dissenting:
I respectfully dissent. I think that the trial court was obligated to hold a hearing on appellant Malede’s § 23-110 motion. A hearing was necessary under D.C.Code § 23-110(c) (1996) in order to determine whether Malede’s accusations of wrongdoing against his court-appointed trial counsel were meritorious — a determination that correlates with whether his counsel had an “actual” conflict of interest within the meaning of Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). In holding otherwise, the majority opinion conflicts, in my view, with this court’s decision in Douglas v. United States, 488 A.2d 121 (D.C.1985), as well as with a number of federal circuit court decisions. Those decisions recognize that “[wjhen a defendant accuses his counsel of improper behavior and the counsel disputes his client’s accusations,” then unless the accusations are frivolous “an actual conflict of interest results because any contention by counsel that defendant’s allegations were not true would ... contradict his client.” United States v. Shorter, 54 F.3d 1248, 1252-53 (7th Cir.1995) (internal quotations marks and citations omitted). Further, if Malede’s accusations were not frivolous, I think the resultant actual conflict “adversely affected his lawyer’s performance” within the meaning of Cuyler, as demonstrated by counsel’s statements to the trial judge that Malede was a malevolent liar. In holding that those statements did not demonstrate an adverse effect on counsel’s performance, the majority opinion fails, in my view, to adhere to the rule that no showing of prejudice is required to establish ineffective assistance of counsel under Cuyler, 446 U.S. at 349, 100 S.Ct. 1708, and Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
The salient facts are these. To the trial judge and to Bar Counsel, Malede made factually specific accusations of wrongdoing on the part of his trial counsel. As the majority opinion recites, Malede alleged that his court-appointed counsel had tried to line his own pockets by asking him for $5,000 to retain a defense psychiatrist; that his counsel had broken a promise to help him regain custody of his automobile; that his counsel had proposed selling the automobile to counsel’s friend for less than fair market value; and that his counsel had verbally abused him and was extremely hostile to him. Malede’s counsel responded to Malede’s accusations by moving to withdraw from the representation. In his motion, counsel stated to the court that Malede had “falsely accus[ed him] of all kinds of misconduct” and that counsel “no longer feels he can effectively represent this malevolent little man.” The trial court did not grant counsel’s motion to withdraw. Although Malede did not waive any conflict of interest or withdraw his accusations, counsel continued to represent Malede through trial despite reiterated requests by Malede that he be replaced. (After trial, the court did replace counsel when Malede renewed his complaints of ineffectiveness.)
Malede’s accusations against his counsel may have been entirely false and utterly defamatory. But while the trial court took commendable steps to alleviate Malede’s difficulties in maintaining an attorney-client relationship, the court did not inquire into whether Malede’s accusations were without foundation or advanced in bad faith, and the record in its current state does not permit us to say that.
The Sixth Amendment right to the effective assistance of counsel encompasses a right to counsel whose loyalty to the defendant is unconflicted. See Douglas, 488 A.2d at 136. Under Cuyler and Strickland, the question of whether Malede is entitled to relief for a Sixth Amendment violation turns on whether his counsel “actively represented conflicting interests” and whether “an actual conflict of interest adversely affected his lawyer’s performance.” Strickland, 466 U.S. at 692, 104 S.Ct. 2052; Cuyler, 446 U.S. at 350, 100 *275S.Ct. 1708. If so, then Malede “need not demonstrate prejudice in order to obtain relief.” Cuyler, 446 U.S. at 349-50, 100 S.Ct. 1708 (citing Holloway v. Arkansas, 435 U.S. 475, 487-91, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978)). “Prejudice is presumed.” Strickland, 466 U.S. at 692, 104 S.Ct. 2052. Accord, Veney v. United States, 738 A.2d 1185, 1193 and n. 10 (D.C.1999); Thomas v. United States, 685 A.2d 745, 751 (D.C.1996); Douglas, 488 A.2d at 136 n. 16.
Many cases recognize that when a defendant makes non-frivolous accusations of wrongdoing against his attorney, which the attorney disputes, an actual conflict of interest arises and the Cuyler-Strickland test is satisfied. In this jurisdiction, that is the import of Douglas, 488 A.2d at 136-37. In Douglas the defendant complained to Bar Counsel about his attorney’s allegedly insufficient effort to obtain a bond reduction. We found it immaterial that this complaint was — like Malede’s complaints here — “unrelated to [counsel's] trial preparation or performance.” Id. at 126. We recognized that “as soon as [counsel] learned of Bar Counsel’s intention to pursue an investigation of appellant’s complaint, he acquired a personal interest in the way he conducted appellant’s defense — an interest independent of, and in some respects in conflict with, appellant’s interest in obtaining a judgment of acquittal" which constituted a “conflict of interest [that] would have adversely affected [counsel’s] ability to render effective assistance to appellant at trial.” Id. at 136-37. See also Shorter, 54 F.3d at 1252 (at sentencing and in a motion to withdraw, counsel stated that defendant had falsely accused her of forcing him to plead guilty; court agrees that “counsel’s action demonstrated a conflict of interest which prevented the attorney from representing him at sentencing with undivided loyalties”); Smith v. Lockhart, 923 F.2d 1314, 1320-22 (8th Cir.1991) (defendant filed lawsuit against his counsel; court holds that counsel had an interest that conflicted with defendant’s); Mathis v. Hood, 937 F.2d 790, 795-96 (2d Cir.1991) (defendant filed grievance against his counsel with disciplinary committee; court finds that counsel had an “adverse interest in the outcome” of defendant’s case).
In Douglas, Bar Counsel had already begun to investigate the complaint against the attorney, whereas in the present case it appears that Bar Counsel’s investigation was on hold pending the outcome of Malede’s trial. See Douglas, 488 A.2d at 126. The majority opinion suggests that it was only because the disciplinary investigation had actually begun in Douglas that the resulting circumstances “were not conducive to the cooperative spirit and single-mindedness of purpose that ordinarily should underlie a defendant/attorney relationship.” Ante at 271 (quoting Douglas, 488 A.2d at 137). With respect, I think" that this is not a meaningful ground for distinguishing Douglas from the present case. Malede’s counsel could look forward to a Bar Counsel investigation commencing after trial. From counsel’s perspective, the fact that the sword of Damocles had not yet begun to fall, but was still hanging over his head, does not alter the fact that he was still under a threat of decapitation because his client had become adverse to him.1 Certainly the reaction of *276Malede’s counsel — to inform the judge who would both try and sentence Malede that his client was a malevolent liar — demonstrates emphatically that the circumstances resulting from Malede’s accusations of wrongdoing, even though not yet being investigated by Bar Counsel, “were not conducive to the cooperative spirit and singlemindedness of purpose” that Douglas deemed essential. Douglas, 488 A.2d at 137.
Concerned that finding a conflict of interest whenever a defendant files a grievance against his counsel “would invite criminal defendants anxious to rid themselves of unwanted lawyers to queue up at the doors of bar disciplinary committees on the eve of trial,” United States v. Burns, 990 F.2d 1426, 1438 (4th Cir.1993), the majority opinion declines to hold that “the bare filing” of a disciplinary complaint creates an actual conflict of interest.2 Ante at 271. As an abstract proposition, I agree with that statement. The defendant’s accusations must be non-frivolous. See Mathis, 937 F.2d at 796. “Allegations of wrongdoing alone cannot rise to the level of an actual conflict unless the charges have some foundation.” United States v. Contractor, 926 F.2d 128, 134 (2d Cir.1991) (quoting United States v. Jones, 900 F.2d 512, 519 (2d Cir.1990)). A defendant cannot manufacture an imaginary conflict out of thin air where none exists, merely by filing a disciplinary complaint that has no basis. But that abstract proposition does not decide this case, inasmuch as the baselessness of Malede’s allegations has not been established. For this very reason, our cases teach that the trial court has “an affirmative ‘duty to inquire’ ... whenever ‘the possibility of a conflict’ becomes apparent before or during trial.” Douglas, 488 A.2d at 136 (quoting Wood v. Georgia, 450 U.S. 261, 272, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981) (emphasis in the original)). Following Cuyler, we subsequently recognized that “the ‘affirmative duty to inquire’ is also applicable to the post-trial period when allegations surface that an alleged conflict of interest had an adverse impact on the attorney’s representation.” Thomas, 685 A.2d at 751. The way to deal with the concern expressed in Bums about abusive complaints is not to blink the reality that when a defendant and his lawyer become embroiled in a real dispute over whether the lawyer engaged in wrongdoing, an actual conflict of interest exists. Rather, as the United States Court of Appeals for the Second Circuit explained in Mathis, the way to deal with that concern is for the court to determine whether the accusations against the lawyer are frivolous or not:
The district court recognized that its decision might “cause many appellants to file disciplinary charges against their attorneys,” but it correctly observed that “such complaints, if unwarranted or brought with a motivation for delay, should not be grounds for [habeas relief].” ... A frivolous complaint against an attorney, or one filed for purposes of delay, or even one filed for the purpose of obtaining new counsel, would not create a conflict of interest warranting ha-beas relief of the type approved here.
Mathis, 937 F.2d at 796 (citations omitted).
I conclude that, unless Malede’s accusations were frivolous, there was an actual *277conflict of interest between him and his counsel. In that event, I also think that, on the record before us, it is demonstrably true that counsel was actively representing conflicting interests — his own and Ma-lede’s — and that the actual conflict adversely affected counsel’s performance as Malede’s lawyer. Counsel actively represented his own interest and performed adversely to Malede when he told the trial court that Malede had made malevolent and false accusations against him. By that unrefuted charge, counsel impugned his client’s honesty and integrity to the judge who thereafter would evaluate Malede’s credibility and the credibility of his expert witness (who relied in part on what Malede had told him), and who then would impose sentence based on his overall evaluation of the offender standing before him. Malede was entitled to have his lawyer bolster his credibility and character to that judge, not besmirch it.3
The majority opinion concedes, as it must, that an adverse effect on counsel’s performance is demonstrated if counsel “effectively discredits his client before the factfinder on the defense presented.” Ante at 273. As the majority states, in such a case “[t]he mischief lies in what counsel did, not in what else he might have done.” Id. Paradoxically, however, the majority nonetheless goes on to conclude that counsel’s disparagement of his client in this case did not manifest an adverse impact on his performance because — so far as the majority can discern, without a hearing, and on the record of trial alone— it had no “identifiable effect on the defense strategy [counsel] then followed, the skill or vigor with which he pursued it, or the chances of that defense strategy prevailing.” Ante at 273 (emphasis added). The fundamental flaw in this reasoning, I respectfully submit, is that it is an analysis not of adverse effect on performance, but of prejudice resulting from counsel’s divided loyalty. Under Cuyler and Strickland, that is exactly the analysis that a court is not to perform once it is determined that an actual conflict of interest adversely affected counsel’s performance. “[Prejudice is presumed when counsel is burdened by an actual conflict of interest,” for one reason because “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. 2052; see also Cuyler, 446 U.S. at 345-50, 100 S.Ct. 1708.
Without casting any aspersion on Ma-lede’s counsel (who may have been unfairly maligned already), the present case may be taken to illustrate the point. Given Malede’s accusations against him, counsel’s motivation to mount a successful defense was (objectively speaking) counterbalanced by his personal interest in seeing Malede be discredited. Did that interest diminish the diligence and vigor with which counsel pursued Malede’s defense? Did an actual conflict explain, for example, why counsel did not manage to find an expert witness whose testimony would support the essentials of Malede’s insanity defense? Might unconflicted counsel have negotiated a favorable plea disposition in lieu of trial? The answers to these and similar questions that might be asked are probably unknowable. But they need not be known. Once it is shown that an actual conflict of interest adversely affected counsel’s performance, the inquiry into prejudice stops. The essence of the problem is the unacceptable, if often unmeasurable, diminishment in counsel’s efforts on his client’s behalf.
I conclude that the trial court was required to hold a hearing on Malede’s § 23-110 motion to determine whether there was an “actual” conflict of interest— whether, that is, Malede’s accusations against his counsel had a foundation in fact or were simply manufactured in bad faith. If the accusations were frivolous, then Ma-*278lede should be denied relief. If the accusations were not frivolous, there was a sufficient adverse effect on counsel’s performance that, under the Sixth Amendment, Malede is entitled to have his convictions vacated, and to receive a new trial with unconflieted counsel.
. Thus, everything we said in Douglas about how the pendency of the Bar Counsel inquiry might have impaired counsel’s undivided loyalty to his client is applicable here:
“For instance, fearing that appellant’s complaint to Bar Counsel might later be expanded to include claims of ineffective assistance at trial, [counsel] would have an inordinate interest in conducting the defense in a manner calculated to minimize any opportunity for post hoc criticism of his efforts. This could compromise [counsel’s] professional judgment about the best means of defending this particular case; it could encourage the most standard or conservative trial strategy, as well as overcautious tactical decisions and courtroom demeanor. Furthermore, concerns about the pending investigation might impede communications between appellant and [counsel]. [Counsel] might be apprehensive about sharing with appellant the reasons behind *276tactical defense decisions and refrain from disclosing to appellant any unexpected problem that arose during the course of trial. Appellant, in turn, might be reluctant to question [counsel’s] trial decisions for fear of further alienating counsel in the midst of trial."
Douglas, 488 A.2d at 136-37 (footnote omitted).
. The majority opinion suggests that it was "[f]or this reason [that] in Douglas we pointed to the fact that Bar Counsel had already begun an investigation into the complaint against counsel at the time the issue arose in court, giving the attorney ten days to respond to the grievances in writing.” Ante at-. To the contrary, the commencement of the investigation merely explained how Douglas’s counsel learned that his client had filed a grievance against him. See Douglas, 488 A.2d at 126.
. Imagine what we would say if Malede had been tried by a jury instead of a judge, and his counsel had told the jury during voir dire that he was seeking to withdraw because his client had made malevolently false accusations against him.