 111 S.Ct. at 1472-73.
Here is where the majority’s rationale sustaining Judge Clement’s own failure to investigate the possibility of a conflict comes into play. My brothers’ conclusion that the judge had no occasion to ask Frank about the conflict demonstrates why Holleman was not on notice of the conflict claim. So far as the record reveals, Holle-man’s knowledge of the circumstances underlying the conflict was no greater than Judge Clement’s. See 101 F.Supp.2d at 705. The facts known to the judge revealed only that Frank had previously represented Holleman’s co-defendant and that the charges against Love had been dismissed. If those facts were not enough to obligate Judge Clement to look into the possibility of a conflict of interest on Frank’s part, then there is no reason to think that Holleman, a non-lawyer, had reason to question his lawyer’s loyalties either. Indeed, the trial record suggested to neither Holleman’s appellate lawyer nor his post-conviction counsel that Holleman had a basis on which to assert a claim for conflict of interest. PR 269; Deposition of Jeffery A. Evans (“Evans Dep.”) 7; see ante at 745.
To say that Frank’s successive representation of Love and Holleman was by itself enough to alert Holleman to the possibility of a conflict and to require him to investigate that claim {ante at 746-47) is to hold the unwitting client to a higher standard of inquiry than the very judge who created the conflict of interest by appointing the same attorney to represent two co-defendants. No justification supports the double standard in this case.2 At most Holle-man’s knowledge was on par with the judge’s, and in realistic terms, Holleman knew significantly less. See 101 F.Supp.2d at 705. Holleman did not have the firsthand knowledge of the disposition of Love’s case that Judge Clement did by *753virtue of having been the presiding judge. Holleman did not even know that the judge had thought to ask Frank about the possibility of a conflict, since that discussion took place in an unrelated proceeding outside of Holleman’s presence. Ante at 743. Moreover, although we have said that Judge Clement was not required to ask that question, ante at 743, we have also said that the judge was entitled to rely on Frank’s assurance that he saw no conflict, ante at 744. It is the attorney’s duty to speak up when a conflict becomes apparent, the Supreme Court and this court have emphasized, Cuyler, 446 U.S. at 346, 100 S.Ct. at 1717; Holloway v. Arkansas, 435 U.S. 475, 485-86, 98 S.Ct. 1173, 1179, 55 L.Ed.2d 426 (1978); Fish, 34 F.3d at 493, so unless and until Frank voiced a concern, the judge was entitled to assume all was well. Ante at 743-44. Sauce for the goose is sauce for the gander. In the face of Frank’s silence about a conflict, Holleman too ought to have been entitled to assume that no conflict existed.
My colleagues posit that Holleman would have had cause for not pursuing the conflict of interest if, like Judge Clement, Holleman had asked Frank about a conflict and Frank had given him the same reassuring answer that he gave the judge. Ante at 742, 745-46, 747. This implies that Holleman could have justifiably relied on a false representation from Frank about the conflict, but not on Frank’s silence. Here again my colleagues fail to appreciate the significance of the attorney’s obligation to speak when confronted with a conflict. An omission is treated as the equivalent of an affirmative misrepresentation when an individual knows a material fact but fails to disclose it to another person to whom he owes a fiduciary duty. See, e.g., S.E.C. v. Zandford, — U.S. -, -, 122 S.Ct. 1899, 1905, 153 L.Ed.2d 1 (2002). Indubitably, the relationship between an attorney and his client is fiduciary in nature. E.g., Sanders v. Townsend, 582 N.E.2d 355, 358 (Ind.1991).
There are few of the business relations of life involving a higher trust and confidence than that of attorney and client, or, generally speaking, none more honorably and faithfully discharged; few more anxiously guarded by the law, or governed by sterner principles of morality and justice; and it is the duty of the court to administer them in a corresponding spirit, and to be watchful and industrious, to see that confidence thus reposed shall not be used to the detriment or prejudice of the rights of the party best owing it.
It is a basic principle of professional conduct that an attorney must faithfully, honestly, and consistently represent the interest and protect the rights of his client, and that he is bound to discharge his duties to his client with the strictest fidelity, to observe the highest and utmost good faith, and to inform his client promptly of any known information important to him.
Bell v. Clark, 653 N.E.2d 483, 489-90 (Ind.App.1995), aff'd and adopted, 670 N.E.2d 1290 (Ind.1996), quoting Blasche v. Himelick, 140 Ind.App. 255, 210 N.E.2d 378, 381 (1965). In view of the fiduciary character of this relationship, it is not the client’s duty to ask about conflicts of interest, it is his attorney’s obligation to disclose them on his own initiative. See Cuyler, 446 U.S. at 346, 100 S.Ct. at 1717; Holloway, 435 U.S. at 485-86, 98 S.Ct. at 1179; United States v. Mandell, 525 F.2d 671, 677 (7th Cir.) (per curiam), cert. denied, 423 U.S. 1049, 96 S.Ct. 774, 46 L.Ed.2d 637 (1976); see also, e.g., Campbell v. Rice, 265 F.3d 878, 885 n. 2 (9th Cir.2001), abrogated on other grounds by Mickens v. Taylor, — U.S. -, - n. 3, 122 S.Ct. 1237, 1243 n. 3, 152 L.Ed.2d 291 (2002); In re Young, *75491 F.3d 1367, 1375 (10th Cir.1996); I.B.M. Corp. v. Levin, 579 F.2d 271, 281-82 (3d Cir.1978); Holland v. Henderson, 460 F.2d 978, 981 (5th Cir.1972); Felix v. Balkin, 49 F.Supp.2d 260, 271-72 (S.D.N.Y.1999); Indiana Rules of Professional Conduct 1.4(b); 1.7(b)(2); 1.9(a); 1.16(a)(1). As Justice Story observed more than 175 years ago:
An attorney is bound to disclose to his client every adverse retainer, and even every prior retainer, which may affect the discretion of the latter. No man can be supposed to be indifferent to the knowledge of facts, which work directly on his interests, or bear on the freedom of his choice of counsel. When a client employs an attorney, he has a right to presume, if the latter be silent on the point, that he has no engagements, which interfere, in any degree, with his exclusive devotion to the cause confided to him; that he has no interest, which may betray his judgment, or endanger his fidelity.
Williams v. Reed, 29 F. Cas. 1386, 1390 (C.C.D.Maine 1824) (No. 17,733) (emphasis mine). Thus, Holleman was every bit as entitled to rely upon Frank’s silence as a signal that he labored under no conflict as Judge Clement was to rely on Frank’s words to that effect.
For purposes of the cause analysis, Frank’s silence posed an external impediment to Holleman’s ability to recognize and pursue the conflict claim in habeas proceedings. See McCleskey, 499 U.S. at 497-98, 111 S.Ct. at 1472, citing Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986); Coleman v. Thompson, 501 U.S. 722, 753, 111 S.Ct. 2546, 2566, 115 L.Ed.2d 640 (1991); see also, e.g., Amadeo, 486 U.S. at 222, 108 S.Ct. at 1777; Crivens v. Roth, 172 F.3d 991, 995-96 (7th Cir.1999); Jennings v. Purkett, 7 F.3d 779, 782 (8th Cir.1993) (divided loyalties of petitioner’s counsel can supply cause for procedural default); Jamison v. Lockhart, 975 F.2d 1377, 1380 (8th Cir.1992) (same). As the Supreme Court has recognized, it is the attorney— not his client or the court — who is in the best position to recognize conflicts of interest. Mickens, — U.S. at -, 122 S.Ct. at 1241; Holloway, 435 U.S. at 485, 98 S.Ct. at 1179. Indeed, so far as the record in this case reveals, no one but Frank actually knew about the conflict that materialized in the course of Holleman’s trial until 1991, when Frank finally confessed the conflict to Holleman’s post-conviction counsel. By not disclosing the conflict when it arose, Frank breached his ethical obligation to Holleman.3 To make matters worse, Frank then abandoned his advocacy on behalf of Holleman. As Frank would later acknowledge, when Mary Schaar took the stand to establish Love’s alibi and in this way bolster the State’s theory that Holleman was the triggerman in Opfer’s murder, Frank was presented with an untenable dilemma: Jeopardize the interests of his former client, Love, by attempting to discredit Schaar’s testimony, or jeopardize the interests of his current client, Holle-man, by remaining silent. See PR 199— 200. Frank chose the latter course. Sacrificing one client for another in this way is *755an especially “pernicious” ethical breach. United States v. Marshall, 488 F.2d 1169, 1194 (9th Cir.1973), quoting Holland v. Henderson, 460 F.2d at 981. At this point, Frank’s interests were adverse to Holle-man’s: Holleman had an obvious right and need to know that his attorney’s conflict of interest had caused him to censure his own advocacy; but for Frank to disclose the conflict belatedly would be to acknowledge that he had committed profound ethical violations. Not surprisingly, Frank chose to remain silent. He hid the evidence that would have enabled Holleman to assert the conflict-of-interest claim, just as surely as an errant prosecutor might hide his suppression of exculpatory evidence or a trial judge might hide his bribe-taking and so impede a petitioner from pursuing those constitutional violations. Against that backdrop, Holleman cannot reasonably be expected to have pursued the conflict-of-interest claim in his 1981 habeas petition. Cf. Amadeo, 486 U.S. at 224, 108 S.Ct. at 1777-78 (sustaining finding that habeas petitioner had cause for failing to make state-court challenge to composition of juries that indicted, convicted, and sentenced petitioner to death, where State had concealed racial manipulation of jury pools and memorandum revealing such manipulation was discovered by chance after time for pursuing jury claim in state court had already passed); Crivens, 172 F.3d at 995-96 (finding that habeas petitioner had not procedurally defaulted Brady claim notwithstanding his failure to raise that claim in state court, given that State had not disclosed information which formed basis for claim until after he had filed his federal habeas petition); Parkus v. Delo, 33 F.3d 933, 938 (8th Cir.1994) (finding cause for procedural default of claim relating to petitioner’s mental health, where petitioner’s counsel had relied on false representation of state official that petitioner’s juvenile mental health records had been destroyed).4
Ah, the court points out, but Holleman himself voiced suspicions about his lawyer’s divided loyalties when he flagged the matter for his appellate and post-conviction lawyers; and that suspicion, they believe, obligated him to inquire further. Ante at 744-45, 746-47. True enough, Holleman did think to mention Frank’s representation of Love and himself to counsel, but so far as the record reveals, nothing more than a naked hunch prompted him to do so. There is absolutely no evidence that Holleman had any inkling that an actual conflict of interest burdened Frank’s representation of him. Recall that it occurred to Judge Clement himself to ask Frank whether he thought that the dual representation presented any conflict, yet we have said that the judge’s question does not signal that he was on notice of the conflict and thus under an obligation to investigate it. Ante at 743. Holleman’s own subjective concerns, unsupported by facts sufficient to have placed him on reasonable notice of a conflict, are similarly beside the point.5
*7563.
But even if we assume that Holleman did have an obligation to look into the conflict before he filed his first habeas petition in 1981, he can be faulted for the failure to present the conflict of interest claim in that petition only if the evidence necessary to support the claim was reasonably discoverable at that time. See McCleskey, 499 U.S. at 497-98, 111 S.Ct. at 1472. Based on the fact that Frank ultimately confessed the conflict when questioned in 1991, the district court and my colleagues discern no reason why he would not have acknowledged the conflict prior to 1981. Ante at 747-48 & n. 3; 101 F.Supp.2d at 705-06. In their view, Holle-man is to blame simply for failing to ask Frank about the conflict sooner than he did. This notion strikes me as wrong for a number of reasons.
First, Frank had no right to wait for the question. He had an unequivocal duty to speak up when the conflict of interest materialized during Holleman’s trial. Yet rather than disclosing the conflict sua sponte, he chose to remain silent and let Holleman’s interests suffer. Having already failed to disclose the conflict when ethics required it of him, it strikes me as implausible to suppose that he would have suddenly become candid if only his client had thought to ask him whether he had experienced a conflict.6
Second, in view of Frank’s silence in the first instance, belated disclosure would have come at a price. After all, Frank had not only failed to disclose the conflict but had chosen to give Holleman’s interests a back seat to Love’s. These were grave ethical violations which, if disclosed, would *757have placed Frank’s law license in jeopardy. We have no reason to think that Frank would have fallen on his sword in 1980 or 1981 to help Holleman win relief in habeas corpus.
Third, Frank’s failure to disclose the conflict that burdened him at Holleman’s trial was by no means an isolated breach of ethics on his part. In 1985, a 23-count indictment charged Frank with scheming to obtain favorable outcomes for clients who were charged with driving under the influence of alcohol by bribing judges, court personnel, and other public officials to destroy records, to divert notices that the Indiana Bureau of Motor vehicles should have received, and to commit a variety of other dishonest acts. See Frank v. United States, 914 F.2d 828 (7th Cir.1990). The final count of the indictment also charged Frank with obstructing justice based on his attempt to interfere with a grand jury investigation. Apparently Frank had tried to persuade one of his former DUI clients to give false information to the grand jury that was investigating Frank. See id. at 834 & n. 11. Frank ultimately pleaded guilty to the obstruction charge along with one count of mail fraud, and he resigned from the practice of law. These charges are relevant in two respects. First, the indictment indicated that Frank had been engaged in the charged scheme since at least January of 1980. Id. at 830 n. 5. Generally speaking, criminals do not willingly bring themselves to the attention of the authorities. For that reason, it strikes me as unlikely that Frank would have divulged his ethical breach in 1980 or 1981, as Holleman was preparing his first habeas petition, since to do so might well have triggered an inquiry by the Indiana bar. Second, Frank’s admitted effort to obstruct justice suggests that his first inclination, when confronted with an investigation into his own conduct, was not to be forthcoming but rather to lie about it and to solicit others to do so.
Years later, Frank finally did acknowledge his conflict of interest. By that time, he was a convicted felon whose legal career was at an end; he had absolutely nothing to lose. But even then, Frank’s admission was a reluctant one. When Holleman’s attorney first interviewed him in 1988, all that Frank could focus on was his successful representation of Love. See Evans Dep. 20-27. Not until a second meeting in 1991 did Frank finally admit that his divided loyalties had kept him from cross-examining Schaar. Id. at 42-48. Frank’s hesitation to acknowledge the conflict even at that late date demonstrates in yet one more way why the evidence necessary to establish Holleman’s claim was not reasonably available to him at the time of his first habeas petition.
4.
This record lends absolutely no support to the conclusion that Holleman abused the writ of habeas corpus. Only through the extraordinary efforts of Holleman’s post-conviction counsel, years after Holleman filed his first habeas petition, did Frank’s conflict of interest at last come to light. To say that Holleman ought to have investigated the claim sooner is to say that the mere fact of Frank’s serial representation of Love and Holleman was enough to alert Holleman to the potential conflict of interest, but not Judge Clement. To say that Frank would have disclosed the conflict prior to 1981, if only he had been asked, is to ignore (along with Frank’s history of ethical breaches) the fact that it was Frank’s obligation to volunteer that he was conflicted, not the .obligation of anyone else to ask him about it. Today’s holding is *758devoid of common sense and the result is contrary to justice.
I respectfully dissent.
. This evidence laid the foundation for a theme that the State pursued vigorously in its closing arguments — that as the likely "trigger-man,” Holleman was the person most culpable (if not solely responsible) for the robbery and killing of Robin Opfer (as well as Scott Moore), and that Holleman's post-arrest statements were incredible to the extent they attempted to pin the blame for Opfer's murder on Love and the other participants in the robbery. See, e.g., PR 302 ("[Holleman] was the principle [sic], he pulled the trigger, and he worked alone.”); 308 ("I submit Frank Love was nowhere near that apartment on the 5th day of October, '76. He is now dismissed out of this case.”); 315 ("The night of the 5th, I submit to you, Robert Holleman killed Robin Op[f]er.”); 321 ("The murder of Scott Moore, I submit to you, was committed by the defendant.”); see also PR 296, 305, 307, 309, 310, 312, 313-14.
. Although my colleagues attempt to differentiate Judge Clement’s obligation to investigate potential conflicts of interest from Holleman’s own duty, I find the distinction they draw unconvincing. My colleagues reason that whereas ''[t]he purpose of the trial judge’s inquiry is to ensure that the defendant is receiving a fair trial,” ante at 746, the aim of the petitioner’s inquiry is "to research historical facts that could form the basis for habeas claims,” ante at 746. These are but two sides of the same coin, however: The trial judge acts to protect the defendant’s rights, while the habeas petitioner seeks to establish the ways in which his rights were not honored. Just as a judge cannot be expected to make a reasoned and fair decision when the relevant facts are kept from her, a petitioner cannot be expected to challenge a deprivation of his rights when he is unaware that a deprivation has even occurred. The duty of inquiry for judge and petitioner alike is defined in terms of notice. If, as my colleagues have concluded, the facts confronting Judge Clement were not sufficient to alert him to a conflict and thus to compel an inquiry, then the same facts could not, without more, have obligated a layman in Holleman’s position to inquire.
. Although cases such as Holloway and Cuyler, which recognize the attorney’s duty to disclose conflicts of interest, were decided after Holleman's 1977 trial, the notion was by no means novel. As Justice Stevens recently observed, "[t]he lawyer’s duty to disclose his representation of a client related to the instant charge is not only intuitively obvious, it is as old as the profession.” Miclcens, - U.S. at -, 122 S.Ct. at 1249 (Stevens, J., dissenting). Indiana’s rules of professional conduct embodied that duty well before Holleman's trial. See, e.g., In re Smith, 266 Ind. 6, 351 N.E.2d 1, 3 (1976); In re Farr, 264 Ind. 153, 340 N.E.2d 777, 784-85 (1976); Carlson v. Carlson, 148 Ind.App. 409, 266 N.E.2d 807, 809 (1971).
. My colleagues read the Fourth Circuit's opinion in Mickens v. Taylor, 240 F.3d 348, 356 (4th Cir.2001), aff’d, — U.S. -, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002), to imply that an attorney's silence as to his conflict of interest does not alone excuse the petitioner's failure to investigate the conflict. Ante at 745. I believe that they read too much into that court's holding however. It is true that the Mickens court cited both the attorney's silence and the secrecy of juvenile court records as the basis for its conclusion that the petitioner had established cause for his failure to raise the conflict in a timely manner. 240 F.3d at 356. However, at no point did the court consider whether the lawyer’s silence by itself would have been insufficient to excuse the procedural default; that question simply was not presented.
. Holleman’s testimony before the district court confirms that nothing more than a hunch prompted him to first mention Frank's successive representation of Love and himself *756to his appellate counsel, Dennis Kramer. Holleman explained:
"And I was really putting forth ideas [in a letter] to Mr. Kramer so that he could — so that I could sort of help him formulate issues for the appeal, basically. At one point in the letter, I think I said something to him like, 'There was something wrong with the representation of Mr. Frank when he represented Mr. Love earlier and then represented me, but I can't pinpoint it. I just have a gut feeling that there is something wrong there,' and I stated that to him in my letter.... I didn’t know what was wrong. I just had a feeling that something was wrong.”
Transcript of Hearing on Petition for Writ of Habeas Corpus ("THC”) 28; see also id. at 41, 53. Kramer himself concluded that the mere fact of Frank's successive representation of Love and Holleman did not supply a basis for a conflict of interest claim, see PR 269, and Holleman relied on Kramer's assessment, THC 30. Years later, when Holleman met with his post-conviction counsel, Jeffery Evans, to discuss potential grounds for post-conviction relief, Holleman again mentioned the issue, but only in passing. Holleman testified:
Mr. Evans was in the doorway leaving. We were in a little attorney booth. And I made a comment to him sort of offhandedly that, you know, "You may want to look into this. This lawyer that represented me also represented my co-defendant.”
THC 34. Evans' recollection of the conversation was similar:
I believe I'd even gotten up from my chair and was about to leave and trying to get things wrapped up and I was probably tired at that point. Robert looked at me and said something to the effect of remember at the beginning of this you told me to tell you everything? I said yeah, Robert, tell me everything. At that point he informed me that his attorney had previously represented a co-defendant in this case. And he was very — in telling me that, he was very sheepish about the whole thing. I think he was trying to show me that he was complying with my demand to tell me everything. And that's how it first came to my attention.
Evans Dep. 11.
. In fact, by the time Holleman was preparing his direct appeal, Frank had already terminated communications with Holleman. After Holleman had sent Frank a second letter inquiring about potential issues to raise on appeal, Frank told Holleman that he should direct all future inquiries to Dennis Kramer, his appellate counsel, rather than to Frank.