Beets v. Collins ( 1995 )


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  •                     UNITED STATES COURT OF APPEALS
                             FOR THE FIFTH CIRCUIT
    
                             _______________________
    
                                   No. 91-4606
                             _______________________
    
    
    BETTY LOU BEETS,
    
                                                         Petitioner-Appellee,
    
                                       versus
    
    WAYNE SCOTT, Director Texas
    Department of Criminal Justice,
    Institutional Division,
    
                                                        Respondent-Appellant.
    
    
    _________________________________________________________________
    
               Appeal from the United States District Court
                     for the Eastern District of Texas
    _________________________________________________________________
    
                              (September 22, 1995)
    
    Before POLITZ, Chief Judge, KING, GARWOOD, JOLLY, HIGGINBOTHAM,
    DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZA, and
    DeMOSS, Circuit Judges.*
    
    EDITH H. JONES, Circuit Judge:
    
               The issue that provoked en banc rehearing of this capital
    
    murder case is whether a habeas corpus petitioner was deprived of
    
    her Sixth Amendment right to effective assistance of counsel
    
    because her attorney committed arguable ethical violations when he
    
    obtained a contract for media rights to her story and failed to
    
    withdraw and testify as a defense witness.            More precisely, the
    
    
    
          *     Judges Stewart and Benavides were not members of the Court when
    this case was argued and have elected not to participate. Judge Parker is
    recused.
    court has divided over the issue whether these facts should be
    
    measured by the Strickland standard for an attorney's deficient
    
    performance1 or by the Cuyler standard adopted for the special case
    
    of attorney conflicts in cases of multiple client representation.2
    
    On reconsideration, we approve Judge Higginbotham's analysis in a
    
    concurrence     to   the         panel   opinion   that    Strickland     more
    
    appropriately    gauges     an   attorney's   conflict    of   interest   that
    
    springs not from multiple client representation but from a conflict
    
    between the attorney's personal interest and that of his client.
    
    Judged under Strickland, the attorney's actions in this case were
    
    neither deficient nor prejudicial. Alternatively, however, even if
    
    the Cuyler standard applies, we find that only a potential and not
    
    an actual conflict arose between Beets and her lawyer.             On either
    
    ground, the writ must be denied.3
    
               Because our analysis of the Sixth Amendment issue depends
    
    upon a thorough recapitulation of the history of the case, the
    
    background is described with more than usual detail.
    
                                     I.   BACKGROUND
    
                           A.    Summary of Proceedings
    
               On October 11, 1985, petitioner Betty Lou Beets (Beets)
    
    was convicted of the capital murder of her fifth husband, Jimmy Don
    
    
    
          1.    Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
     (1984).
    
          2.   Cuyler v. Sullivan, 
    446 U.S. 335
    , 
    100 S. Ct. 1708
    , 
    64 L. Ed. 2d 233
    (1980).
    
          3.    The other issues dealt with in the panel opinion were not reheard
    by the court en banc and their disposition is approved.
    
                                             2
    Beets (Jimmy Don).      She was sentenced to death.          Beets appealed
    
    unsuccessfully to the Texas Court of Criminal Appeals, see Beets v.
    
    State, 
    767 S.W.2d 711
     (Tex. Crim. App. 1988), cert denied, 
    492 U.S. 912
    , 
    109 S. Ct. 3272
    , 
    106 L. Ed. 2d 579
     (1989).            Her request for a
    
    state writ of habeas corpus having been denied, Beets sought
    
    similar relief in federal court.          28 U.S.C. § 2254.    The district
    
    court granted the writ on finding that Beets's defense counsel at
    
    trial was a material witness who should have resigned to testify
    
    rather than represent her.      On appeal, this court rejected Beets's
    
    claims that her attorney labored under an actual conflict of
    
    interest stemming from either his status as a witness or the media
    
    rights contract. The panel majority applied the Cuyler standard to
    
    the case and, while Judge Higginbotham agreed with the conclusion
    
    of no actual conflict, he maintained in a separate opinion that
    
    Strickland should be applied instead.
    
                               B.   The Murder Case
    
                  Beets's   fifth   husband,     Jimmy   Don,   disappeared       on
    
    August 6, 1983.      See Beets v. State, 
    767 S.W.2d 711
     (Tex. Crim.
    
    App. 1988) (lengthy recitation of the evidence).            His fishing boat
    
    was found drifting on Lake Athens, Texas, suggesting that he had
    
    drowned.4    More than a year later, a house that was Jimmy Don's
    
    separate property before his death was destroyed by fire. When the
    
    insurer, suspecting arson, refused Beets's claim for the loss,
    
    
    
          4.    Beets's son, Robbie, admitted at trial that he had set the boat
    adrift to give the appearance that Jimmy Don had fallen overboard. Jimmy
    Don's heart pills had been spilled on the floor of the boat to make his
    disappearance seem accidental.
    
                                          3
    Beets sought the counsel of E. Ray Andrews, an attorney who had
    
    represented Beets since 1981 or '82.         During their discussions, it
    
    was decided that Andrews would pursue any of Jimmy Don's insurance
    
    or pension benefits to which Beets might be entitled.
    
                Beets   and   Andrews    entered    into    a    contingent      fee
    
    arrangement    covering    these    matters.       Andrews     preliminarily
    
    determined that certain benefits existed and then sought the
    
    assistance of two attorneys more experienced in collecting such
    
    benefits.   Andrews arranged a meeting in his office with Beets and
    
    Randell Roberts, one of the other attorneys.             Roberts agreed to
    
    associate his firm in the matter.            Roberts's brother, attorney
    
    Bruce Roberts, eventually took over responsibility for Beets's
    
    claims. Through his efforts, Jimmy Don's former employer, the City
    
    of Dallas Fire Department, agreed to provide benefits to Beets.
    
                Before Beets received the first check from the Fire
    
    Department, she was arrested on June 8, 1985, and was charged with
    
    the capital murder of Jimmy Don.          Beets was charged with shooting
    
    and killing her husband and, with the assistance of her son, Robbie
    
    Branson, burying him in a sleeping bag under a planter in her front
    
    yard.5   The body of Beets's fourth husband, Doyle Wayne Barker, was
    
    also found in a sleeping bag buried in the back yard underneath a
    
    patio upon which a storage shed had been erected.             Beets had also
    
    shot another former husband, Bill Lane, although he survived.
    
    
    
    
          5.    The planter was also described as a "wishing-well."   Beets v.
    State, 767 S.W. at 739.
    
                                          4
                  Andrews, described by the federal district judge as a
    
    "competent      and    tenacious    criminal   defense    lawyer,"     agreed   to
    
    represent Beets on the capital murder charge.              The case generated
    
    significant local and national media interest.             On October 8, just
    
    after Beets's trial commenced, she signed a contract transferring
    
    all literary and media rights in her case to Andrews's son.
    
    Andrews testified at the federal habeas hearing that this contract
    
    was signed after negotiations fell through to obtain his fee from
    
    Beets's children.           The media rights contract later apparently
    
    became the subject of a State Bar grievance proceeding, but Andrews
    
    was not disciplined for it.
    
                  The trial judge did not become aware of the media rights
    
    contract during trial, although he learned of it three months later
    
    during a hearing on Beets's motion to appoint counsel for appeal
    
    when the prosecutor asked Beets if she had signed over the book
    
    rights to her case to Andrews's son.               The judge did not inquire
    
    whether Beets was willing to waive her Sixth Amendment right to
    
    conflict-free counsel.
    
                  Beets was convicted of murder for remuneration and the
    
    promise of remuneration on the theory that she killed her husband
    
    in order to obtain his insurance and pension benefits and his
    
    estate.       See Tex. Penal Code Ann. § 19.03(a)(3) (Vernon Supp.
    
    1991).       The Texas Court of Criminal Appeals later held that "a
    
    person commits a murder for remuneration . . . where the actor
    
    kills    a    victim   in   order   to   receive    a   benefit   or   financial
    
    settlement paid upon the death of the victim, such as proceeds of
    
    
                                             5
    insurance and retirement benefits as in the present case."     Beets
    
    v. State, 767 S.W.2d at 737.          In other words, the state was
    
    required to show that Beets had the specific intent to receive
    
    remuneration in the form of insurance or pension benefits or other
    
    property upon the death of Jimmy Don.
    
                Andrews defended Beets primarily on the ground that her
    
    son Robbie actually murdered Jimmy Don and, second, by disputing
    
    that the murder was for remuneration.        Andrews, his co-counsel
    
    Hargrave, the Texas Court of Criminal Appeals and the federal
    
    district court all concur that this was the order of Andrews's
    
    strategy.     It was a good strategy, as the federal district judge
    
    explained:
    
         The court has carefully reviewed the record.        It is
         apparent that the defense counsel, E. Ray Andrews, fought
         for his client to the full extent of his ability and
         energy.    This case was vigorously prosecuted and
         vigorously defended before a careful and learned trial
         judge. Andrews put forth the only evidence available to
         him that had evidence that a jury could conclude had
         scientific corroboration -- the results of the pathology
         report which raised the issue of an altercation and head
         injury unrelated to the gun shot.      Such evidence, if
         believed, would be consistent with the defense position
         that Jimmy Don Beets was killed by petitioner's son,
         Robert F. Branson, II.
    
                Andrews strenuously cross-examined Robbie Branson, one of
    
    Beets's children, who was at the time of the offense a teenager
    
    living with her and Jimmy Don.     Several times, he had quarrelled
    
    heatedly with his stepfather, and he had damaged some of Jimmy
    
    Don's property and taken money from him.       Robbie had a criminal
    
    record for burglary and was accused of trying to pass stolen
    
    checks.      Although Robbie denied killing his stepfather, Beets
    
    
                                      6
    testified that Robbie and Jimmy Don fought on the night of the
    
    murder and, when she was in another room, she heard a shot fired in
    
    the bedroom.     She found Jimmy Don dead on the floor.          Beets said
    
    she helped Robbie dispose of the body.         Together, they planned the
    
    boating accident ruse, and Beets went off to shop in Dallas with
    
    her daughter the next day.
    
               Beets denied being the murderer.            She said she loved
    
    Jimmy Don and he had treated her well.
    
               Supporting the theory that Robbie committed the murder,
    
    the forensic pathologist, Dr. Petty, testified that Jimmy Don's
    
    fractured cheek bone, otherwise unexplainable by his head wound
    
    from the pistol, could have been inflicted in a fight with another
    
    man.
    
               Critical to the success of the non-triggerperson defense
    
    was Beets's motion in limine to prevent the state from introducing
    
    evidence of Barker's body, which had been dug up at the same time
    
    as Jimmy Don's.        The state trial judge initially granted this
    
    motion but changed his mind near the end of trial.              This change
    
    made it possible for Beets's daughter Shirley Stegner to testify
    
    for the State that Beets had killed Barker in 1981 and obtained
    
    Shirley's help in burying him in the back yard.6                Shirley was
    
    vulnerable as a witness because of her own criminal exposure in
    
    Barker's murder and her unsavory personal background. Andrews made
    
    the most    of   her   impeachment.       Nevertheless,   the   evidence   of
    
    
    
          6.    The introduction of this evidence was upheld by the state
    appellate court. Beets v. State, 767 S.W.2d 737-41.
    
                                          7
    Barker's violent death was devastating to the defense, as Andrews
    
    and Hargrave both acknowledged at the federal habeas hearing.
    
              Shirley Stegner's testimony about her mother's motive for
    
    killing Barker also enhanced the state's proof of motive in Jimmy
    
    Don's case.   Shirley testified that her mother told her that
    
         "she was going to kill Doyle Wayne Barker" because "she
         couldn't put up with any more of him beating her and that
         she didn't want him around anymore."
    
    Her mother also told her that
    
         "the trailer [house] was in his name and she was just a
         co-signer on it and that if they were to get a divorce,
         that he would end up with the trailer [house]."
    
    Beets v. State, 767 S.W.2d at 718.
    
              The State adduced other evidence of Beets's attempts to
    
    enrich herself at the expense of Jimmy Don's life or his estate.
    
    Less than six months before he died, Betty Lou applied to J.C.
    
    Penney for a $10,000 life insurance policy in Jimmy Don's name,
    
    which she forged on the application.             She directed all further
    
    correspondence    on   the   policy    to   a   daughter's   home   address.
    
    Coincidentally, a relative of her husband was then employed at J.C.
    
    Penney's and noticed some discrepancies on the paperwork, which she
    
    brought to Jimmy Don's attention.               He promptly cancelled the
    
    policy.
    
              After    Jimmy     Don's    disappearance,    Beets   forged   his
    
    signature on the title certificate of the boat, which had been his
    
    separate property, and sold it for $3,250.          She also tried to sell
    
    a house that had been his separate property.           As has been related,
    
    
    
    
                                           8
    the house mysteriously burned down, so she sought out Andrews to
    
    collect the fire insurance benefits.
    
               Also important to the State was the testimony of Denny
    
    Burris, a chaplain with the City of Dallas Fire Department. Burris
    
    met with Beets several times during the first few weeks after Jimmy
    
    Don was reported missing:
    
          Burris testified that [Beets] made inquiry of him whether
          she was covered by any insurance policies that [Jimmy
          Don] might have had with the City of Dallas, as well as
          inquiring whether she would be entitled to receive any
          pension benefits that [Jimmy Don] might have accumulated.
          [Beets] did not profess to Burris that she had any
          specific knowledge of either insurance coverage on [Jimmy
          Don]'s life or any pension benefits [Jimmy Don] might
          have accumulated. Burris told her that he did not know
          but would check into the matter and report back to her.
          Burris did check and learned that [Jimmy Don]'s life was
          insured with the total amount of insurance being
          approximately $110,000.    He also learned that [Beets]
          would be entitled to receive approximately $1,200 each
          month from [Jimmy Don]'s pension benefits.         Burris
          advised [Beets] of his findings, and also told her that
          according to the City Attorney of Dallas that because
          [Jimmy Don]'s body had not been recovered there would be
          a seven year waiting period before any payment of
          insurance proceeds could occur.
    
    Beets v. State, 767 S.W.2d at 716-17.           Burris's testimony implied
    
    that right after Jimmy Don's disappearance, the "bereaved" wife was
    
    inquiring about his death benefits.           This testimony could be taken
    
    by the jury to mean that she was already greedy or truly ignorant
    
    about them at that time.      In any event, Beets had to assume from
    
    Burris's information that she must wait several years before
    
    collecting them.
    
               Andrews's strategy to negate the specific intent element
    
    of the capital crime was to introduce Beets's testimony that she
    
    was   unaware   of   any   potential       insurance   or   pension   benefits
    
                                           9
    available to her at the time she approached Andrews, eighteen
    
    months   after    Jimmy      Don's   "disappearance,"        for   assistance    in
    
    pursuing her fire damage claim.               Beets testified that Andrews
    
    suggested that she should pursue Jimmy Don's life insurance or
    
    pension benefits but that she never felt entitled to them.
    
                Bruce Roberts testified as part of the strategy that
    
    Beets seemed interested in no other insurance claims than that
    
    pertaining to the burned house.          Beets brought Roberts what looked
    
    like part    of   an    insurance     policy,   and    she    mentioned   pension
    
    benefits, but she gave Roberts no other information helpful to
    
    pursuing the claims.            To Roberts, Beets appeared not to know
    
    anything about the amount or nature of any death benefits to which
    
    she might be entitled.         Roberts confirmed that she never received
    
    any money on her claims.
    
                In closing argument, Andrews informed the jury that it
    
    was his idea to pursue Jimmy Don's benefits for Beets.                          His
    
    statement was not objected to.
    
                The jury disbelieved Beets's non-triggerperson defense
    
    and her denial of a pecuniary motive and so convicted her of
    
    capital murder.     The state court of criminal appeals affirmed.
    
                           C.    Post-Conviction Proceedings
    
                In    the       state    habeas   corpus    proceedings,      Beets,
    
    represented by new counsel, filed a voluminous petition but raised
    
    her Sixth Amendment conflict-of-interest claim only as to Andrews's
    
    media rights contract -- and without mentioning Andrews's status as
    
    a witness -- as claim number 34(h) on page 70 of her pleading.
    
    
                                             10
    Andrews filed an affidavit that the media rights contract did not
    
    adversely affect his representation of Beets.                The trial court,
    
    agreeing with Andrews, stated:
    
              (4) As to Petitioner's ineffective counsel claim,
         the Court finds from personal recollection of the trial
         that this case was hotly contested by Petitioner's trial
         counsel and that Petitioner was vigorously defended at
         every stage of the trial proceedings by her counsel.
         Petitioner's grant of "book rights" to the son of her
         counsel had no effect on the strategy of defense counsel.
         Counsel for Petitioner made an adequate factual
         investigation of the case.
    
              The conduct of Petitioner's counsel at trial date
         did not so undermine the proper functioning of the
         adversarial process that the trial cannot be relied on as
         having produced a just result.
    
              The conduct of petitioner's counsel during trial was
         not deficient and he presented all evidence then existing
         to support the defense of his client.
    
    The court's denial of relief was affirmed by the Texas Court of
    
    Criminal Appeals.
    
               Beets's federal habeas petition alleged, among many other
    
    issues,   that   Andrews's    failure       to   withdraw   and    offer   direct
    
    testimony that Beets was ignorant of potential death benefits
    
    constituted an actual conflict of interest with his client.                 Beets
    
    further alleged that the media rights contract gave rise to a
    
    separate conflict of interest.
    
               The    district    court,     after     holding    an    evidentiary
    
    hearing,7 decided that Andrews's failure to withdraw and testify
    
    
          7.    It is not clear that Beets was actually entitled to an evidentiary
    hearing. If Beets's case arose today it is even more doubtful that she would
    have been so entitled under the cause-and-prejudice standard announced in
    Keeney v. Tamayo-Reyes, 
    504 U.S. 1
    , 
    112 S. Ct. 1715
    , 
    118 L. Ed. 2d 318
     (1992).
    Under Keeney, Beets would be entitled to an evidentiary hearing only if she
    could "show cause for [her] failure to develop the facts in state-court
    proceedings and actual prejudice resulting from that failure." Id. at 11, 112
    
                                           11
    resulted in an actual conflict of interest that adversely affected
    
    his representation of Beets. Granting the writ of habeas corpus on
    
    this basis, the court found:
    
         Andrews obviously should have known of his dual status as
         witness and advocate prior to trial.       Andrews' dual
         status should have also been apparent to both the judge
         and district attorney as the trial unfolded. The Court
         is persuaded that the conflict never occurred to any of
         the participants. The testimony that Andrews could have
         provided as an independent witness related to an
         essential element of the State's charge of murder for
         remuneration.
    
    The court also concluded that the media rights contract, factually
    
    intertwined with the failure to withdraw conflict, constituted a
    
    separate conflict of interest, but he expressly found that it did
    
    not adversely affect Andrews's performance.               In reaching his
    
    decision on the Sixth Amendment issue, the district court applied
    
    the test set out in Cuyler v. Sullivan, supra n.2.
    
                                 II.   DISCUSSION
    
               Risen from obscurity in her state habeas petition to the
    
    dispositive issue in federal district court are Beets's complaints
    
    that her lawyer's ethical violations, breaches of the duty of
    
    loyalty to his client, violated the Sixth Amendment.                No doubt
    
    Beets's constitutional right to effective counsel demands diligent
    
    protection.     The primary question before us, however, is the
    
    applicable standard of protection.
    
    
    
    S.Ct. at 1721. Moreover, Beets's failure to develop her claims in state court
    would be excused and a hearing mandated only if she could "show that a
    fundamental miscarriage of justice would result from failure to hold a federal
    evidentiary hearing." Id.; cf. McCleskey v. Zant, 
    499 U.S. 467
    , 495, 
    111 S. Ct. 1454
    , 1470, 
    113 L. Ed. 2d 517
     (1991); Murray v. Carrier, 
    477 U.S. 478
    ,
    496, 
    106 S. Ct. 2639
    , 2649-50, 
    91 L. Ed. 2d 397
     (1986).
    
                                         12
              The Supreme Court has determined that in most Sixth
    
    Amendment ineffectiveness cases, the defendant must show that
    
    counsel's errors fell below an objective standard of reasonableness
    
    and prejudiced his case, which ordinarily means establishing a
    
    reasonable probability that counsel's errors changed the result of
    
    the proceeding.     Strickland, 466 U.S. at 686, 694, 104 S.Ct. at
    
    2064, 2067.   In some cases, however, prejudice is presumed if the
    
    defendant shows that an actual conflict of interest adversely
    
    affected his lawyer's performance.    Cuyler, 446 U.S. at 348, 100
    
    S.Ct. at 1718.     The precise nature of Cuyler's "actual conflict"
    
    and "adverse effect" elements is rather vague, but the Cuyler test
    
    sets a lower threshold for reversal of a criminal conviction than
    
    does Strickland.    The Supreme Court explained the reason for this
    
    distinction as follows:
    
              One type of actual ineffectiveness claim warrants a
         similar, though more limited, presumption of prejudice
         [than a case in which the defendant effectively had no
         counsel]. In Cuyler v. Sullivan, 446 U.S., at 345-350,
         100 S.Ct., at 1716-1719, the Court held that prejudice is
         presumed when counsel is burdened by an actual conflict
         of interest. In those circumstances, counsel breaches
         the duty of loyalty, perhaps the most basic of counsel's
         duties. Moreover, it is difficult to measure the precise
         effect on the defense of representation corrupted by
         conflicting interests. Given the obligation of counsel
         to avoid conflicts of interest and the ability of trial
         courts to make early inquiry in certain situations likely
         to give rise to conflicts, see, e.g., Fed. R. Crim. Proc.
         44(c), it is reasonable for the criminal justice system
         to maintain a fairly rigid rule of presumed prejudice for
         conflicts of interest. Even so, the rule is not quite
         the per se rule of prejudice that exists for the Sixth
         Amendment claims mentioned above. Prejudice is presumed
         only if the defendant demonstrates that counsel "actively
         represented conflicting interests" and that "an actual
         conflict of interest adversely affected his lawyer's
         performance." Cuyler v. Sullivan, supra, 446 U.S., at
         350, 348, 100 S.Ct., at 1719, 1718 (footnote omitted).
    
                                     13
    Strickland, 466 U.S. at 692, 104 S.Ct. at 2067.
    
                The position adopted by this court en banc may be easily
    
    summarized.    Strickland offers a superior framework for addressing
    
    attorney conflicts outside the multiple or serial client context.8
    
    First, Cuyler, like all the other Supreme Court cases that have
    
    discussed a lawyer's conflict of interest, solely concerned the
    
    representation of multiple clients.            The Supreme Court has not
    
    expanded    Cuyler's    presumed      prejudice      standard   beyond   cases
    
    involving multiple representation.             Although lower courts have
    
    generally   extended    Cuyler   to    "duty    of   loyalty"   cases,   their
    
    decisions have not grappled with the difficulties inherent in that
    
    position, and their reasoning has been inconsistent.             See note 10,
    
    infra.   Second, the demands and reasoning of legal ethics militate
    
    against treating multiple representation cases like those in which
    
    the lawyer's self-interest is pitted against the duty of loyalty to
    
    his client.9     Finally, applying Cuyler in cases arising from a
    
    lawyer's conflict of interest between himself and his client
    
    ultimately undermines the uniformity and simplicity of Strickland.
    
    Each of these propositions will be discussed.
    
    
    
    
          8.    Cuyler has been routinely applied to cases in which an alleged
    attorney conflict resulted from serial representation of criminal defendants
    as well as simultaneous multiple representation. See, e.g., Burger v. Kemp,
    
    483 U.S. 776
    , 
    107 S. Ct. 3114
    , 
    97 L. Ed. 2d 638
     (1987). For convenience, we
    denominate both of these situations as "multiple representation."
    
          9.    See Garcia v. Bunnell, 
    33 F.3d 1193
    , 1198 n.4 (9th Cir. 1994),
    cert. denied, 
    115 S. Ct. 1374
    , 
    131 L. Ed. 2d 229
     (1995) ("It is not logically
    necessary that the approach of these [multiple representation] cases also
    apply to conflicts between a defendant's and the attorney's own personal
    interests").
    
                                           14
                  A. Cuyler and Related Supreme Court Cases
    
               Although the federal circuit courts have unblinkingly
    
    applied Cuyler's "actual conflict" and "adverse effect" standards
    
    to all kinds of alleged attorney ethical conflicts,10 a careful
    
    reading of the Supreme Court cases belies this expansiveness.
    
    Neither Cuyler nor its progeny strayed beyond the ethical problems
    
    of multiple representation.         One cannot read Cuyler to analyze
    
    conflicts of interest in a context broader than that of multiple
    
    client representation.      The case came to the Supreme Court raising
    
    
    
          10.   See, e.g., United States v. Hanoum, 
    33 F.3d 1128
    , 1130-32 (9th
    Cir. 1994), cert. denied, 
    115 S. Ct. 1702
     (1995) (appeal dismissed without
    prejudice to bring again with more facts supporting allegation that attorney
    was having sex with defendant's wife and therefore had incentive to make sure
    defendant was found guilty); Winkler v. Keane, 
    7 F.3d 304
    , 307-10 (2nd Cir.
    1993), cert. denied, 
    114 S. Ct. 1407
    , 
    128 L. Ed. 2d 79
     (1994) (no adverse effect
    found in criminal defense contingency fee arrangement); United States v.
    Sayan, 
    968 F.2d 55
    , 64-65 (D.C. Cir. 1992) (no actual conflict when attorney
    who was appointed one week before trial failed to request a continuance
    allegedly because he was afraid of adverse consequences to him and his firm if
    he filed such a motion); United States v. Michaud, 
    925 F.2d 37
    , 40-42 (1st
    Cir. 1991) (no Sixth Amendment violation when defense attorney in tax case
    taught classes to IRS agents on how to detect tax fraud); United States v.
    Salerno, 
    868 F.2d 524
    , 540-41 (2nd Cir.), cert. denied, 
    493 U.S. 811
    , 
    110 S. Ct. 586
    , 
    27 L. Ed. 2d 25
     (1989) (no actual conflict or adverse effect when
    attorney and his firm were being investigated by the government and were
    allegedly unusually cooperative with the government in defendant's case);
    United States v. Horton, 
    845 F.2d 1414
    , 1418-21 (7th Cir. 1988) (no actual
    conflict and no adverse effect when attorney was "serious" candidate for U.S.
    Attorney during his representation of the defendant); United States v. McLain,
    
    823 F.2d 1457
    , 1463-64 (11th Cir. 1987) (found both actual conflict and
    adverse effect when lawyer was going to be indicted on unrelated matter at
    conclusion of case; lawyer had incentive to delay proceedings and evidenced
    poor effort in plea negotiations); Zamora v. Dugger, 
    834 F.2d 956
    , 960-61
    (11th Cir. 1987) (no actual conflict and no adverse effect on allegation that
    attorney was more interested in publicity than obtaining an acquittal); United
    States v. Ellison, 
    798 F.2d 1102
    , 1106-09 (7th Cir. 1986), cert. denied, 
    479 U.S. 1038
    , 
    107 S. Ct. 893
    , 
    93 L. Ed. 2d 845
     (1987) (found both actual conflict
    and adverse effect when lawyer "testified" against defendant in a Rule 32
    hearing fending off allegations by defendant which would constitute
    malpractice); United States v. Andrews, 
    790 F.2d 803
    , 810-11 (10th Cir. 1986),
    cert. denied, 
    481 U.S. 1018
    , 
    107 S. Ct. 1898
    , 
    95 L. Ed. 2d 505
     (1987) (no actual
    conflict and no adverse effect when court refused to allow attorney to
    withdraw from representation and start medical school); Roach v. Martin, 
    757 F.2d 1463
    , 1479-80 (4th Cir.), cert. denied, 
    474 U.S. 865
    , 
    106 S. Ct. 185
    , 
    88 L. Ed. 2d 154
     (1985) (no actual conflict when attorney was being investigated by
    state bar while representing defendant).
    
                                         15
    two issues left open by a previous multiple representation case:
    
    whether a trial judge must sua sponte inquire into the propriety of
    
    multiple representation, and "whether the mere possibility of a
    
    conflict of interest warrants the conclusion that the defendant was
    
    deprived of his right to counsel."         Cuyler, 446 U.S. at 343, 100
    
    S.Ct. at 1716.   In stating its Sixth Amendment standard that has
    
    been quoted above, the Court said:
    
          Glasser established that unconstitutional multiple
          representation is never harmless error. Once the Court
          concluded that Glasser's lawyer had an actual conflict of
          interest, it refused "to indulge in nice calculations as
          to the amount of prejudice" attributable to the conflict.
          The conflict itself demonstrated a denial of the "right
          to have the effective assistance of counsel." Thus, a
          defendant who shows that a conflict of interest actually
          affected the adequacy of his representation need not
          demonstrate prejudice in order to obtain relief. But
          until a defendant shows that his counsel actively
          represented conflicting interests, he has not established
          the constitutional predicate for his claim of ineffective
          assistance.
    
    Cuyler, 446 U.S. at 349-50, 100 S.Ct. at 1719 (citations and
    
    footnote omitted).     While some sentences in this paragraph do not
    
    refer explicitly to multiple representation, they must be read in
    
    the context of the first and last sentences of the paragraph, which
    
    do.   In particular, the last sentence, which actually states the
    
    standard,   requires    that   counsel    have   "actively       represented"
    
    conflicting   interests,   not   that    he   have   "actively    been   in a
    
    conflict situation."    Further, the two cases cited as authority in
    
    this section, Glasser v. United States, 
    315 U.S. 60
    , 
    62 S. Ct. 457
    
    (1942), and Holloway v. Arkansas, 
    435 U.S. 475
    , 
    98 S. Ct. 1173
    
    (1978), were multiple representation cases, and the footnote at the
    
    end of the paragraph cites a law review article about multiple
    
                                       16
    representation:         Comment,    Conflict       of   Interests       in   Multiple
    
    Representation     of    Criminal    Co-Defendants,        68   J.      Crim.   L.   &
    
    Criminology 226, 231-32 (1977).
    
                 Justice Marshall's separate opinion in Cuyler, written to
    
    challenge the adverse effect prong of the test, endeavors to define
    
    "conflict of interests."          446 U.S. at 355 n.3, 100 S.Ct. at 1722
    
    n.3 (Marshall, J., concurring in part and dissenting in part).                       In
    
    each of the ethics codes to which he refers, Justice Marshall cites
    
    only the canon or rule dealing with multiple client representation.
    
                 Four later Supreme Court cases have clarified the scope
    
    of Cuyler.    In the first, Wood v. Georgia, 
    450 U.S. 261
    , 
    101 S. Ct. 1097
     (1981),     three    employees     of    an   adult   movie     theater     were
    
    prosecuted for distributing obscenity.              The theater paid for their
    
    representation and also agreed to pay their fines.                           When the
    
    theater broke its promise and did not pay, the employees' probation
    
    was revoked and the employees were incarcerated. The Supreme Court
    
    granted certiorari to examine whether a state could imprison a
    
    probationer for not paying a fine, but after viewing the record,
    
    the Court     remanded    the    case   for   consideration        of    a   possible
    
    conflict of interest.11         Id. at 273-74, 101 S.Ct. at 1104.
    
                 In Wood, the Court was troubled by the lawyer's apparent
    
    decision to undertake a strategy that benefitted the theater at the
    
    expense of the employees.           The opinion noted that "their [the
    
    
    
          11. Wood was technically decided under the due process clause rather
    than the Sixth Amendment, because only the former provision sets
    constitutional bounds on parole revocation hearings. The Court analogized
    appellants' rights in Wood to those in Cuyler, however.
    
                                            17
    employees'] counsel has acted as the agent of the employer," id. at
    
    267, 101 S.Ct. at 1101; charged "that the employer and petitioners'
    
    attorney were seeking to create a test case," id.; and concluded
    
    its conflict discussion by noting that "if petitioners' counsel was
    
    serving the employer's interest in setting a precedent, this
    
    conflict in goals may well have influenced the decision of the
    
    trial court . . . ."              Id. at 268, 101 S.Ct. at 1102.                  While the
    
    opinion does not say whether the lawyer formally represented the
    
    theater      or   not,      the   lawyer     was   at   least        in    the   functional
    
    equivalent        of    a   joint       representation.         "[P]etitioners          were
    
    represented by their employer's lawyer, who may not have pursued
    
    their interests single-mindedly."                  Id. at 271-72, 101 S.Ct. at
    
    1103.   Both the theater and the employees expected him to advance
    
    their interests, yet to serve one might require him to fail the
    
    others, while doing nothing could harm both.
    
                  The second case, Nix v. Whiteside, 
    475 U.S. 157
    , 
    106 S. Ct. 988
     (1986) placed an outer bound on Cuyler.                                Whiteside's
    
    counsel      conditioned          his     representation        on        Whiteside's      not
    
    committing perjury.           Id. at 161, 106 S.Ct. at 991.                 The Court held
    
    that a "conflict" between a lawyer's ethical obligation not to aid
    
    perjury and a client's desire to commit perjury "is not remotely
    
    the   kind    of       conflict     of    interests     dealt    with       in    Cuyler    v.
    
    Sullivan."        Id. at 176, 106 S.Ct. at 999.             It noted that "[i]f a
    
    'conflict'        between     a   client's    proposal     and       counsel's      ethical
    
    obligation gives rise to a presumption that counsel's assistance
    
    was prejudicially ineffective, every guilty criminal's conviction
    
    
                                                 18
    would be suspect if the defendant had sought to obtain an acquittal
    
    by illegal means."           Id.
    
                The      third     case,      Strickland       v.       Washington,      supra,
    
    addressed Cuyler while defining how much prejudice a defendant must
    
    show in the usual ineffectiveness case.                       The Court stated that
    
    Cuyler "is not quite" a "per se rule of prejudice," and that
    
    "[p]rejudice is presumed only if the defendant demonstrates that
    
    counsel 'actively represented conflicting interests' and that 'an
    
    actual   conflict       of    interest      adversely         affected       his   lawyer's
    
    performance.'" 446 U.S. at 692, 104 S.Ct. at 2067 (quoting Cuyler,
    
    446 U.S. at 350, 348, 100 S.Ct. at 1719, 1718).                              The language
    
    Strickland excerpted from Cuyler comes directly from the passage
    
    reproduced earlier, in which the Court discussed a lawyer who
    
    "actively represented" multiple parties.
    
                Contrary to Beets's argument, Strickland did not say that
    
    prejudice   is    presumed         whenever      counsel      breaches       the   duty   of
    
    loyalty.       See      Beets,     986     F.2d    at    1493       (Higginbotham,        J.,
    
    concurring).           Strickland        mentioned      the     duty    of    loyalty      to
    
    underscore the general significance of conflicts of interest.                             446
    
    U.S. at 692, 104 S.Ct. at 2067.                    To define when that problem
    
    becomes serious enough to attain constitutional import, or, put
    
    differently, when it triggers the "not quite per se rule of
    
    prejudice,"      the    Court      quoted    a    section      of    Cuyler    discussing
    
    multiple representations.            Id.
    
                The last case in this series is Burger v. Kemp, 
    483 U.S. 776
    , 
    107 S. Ct. 3114
     (1987), in which the Court applied the Cuyler
    
    
                                                19
    analysis to determine whether a habeas corpus petitioner's case had
    
    been adversely affected by an "actual conflict" arising out of his
    
    attorney's having participated with a law partner in the defense of
    
    a co-defendant. Both men had been charged with capital murder, and
    
    each defendant contended that he had less responsibility and was
    
    less culpable than his co-defendant. Nevertheless, the Court found
    
    no actual conflict and no adverse effect of the assumed multiple
    
    representation on Burger's defense.         Burger reinforces the notion
    
    that not every potential conflict, even in multiple representation
    
    cases, is an "actual" one for Sixth Amendment purposes.
    
               In sum, the Supreme Court has not expanded Cuyler to
    
    reach the ethical violations alleged in Beets's case.              Cuyler, a
    
    multiple representation case, restated a rule developed in multiple
    
    representation cases.        Nix declined to extend that rule to all
    
    conflicts between client and lawyer.         Wood simply recognized that
    
    some third-party fee arrangements can develop into the functional
    
    equivalent of multiple representation.           Strickland cited Cuyler's
    
    language   dealing    with   the   impact   of   multiple   representation.
    
    Several Justices have acknowledged this apparent limitation of
    
    Cuyler.    See Illinois v. Washington, 
    469 U.S. 1181
    , 
    105 S. Ct. 442
    
    (1984) (White, J., dissenting from denial of certiorari).12 To this
    
    
          12.   Justice White's opinion, joined by Justices Burger and Rehnquist,
    pointed out the conflict in the resolution of this issue between the Illinois
    Supreme Court, Illinois v. Washington, 
    101 Ill. 2d 104
    , 
    461 N.E.2d 393
     (1984)
    (holding that Cuyler's conflict of interest standard is limited to the
    multiple representation context), and numerous federal courts. See, e.g.,
    Westbrook v. Zant, 
    704 F.2d 1487
    , 1498-99 (11th Cir. 1983), overruled on other
    grounds, Peek v. Kemp, 
    784 F.2d 1479
    , 1494 (11th Cir. 1986) (Cuyler not
    limited to the multiple representation context); United States v. Harris, 
    701 F.2d 1095
    , 1099 (4th Cir.), cert. denied, 
    463 U.S. 1214
    , 
    103 S. Ct. 3554
    , 
    77 L. Ed. 2d 1400
     (1983); United States v. Knight, 
    680 F.2d 470
    , 471 (6th Cir.
    
                                         20
    day, however, the uncertainty remains.13             The dissent shares this
    
    uncertainty, arguing on one hand that Cuyler is not limited to
    
    multiple or serial representation cases but acknowledging that it
    
    should not apply to most breaches of legal ethics.
    
               B.     Whether Cuyler Should Apply to Conflicts
                     Between an Attorney's Personal Interest
                            and his Client's Interest
    
               The Sixth Amendment assures defendants of legal counsel
    
    whose   reasonably     effective    assistance       permits   a   fair   trial.
    
    Strickland, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
     (1984); Nix v. Whiteside,
    
    
    475 U.S. 157
    , 
    106 S. Ct. 988
     (1986).             In the absence of controlling
    
    authority, we must decide whether, when a lawyer places his self-
    
    interest above that of the client, the resulting conflict deserves
    
    Cuyler's "not quite per se" rule of prejudice or Strickland's more
    
    deferential standard of attorney competence.                   Which of these
    
    standards better promotes a fair trial?
    
               Those who seek to apply the Cuyler standard will argue
    
    that the attorney's duty of loyalty to the client is of fundamental
    
    importance.     E.g., Strickland, 466 U.S. at 692, 104 S.Ct. at 2067.
    
    Compromise      that   loyalty,    and    the    attorney   has    negated   the
    
    
    1982) (per curiam), cert. denied, 
    459 U.S. 1102
    , 
    103 S. Ct. 723
    , 
    74 L. Ed. 2d 950
    (1983); Ware v. King, 
    694 F.2d 89
    , 92 (5th Cir. 1982) (per curiam), cert.
    denied, 
    461 U.S. 930
    , 
    103 S. Ct. 2092
    , 
    77 L. Ed. 2d 302
     (1983); Alexander v.
    Housewright, 
    667 F.2d 556
    , 558 (8th Cir. 1981); United States v. Hearst, 
    638 F.2d 1190
    , 1193 (9th Cir.), cert. denied, 
    451 U.S. 938
    , 
    101 S. Ct. 2018
    , 
    68 L. Ed. 2d 325
     (1981).
    
          13.   See United States ex rel. Duncan v. O'Leary, 
    806 F.2d 1307
    , 1312
    (7th Cir. 1986), cert. denied, 
    481 U.S. 1041
    , 
    107 S. Ct. 1982
    , 
    95 L. Ed. 2d 822
    (1987) ("The precise scope of the category of claims to which the Cuyler
    standard applies has not been definitively stated by the Supreme Court");
    Hayes v. Lockhart, 
    766 F.2d 1247
    , 1250 (8th Cir.), cert. denied, 
    474 U.S. 922
    ,
    
    106 S. Ct. 256
    , 
    88 L. Ed. 2d 263
     (1985) ("'[T]here is no litmus test to determine
    whether an actual conflict exists'") (citation omitted).
    
                                             21
    assumption     underlying       Strickland's   deferential     approach    to
    
    reasonable professional conduct, which is that the attorney has the
    
    best interests of the client at heart.           In order to satisfy the
    
    Sixth Amendment, any breach of the duty of loyalty must meet the
    
    severe standard of "not quite per se" prejudice.
    
                That position has some appeal, but in our view, it
    
    oversimplifies legal ethics and would obscure Sixth Amendment
    
    doctrine. Not all conflicts of interest that affect the attorney's
    
    "duty of loyalty" have the same consequences, and they are not all
    
    suited to Cuyler's stringent rule.14           Even the dissent does not
    
    advocate applying the Cuyler rule to all breaches of the duty of
    
    loyalty.     The dissent contents itself with arguing that a media
    
    rights     contract   and   a    few   other   breaches   have   a   "highly
    
    particularized and focused source" that justified application of
    
    Cuyler.15
    
    
          14.   See Johnston v. Mizell, 
    912 F.2d 172
    , 177 (7th Cir. 1990), cert.
    denied, 
    498 U.S. 1094
    , 
    111 S. Ct. 982
     (1991) ("Cuyler presumption of prejudice
    cannot be applied blindly to every ineffective assistance of counsel claim
    involving a conflict of interest"); Williams v. Calderon, 
    52 F.3d 1465
    , 1473,
    
    1995 WL 150857
     at *5 (9th Cir. 1995) (Cuyler does not extend to defendant's
    claim that pro bono attorney was burdened with impermissible conflict under
    Cuyler because payment for additional investigative and psychiatric services
    would have had to come out of lawyer's own pocket); United States v. Zackson,
    
    6 F.3d 911
    , 919-22 (2nd Cir. 1993) (Strickland, and not Cuyler, is the
    appropriate test when defendant alleged counsel's busy schedule created
    conflict in his representation of the case; this is not the kind of conflict
    subject to Cuyler rule).
                Indeed, prior to Cuyler, a significant majority of the circuits
    precluded habeas relief absent a showing of prejudice arising from a conflict
    between the interests of the defendant and his attorney. See Gregory S.
    Sarno, Annotation, Circumstances Giving Rise to Prejudicial Conflict of
    Interests Between Criminal Defendant and Defense Counsel, 53 A.L.R. Fed. 409,
    § 3 (1981) (Second, Third, Fourth, Sixth, Seventh, and Ninth Circuits required
    prejudice whereas the Fifth, Eighth, and D.C. Circuits did not).
    
          15.   The dissent's "rule" reserves Cuyler at least for attorney-client
    conflicts based on media rights contracts, contingent fee arrangements and
    conflicts arising from an attorney's involvement in criminal conduct with his
    
                                           22
               1.     The scope of the "duty of loyalty" is ambiguous.
    
               Founding constitutional doctrine on the lawyer's "duty of
    
    loyalty" is an enterprise set in shifting sand.          The term "duty of
    
    loyalty," narrowly defined, refers to an attorney's responsibility
    
    to place his client's interest ahead of his own interest or, in the
    
    case of multiple representation, not to sacrifice one client's
    
    interest for the other's.      See, e.g., ABA Annotated Model Rules of
    
    Professional Conduct, Rule 1.7 cmt. (1992).              But even on this
    
    level, legal ethics rules generally distinguish between the duty of
    
    loyalty as measured against an attorney's self-interest and cases
    
    of multiple representation.        More troublesome, the boundaries of
    
    the duty of loyalty are elastic; they potentially subsume or
    
    overlap a number of other ethical responsibilities to the client.
    
               Taking the narrow sense of the duty of loyalty, the
    
    canons and rules of ethics treat separately conflicts arising from
    
    the attorney's self-interest and those involving multiple client
    
    representation.        See,   e.g.,   ABA   Annotated     Model   Rules    of
    
    Professional Conduct, Rule 1.7:
    
         Conflict of interest:       General Rule
    
         (a)   A lawyer shall not represent a client if the
               representation of that client will be directly
               adverse to another client, unless . . .
    
         (b)   A lawyer shall not represent a client if the
               representation of that client may be materially
               limited by the lawyer's responsibilities to another
    
    
    client. The dissent, however, makes no effort to explain why these situations
    necessarily involve a greater constitutional risk than other ethical
    conflicts. Indeed, in light of the fact that hardly any criminal conviction
    has ever been reversed because of counsel's media rights contract, n.19 infra,
    the dissent's selection seems extraordinarily result-oriented.
    
                                          23
                client or to a third person, or by the lawyer's own
                interests unless . . . .16
    
                The reason for distinguishing multiple representation
    
    conflicts from those involving self-interest is clear.                   When
    
    multiple representation exists, the source and consequences of the
    
    ethical    problem   are    straightforward:    "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."           Beets v. Collins, 986 F.2d at 1492,
    
    (Higginbotham, J., concurring). "An attorney cannot properly serve
    
    two masters."    United States v. Locascio, 
    6 F.3d 924
    , 933 (2nd Cir.
    
    1993).    Conflicts between a lawyer's self-interest and his duty of
    
    loyalty to the client, however, fall along a wide spectrum of
    
    ethical   sensitivity      from   merely   potential   danger   to   outright
    
    criminal misdeeds.      Sources of potential conflict, from among the
    
    manifold variations possible, include:          matters involving payment
    
    of fees and security for fees; doing business with a client; the
    
    use of information gained while representing a client; a lawyer's
    
    status as a witness; and a lawyer's actions when exposed to
    
    malpractice claims. Ethical rules typically separate each of these
    
    
    
    
          16.   See also, ABA Model Rules of Professional Conduct, Rule 1.8,
    "Conflict of interests: prohibited transactions," which list ten separate
    categories of "prohibited" transactions between an attorney and client, only
    two of which, §§ (f) and (g) deal respectively with a lawyer's receipt of
    compensation for representing a client from a third party and a lawyer's duty
    in regard to settlement when representing two or more clients in a civil or
    criminal proceeding. See generally, Developments in the Law -- Conflicts of
    Interest in the Legal Profession, 94 Harv. L. Rev. 1244 (1981). For
    simplicity, the ABA Model Rules will be referenced in this discussion because
    they reflect prevailing standards in most United States jurisdictions. See
    also Raymond L. Wise, Legal Ethics 73-76 (1979 Supp.).
    
                                          24
    problems, for each type deserves particular consideration.     See,
    
    e.g., ABA Annotated Model Rules of Professional Conduct, Rule 1.8.
    
               Ultimately, the duty of loyalty in its broad sense
    
    resonates against the lawyer's obligation to perform competent,
    
    effective work.    The ABA Model Professional Rules express this
    
    overlap:
    
              The lawyer's own interests should not be permitted
         to have adverse effect on representation of a client.
         For example, a lawyer's need for income should not lead
         the lawyer to undertake matters that cannot be handled
         competently and at a reasonable fee. See Rules 1.1 and
         1.5.
    
    ABA Model Rule 1.7 cmt.     Rule 1.1 states the lawyer's duty of
    
    competence, Rule 1.5 the duty to charge a reasonable fee.    If the
    
    lawyer stints on his work or is not sufficiently diligent for a
    
    client either because he is not well paid by that client or because
    
    of an extrinsic influence, he has potentially breached the duty of
    
    loyalty. Where the obligation to a single client is concerned, the
    
    duties of loyalty and competence are intertwined.
    
               2.   The effects of breaching the duty of loyalty are
                    clearest in multiple representation cases.
    
               Because multiple defendant representation poses a unique,
    
    straightforward danger of conflict, the Cuyler rule of "not quite
    
    per se" prejudice makes eminent sense.   A defendant whose attorney
    
    "actively represented conflicting interests" has had no real lawyer
    
    secured to him by the Sixth Amendment.   As Justice Powell put it in
    
    Cuyler, "[t]he 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
    
    
                                     25
    467).     Moreover, this type of conflict may be addressed by a
    
    prophylactic     rule,     whereby    a    court,      made    aware    of   multiple
    
    representation, can insure early in the criminal proceeding that
    
    the   client    has     been    informed        of   the   pitfalls    of    multiple
    
    representation and knowingly waived any conflict.                  See, e.g., Fed.
    
    R. Crim. P. 44(c).         As Strickland pointed out, "Given . . . the
    
    ability of trial courts to make early inquiry in situations likely
    
    to give rise to conflicts, . . . it is reasonable for the criminal
    
    justice   system      to   maintain    a    fairly     rigid    rule    of   presumed
    
    prejudice for conflicts of interest."                466 U.S. at 692, 
    104 S. Ct. 2067
    .
    
               But only in the multiple representation context is the
    
    duty of loyalty so plain.             Only then is the risk of harm high
    
    enough to employ a near-per se rule of prejudice.17                    While loyalty
    
    may be implicated in other judgments a lawyer makes, in no other
    
    category of conflicts is the risk of prejudice so certain as to
    
    justify an automatic presumption. See Cuyler, 446 U.S. at 349, 100
    
    S.Ct. at 1719.         When the duty of loyalty is challenged by an
    
    attorney's     self-interest,      the     range     of    possible    breaches,   as
    
    previously     shown,      is   virtually        limitless.      Likewise,      their
    
    consequences on the quality of representation range from wholly
    
    benign to devastating.          Compare United States v. Horton, 
    845 F.2d 1414
    , 1418-21 (7th Cir. 1988) with United States v. Ellison, 798
    
    
    
          17.   Although we have no occasion to discuss the question here, a
    powerful argument can be made that a lawyer who is a potential co-defendant
    with his client is burdened by a "multiple representation" conflict that ought
    to be analyzed under Cuyler.
    
                                               
    26 F.2d 1102
    , 1106-09 (7th Cir. 1986) and United States v. Stoia, 
    22 F.3d 766
    , 769-70 (7th Cir. 1994).         Applying a near-per se rule of
    
    prejudice to this spectrum of potential ethical problems is a
    
    draconian remedy.
    
                 3.     Strickland best addresses attorney self-interest
                        conflicts.
    
                 In stark contrast to multiple representation situations,
    
    there   is   little    meaningful   distinction   between   a   lawyer   who
    
    inadvertently fails to act and one who for selfish reasons decides
    
    not to act.       The "conflict" between the lawyer's self-interest and
    
    that of his client is not a real conflict in the eyes of the law.
    
    Rather than being immobilized by conflicting ethical duties among
    
    clients, a lawyer who represents only one client is obliged to
    
    advance the client's best interest despite his own interest or
    
    desires.     Even though his disloyalty does not leave the client
    
    bereft of counsel, it may well impinge on the effectiveness of his
    
    representation.
    
                 A few illustrations demonstrate the persistent overlap
    
    between self-interested duty of loyalty problems and attorney
    
    effectiveness:
    
         (1)     An attorney represents a client charged with white
                 collar crime.    His fee will be paid from the
                 profits of the business.     The attorney has an
                 incentive to plea bargain rather than risk the
                 business's closing if the client is unsuccessfully
                 defended.
    
         (2)     An attorney has neglected to file a competency
                 motion. To cover up the mistake, it is alleged, he
                 tardily files an inadequate motion.
    
    
    
    
                                         27
           (3)    An   attorney  undertakes   client  representation
                  despite an overabundance of work. He then neglects
                  to interview a potential alibi witness.
    
           (4)    An attorney is a potential witness for a client he
                  has represented in the past. Rather than testify,
                  however, he continues to represent the client in
                  the case.
    
    See also cases cited in n.10, supra.             The duty of loyalty and other
    
    ethical rules have arguably been tested or breached in each of
    
    these cases, but each also raises a question of lawyer competency.
    
                  Because the scope of the duty of loyalty with respect to
    
    attorney      self-interest         is   inherently   vague   and   overlaps      with
    
    professional       effectiveness,           Strickland      ought    to     set    the
    
    constitutional norm of adequate representation.                     The Court has
    
    already hinted at such a possibility:
    
                Under the Strickland standard, breach of an ethical
           standard does not necessarily make out a denial of the
           Sixth Amendment guarantee of assistance of counsel.
    
    Nix v. Whiteside, 475 U.S. at 166, 106 S.Ct. at 993.                      Nix invoked
    
    Strickland, not Cuyler, as the benchmark for judging ethical
    
    violations.      In so doing, the Court hesitated "to narrow the wide
    
    range    of    conduct    acceptable         under    the   Sixth    Amendment      so
    
    restrictively      as    to    constitutionalize       particular    standards      of
    
    professional conduct and thereby intrude into the state's proper
    
    authority. . . ."             Id.    A standard that requires a showing of
    
    prejudice and affords appropriate latitude to professional judgment
    
    best addresses ethical breaches under the Sixth Amendment.
    
                  Strickland lists other powerful reasons supporting its
    
    more    flexible   test       of    constitutional     competence.        Strickland
    
    declined to "exhaustively define obligations of counsel [or] form
    
                                                28
    a checklist for judicial evaluation of attorney performance."                      466
    
    U.S.    at    688,    104    S.Ct.   at   2065.        The   Court   stated       that
    
    "[p]revailing norms of practice as reflected in American Bar
    
    Association standards . . . are guides to determining what is
    
    reasonable, but they are only guides."            Id.     As Strickland astutely
    
    warned,      "[a]ny   such    set    of   rules   would      interfere     with   the
    
    constitutionally protected independence of counsel and restrict the
    
    wide latitude counsel must have in making tactical decisions." Id.
    
    at 689, 104 S.Ct. at 2065.           Indeed,
    
           [T]he existence of detailed guidelines for representation
           could distract counsel from the overriding mission of
           vigorous advocacy of the defendant's cause. Moreover,
           the purpose of the effective assistance guarantee of the
           Sixth Amendment is not to improve the quality of legal
           representation, although that is a goal of considerable
           importance to the legal system. The purpose is simply to
           ensure that criminal defendants receive a fair trial.
    
    Id. at 689, 104 S.Ct. at 2065.
    
                  These    considerations,         which    prompted     the     Court's
    
    reluctance to micromanage standards of professional and ethical
    
    behavior, apply with full force to the duty of loyalty with respect
    
    to attorney self-interest. The interests of both the defendant and
    
    society are served by a standard that, as far as possible, does not
    
    straitjacket counsel in a stifling, redundant federal code of
    
    professional conduct. Moreover, the purpose of the Sixth Amendment
    
    is not primarily to police attorneys' ethical standards and create
    
    a constitutional code of professional conduct; its purpose is to
    
    assure a fair trial based on competent representation.                      Finally,
    
    while Strickland does state that counsel owes the client a duty to
    
    avoid conflicts of interest (citing Cuyler), this is just one duty
    
                                              29
    listed among others -- the duties to advocate the defendant's
    
    cause, to consult with and keep the defendant informed, and to
    
    employ skill and knowledge on the defendant's behalf.               The Court
    
    emphasizes these as an unexhaustive list of the basic duties of
    
    counsel.    Id. at 688, 104 S.Ct. at 2065.          To list these duties is
    
    thus the starting point, not the conclusion, of constitutional
    
    analysis.    We are firmly persuaded that it is most consistent with
    
    Strickland to assess the duty of loyalty pitted against a lawyer's
    
    self-interest under the Strickland test.18
    
                4.     Cuyler v. Strickland
    
                If Cuyler's more rigid rule applies to attorney breaches
    
    of   loyalty       outside     the     multiple    representation    context,
    
    Strickland's       desirable     and    necessary    uniform   standard    of
    
    constitutional         ineffectiveness            will   be     challenged.
    
    Recharacterization of ineffectiveness claims to duty of loyalty
    
    claims will be tempting because of Cuyler's lesser standard of
    
    prejudice.       See United States v. Stoia, 
    22 F.3d 766
    , 769-70 (7th
    
    Cir. 1994); United States v. McLain, 
    823 F.2d 1457
    , 1463-64 (11th
    
    Cir. 1987).        A blurring of the Strickland standard is highly
    
    undesirable.      As a result of the uncertain boundary between Cuyler
    
    and Strickland, the focus of Sixth Amendment claims would tend to
    
    shift mischievously from the overall fairness of the criminal
    
    
    
          18.   There is another reason why multiple representation cases are more
    amenable to Cuyler's fairly rigid rule of presumed prejudice. They are
    amenable to prophylactic rules requiring court oversight of potential
    conflicts. Self-interested duty of loyalty problems ordinarily defy
    prophylactic treatment, suggesting appropriateness of a real prejudice
    standard for after-the-fact review.
    
                                            30
    proceedings -- the goal of "prejudice" analysis -- to slurs on
    
    counsel's integrity -- the "conflict" analysis.                Confining Cuyler
    
    to multiple representation claims poses no similar threats to
    
    Strickland.   The dissent, of course, purports to avoid unwarranted
    
    expansion of Cuyler by confining its scope, apart from multiple
    
    representation    cases,      to    instances      involving    "extraordinary"
    
    attorney-client conflicts "stemming from a highly particularized
    
    and powerful source." This open-ended, though hyperbolic, language
    
    is bereft of any animating principle and, as such, is unfortunately
    
    guaranteed to spawn far more litigation that it resolves.
    
               For   all   these       reasons,   we   conclude    that   Strickland
    
    governs the issue whether Andrews's media rights contract and
    
    status as a witness resulted in the denial of constitutionally
    
    adequate counsel to Beets.
    
                             C.    Strickland Applied
    
               To prevail under the Strickland standard, Beets must show
    
    that her attorney's performance fell below an objective standard of
    
    reasonableness and that it prejudiced the defense, undermining the
    
    reliability of the proceeding.          Strickland prejudice, as has been
    
    noted, considers the overall result of the prosecution.                    Beets
    
    alleged two ethical breaches by Andrews, the taking of a media
    
    rights contract in full satisfaction of his fee and his failure to
    
    withdraw and testify as a material witness.             Although these lapses
    
    are alleged to interact, they may conveniently be discussed in
    
    turn.   It is important to note that although the dissent would not
    
    approve the following discussion of Andrews's competence under
    
    
                                            31
    Strickland, our colleagues do agree that if Strickland sets the
    
    Sixth Amendment standard here, there is no constitutional violation
    
    because Beets was not prejudiced by Andrews's conduct as her
    
    counsel.
    
                1.     Media rights contract.
    
                This court joins other courts, scholars and organizations
    
    of the bar who have uniformly denounced the execution of literary
    
    and media rights fee arrangements between attorneys and their
    
    clients during the pendency of a representation.19               The Texas Code
    
    of Professional Responsibility stated at the time of this trial:
    
         Prior to the conclusion of all aspects of the matter
         giving rise to his employment, a lawyer shall not enter
         into any arrangement or understanding with a client by
         which he acquires any interest in publication rights with
         respect to the subject matter of his employment or
         proposed employment.
    
    Supreme    Court   of   Texas,    Code    of   Professional   Responsibility,
    
    DR5-104(B) (1982).        See also ABA Model Rules of Professional
    
    Conduct, Rule 1.8(d).        Succinctly, a media rights contract is
    
    offensive because it may encourage counsel to misuse the judicial
    
    process for the sake of his enrichment and publicity-seeking, and
    
    it necessarily trades on the misery of the victim and his family.
    
                Perhaps     because    of    the   widely   shared    professional
    
    disapproval of media rights contracts, few cases challenging them
    
    
    
          19.   See United States v. Hearst, 
    638 F.2d 1190
     (9th Cir. 1980) cert.
    denied, 
    451 U.S. 938
    , 
    101 S. Ct. 2018
    , 
    68 L. Ed. 2d 325
     (1981); Mark R. McDonald,
    Literary-Rights Fee Arrangements in California: Letting the Rabbit Guard the
    Carrot Patch of Sixth Amendment Protection and Attorney Ethics?, 24 Loy. L.A.
    L. Rev. 365 (1991); American Bar Ass'n Standards for Criminal Justice,
    Standard 4-3.4 (2d ed. 1980); American Bar Ass'n, Model Code of Professional
    Responsibility, DR 5-104(B); American Bar Ass'n, Model Rules of Professional
    Conduct, Rule 1.8(d).
    
                                             32
    have arisen.      Although the cases have been judged under various
    
    legal standards, hardly any convictions have been reversed for a
    
    pernicious influence of such contracts on counsel's effectiveness.20
    
                  So it must be here.    Notwithstanding Andrews's apparent
    
    breach   of    his    ethical   obligations,   this   court   sits   not   to
    
    discipline counsel but to determine whether Beets was thereby
    
    deprived of a fair trial.         The state has the duty to punish an
    
    attorney for unethical conduct.        For reasons not disclosed in the
    
    record, the state declined to discipline Andrews for this fee
    
    arrangement.         While the media rights contract posed a serious
    
    
    
          20.   See Buenoano v. Singletary, 
    963 F.2d 1433
    , 1438-39 (11th Cir.
    1992) (remanded for evidentiary hearing on whether fee arrangement that gave
    first $250,000 of book and movie contract to the attorney created an actual
    conflict and an adverse effect); United States v. Marrera, 
    768 F.2d 201
    , 205-
    09 & n.6 (7th Cir. 1985), cert. denied, 
    475 U.S. 1020
    , 
    106 S. Ct. 1209
    , 
    89 L. Ed. 2d 321
     (1986) (found no actual conflict and no adverse effect in fee
    arrangement involving movie rights); United States v. Hearst, 
    638 F.2d 1190
    ,
    1193-94 (9th Cir. 1980), cert. denied, 
    451 U.S. 938
    , 
    101 S. Ct. 2018
    , 
    68 L. Ed. 2d 325
     (1981) (remanded for a hearing on whether F. Lee Bailey's book
    contract with Patty Hearst created an actual conflict of interest); Wojtowicz
    v. United States, 
    550 F.2d 786
    , 793 (2d Cir.), cert. denied, 
    431 U.S. 972
    , 
    97 S. Ct. 2938
    , 
    53 L. Ed. 2d 1071
     (1977) (Pre-Cuyler case found no prejudice from
    movie rights deal); Ray v. Rose, 
    535 F.2d 966
    , 973-75 (6th Cir.), cert.
    denied, 
    429 U.S. 1026
    , 
    97 S. Ct. 648
    , 
    50 L. Ed. 2d 629
     (1976) (Pre-Cuyler case
    found no prejudice from media rights contract with attorney); Maxwell v.
    Superior Court, 
    30 Cal. 3d 705
    , 
    180 Cal. Rptr. 177
    , 
    639 P.2d 248
    , 257 (Cal.
    1982) (publication rights contract between attorney and defendant does not per
    se render counsel ineffective and conflicts of interest created thereby are
    waivable); People v. Bonin, 
    47 Cal. 3d 808
    , 835, 
    254 Cal. Rptr. 298
    , 313-14, 
    765 P.2d 460
    , 475 (Cal. 1989), cert. denied, 
    494 U.S. 1039
    , 
    110 S. Ct. 1506
    , 
    108 L. Ed. 2d 641
     (1990) (no reversible error in literary rights fee arrangement);
    People v. Gacy, 
    125 Ill. 2d 117
    , 134, 
    530 N.E.2d 1340
    , 1347 (1988), cert.
    denied, 
    490 U.S. 1085
    , 
    109 S. Ct. 2111
    , 
    104 L. Ed. 2d 671
     (1989) (no conflict of
    interest when attorney rejected offer by defendant to grant attorney book
    rights); Stafford v. State, 
    669 P.2d 285
    , 296-97 (Okla.Crim.App.) cert.
    granted and judgment vacated, 
    467 U.S. 1212
    , 
    104 S. Ct. 2652
    , 
    81 L. Ed. 2d 359
    (1984) (no actual conflict or adverse effect from publication rights
    contract); People v. Corona, 
    80 Cal. App. 3d 684
    , 720-21, 
    145 Cal. Rptr. 894
    , 916
    (Cal.Ct.App. 1978) (found media rights conflict created an actual conflict and
    resulted in prejudice when "trial counsel assumed a position virtually adverse
    to his client and, totally unsupported by strategic or tactical
    considerations, took deliberate steps to thwart the development of viable
    defenses"); Dumond v. State, 
    743 S.W.2d 779
    , 784-85 (Ark. 1988) (no actual
    conflict in media rights contract between attorney and defendant and his
    wife).
    
                                         33
    potential    conflict    of   interest,   Beets   failed    to    show    how   it
    
    hindered Andrews's presentation of her defense or prejudiced her by
    
    rendering the result of her criminal prosecution fundamentally
    
    unreliable.      Beets has not asserted that Andrews manipulated the
    
    case to enhance publicity21 or that the contract generally clouded
    
    his good judgment.22      Beets has shown no actual influence of the
    
    media rights contract on the conduct of her defense.              In the state
    
    habeas proceedings, Andrews filed an affidavit in which he denied
    
    that the media rights contract affected his representation of
    
    Beets.     The state courts accepted this unrebutted statement.                 At
    
    the federal habeas hearing, Andrews's co-counsel Gilbert Hargrave
    
    was asked by the court, "was there any action taken by Mr. Andrews
    
    during the trial of this case that was in any way affected by the
    
    fact that he or his son had this book deal assignment?"                  Hargrave
    
    answered, "No.     If there is such an action, I'm not aware of it.
    
    I did not observe it."        The federal district court concluded:
    
         After further review of the record, the Court simply does
         not believe that the media rights contract affected
         Andrews' performance at any conscious level. (footnote
         omitted). There is, of course, no adverse effect where
         there was no effect at all.
    
                The finding of the district court is shielded by the
    
    clearly erroneous standard, while that of the state courts is
    
    entitled    to   the   presumption   of   correctness      in    habeas   corpus
    
    
    
          21.   See, e.g., United States v. Hearst, 
    638 F.2d 1190
    , 1193 (9th Cir.
    1980), cert. denied, 
    451 U.S. 938
    , 
    101 S. Ct. 2018
    , 
    68 L. Ed. 2d 325
     (1981);
    People v. Corona, 
    80 Cal. App. 3d 684
    , 
    145 Cal. Rptr. 894
     (Cal.Ct.App. 1978).
    
          22.   See United States v. Marrera, 
    768 F.2d 201
    , 207-08 (7th Cir.
    1985), cert. denied, 
    475 U.S. 1020
    , 
    106 S. Ct. 1209
    , 
    89 L. Ed. 2d 321
     (1986).
    
                                         34
    proceedings.    28 U.S.C. § 2254(d).    Those findings are that the
    
    media rights contract did not affect Andrews's conduct of Beets's
    
    defense.   Accordingly, whether or not the media rights contract
    
    represented deficient performance under Strickland, it did not
    
    prejudicially affect Beets's defense.
    
               Beets continues to assert, however, that because of the
    
    media rights contract, Andrews was motivated to continue his work
    
    as defense counsel when he should have withdrawn and testified as
    
    a material defense witness.   There is no support in the record for
    
    a finding concerning Andrews's subjective motivation, and none has
    
    been made by the state or federal courts.      Whether a lawyer-as-
    
    witness conflict existed, however, is a separate question to which
    
    we now turn.
    
               2.   Andrews as defense witness.
    
               Beets's theory that Andrews should have testified as a
    
    defense witness runs thus: if the jury believed that Andrews first
    
    suggested to her, eighteen months after Jimmy Don's disappearance,
    
    the possibility of claiming Jimmy Don's death benefits from the
    
    fire department, they could not find that Beets murdered Jimmy Don
    
    for remuneration.    Andrews was therefore a material exculpatory
    
    witness who was ethically required to withdraw and testify on her
    
    behalf.
    
               Both prongs of Strickland are at issue here:     whether
    
    Andrews's performance was unconstitutionally deficient and whether
    
    his failure to testify prejudiced the defense.      From an ethical
    
    standpoint, the lawyer-as-witness conflict, unlike the loyalty
    
    
                                    35
    conflict implicated by a media rights contract, is difficult to
    
    sort out.    This court may be guided but is not constitutionally
    
    bound by the Texas Code of Professional Responsibility effective at
    
    the date of trial:
    
         If, after undertaking employment in contemplated or
         pending litigation, a lawyer learns or it is obvious that
         he or a lawyer in his firm ought to be called as a
         witness on behalf of his client, he shall withdraw from
         the conduct of the trial and his firm, if any, shall not
         continue representation in the trial . . . .
    
    Supreme Court of Texas, Code of Professional Responsibility, DR 5-
    
    102(A) (1982) (emphasis added).        For reasons that are intuitively
    
    obvious, neither this nor similar provisions creates a bright-line
    
    ethical rule requiring withdrawal of a lawyer whenever he might be
    
    a witness for his client.23        The constitutional evaluation of a
    
    lawyer's decision whether to take the stand must also be flexible
    
    and must accord a heavy measure of deference to the lawyer's
    
    presumed professional capability. Strickland, 466 U.S. at 690, 104
    
    S.Ct. at 2066.    The essential inquiry is what sort of testimony he
    
    could have given in Beets's defense.
    
                Regarding the alleged advocate/witness conflict, the
    
    district court concluded that
    
    
    
          23.   The State contends that Roberts's testimony renders Andrews's
    potential testimony merely cumulative. The State asserts that where an
    attorney's testimony is not essential to the case, or would be merely
    cumulative of other evidence, there is no ethical duty placed upon Texas
    lawyers to withdraw from representation. See State Bar of Texas, Ethical
    Considerations on Code of Professional Responsibility, EC 5-10 (1972):
         It is not objectionable for a lawyer who is a potential witness to
         be an advocate if it is unlikely that he will be called as a
         witness because his testimony would be merely cumulative or if his
         testimony will relate only to an uncontested issue.
    
    
                                         36
              Andrews obviously should have known of his dual
         status as witness and advocate prior to trial. Andrews'
         dual status should have also been apparent to both the
         judge and district attorney as the trial unfolded. The
         Court is persuaded that the conflict never occurred to
         any of the participants.
    
                The court correctly found that the experienced trial
    
    court participants never perceived of Andrews as a potential
    
    defense witness.24     Perhaps it can be inferred from this collective
    
    unawareness that Andrews's exculpatory testimony was not highly
    
    significant.       But more important than speculation is a careful
    
    review of    the     state   court   and    federal   habeas   records,   which
    
    considerably diminishes the force of such potential testimony.
    
    
    
    
          24.   Nothing in the record suggests that the prosecutor or trial judge
    thought Andrews was a possible witness, and Andrews was never directly asked
    at the federal habeas hearing whether he should have been a defense witness.
    Andrews stated that he believed Betty Beets did not commit the murders, but
    she was at first reluctant to reveal the true facts to him because of the
    implication for her children's guilt. Andrews did not consider withdrawing as
    Beets's attorney:
         Q.     [McGlasson] It never occurred to you during the trial to
                withdraw, to move to withdraw or no one suggested that you
                should do that. Is that correct?
    
         A.     Well, it sort of occurred to me when I found out I wasn't
                being paid, but I didn't. It occurred to me, I'm going to
                have to be honest with you, but I didn't do it.
         Q.     But that was the only reason that it might have occurred to
                you is that you felt like you weren't receiving any payment.
                Is that correct?
         A.     Well, that's true.   I'm not doing this as a hobby.
         Q.     Right. There's no other reason you could think of during
                the trial why you should withdraw from this case. Is that
                correct?
         A.     From Ms. Stegner's case I did withdraw, there became a
                conflict. From Betty's case, I felt strongly toward this
                case and, no, I wouldn't let her down. Unh-unh.
    
         Q.     Right.   Okay.
         A.     Not even for money, and I didn't get any.
    
                                           37
              Beets relies heavily on an affidavit Andrews executed for
    
    the federal habeas proceeding stating that Beets
    
         had no idea whether she was entitled to benefits. She
         did not even know whether benefits existed. She did not
         know, for instance, whether her husband had been insured,
         or whether he had a pension, nor did she know whether she
         was the beneficiary. She did not know who, if anyone,
         may have been her husband's insurer or what amount he may
         have been insured for.
    
    Andrews Affidavit ¶ 7.   He also stated that he "was the one who
    
    mentioned the possibility that she may have been entitled to
    
    benefits."   Id. ¶ 10, Beets, 986 F.2d at 1487.
    
              Taken at face value, the affidavit suggests that Andrews
    
    would have been a helpful witness to Beets.   At the habeas hearing,
    
    however, his answers to questions posed by Beets's new attorney
    
    were not nearly as strong:
    
         Q.   Well, as your affidavit states, I believe she came
              to you looking for insurance benefits, but not with
              respect to the death of Jimmy Don Beets, rather for
              a home that had been burned. Is that correct?
    
         A.   [Andrews]   Well, I believe that was a mobile home.
    
         Q.   Correct. And it was your idea that she may have
              some benefits arising from this death and she had
              no idea of this. Is that correct?
    
         A.   Well, I thought it would be my idea and I think my
              obligation too because I don't know if it's in this
              affidavit or not, but her husband had been missing
              for quite some time and everybody in the community
              knew that. I knew Mr. Beets worked for the Fire
              Department.   It was through an investigation of
              myself and two lawyers here in Tyler that we
              realized that some benefits might be due and
              payable.
    
         Q.   Did Ms. Beets suggest this or did you in your
              initial conversations with her?
    
    
    
    
                                    38
          A.     Partner, that's been a long time ago. I believe
                 that I went into it first.   I couldn't swear to
                 that and I'm under oath.
    
          Q.     Well, in your affidavit you've stated that you knew
                 from your discussions with her that this was not
                 the case, that is, that the State could not prove
                 that she took the life of Mr. Beets for the purpose
                 of remuneration. Is that correct? Is that a true
                 statement?
    
          A.     What page are you reading from?
    
          Q.     That's Paragraph 14.
    
          A.     That was my thought and belief.         Yes, that's true
                 and correct.
    
          Q.     And just to reference Paragraph 7 of the affidavit,
                 you also stated that when you first questioned Ms.
                 Beets you quickly discovered that she had no idea
                 whether she was entitled to benefits and you've
                 sworn that that was a true statement.       Is that
                 correct?
    
          A.     That was a conclusion that               I    drew      by     my
                 conversation with Betty Beets.
    
    The   most   that   Andrews    could    persuade    the    jury      of    was     his
    
    "conclusion"    that   Betty   Beets    knew     nothing   of    her      husband's
    
    benefits when she visited him.25
    
                 Moreover, Andrews was not the only source of testimony
    
    that Beets was unaware of Jimmy Don's death benefits before she
    
    visited Andrews.       Beets    herself     so   testified      at   trial       under
    
    questioning by Andrews.         Had Andrews elicited this testimony
    
    believing or knowing it to be false, he would be exposed to a
    
    charge of suborning perjury.
    
    
    
    
          25.   Not only was Andrews's testimony limited to his inference about
    Beets's knowledge, but such testimony might well have led to incriminating
    cross-examination on his earlier dealings with Beets.
    
                                           39
                Additional testimony on Beets's ignorance of the death
    
    benefits    was   adduced    from   Bruce   Roberts.         The   only     part   of
    
    Andrews's proposed testimony that Bruce Roberts could not replicate
    
    was Andrews's affidavit statement that he had been the one to
    
    suggest to Beets that she seek her missing husband's insurance and
    
    pension benefits.     Beets vastly overrates the importance of this
    
    statement by Andrews, however. Because Andrews had no knowledge of
    
    Beets's activities from the time of the murder until nearly two
    
    years later when she met with him, he could not testify as to her
    
    knowledge of what benefits might be available. Both he and Roberts
    
    could only draw an inference or speculate upon her state of mind
    
    from their conversations.
    
                In any event, neither Andrews nor Roberts was the first
    
    witness to discuss Jimmy Don's death benefits with Beets.                         That
    
    distinction belonged to Denny Burris, who testified that when he
    
    visited her a few days after the disappearance, she inquired about
    
    benefits.     The fact of inquiry does not show that she knew
    
    beforehand of the existence of benefits, but her inquiry and
    
    discussion with Burris necessarily weakened the argument that, many
    
    months   later,    Beets's    attorneys     thought    she    knew       nothing   of
    
    potential death benefits. Neither Andrews nor Roberts could dispel
    
    a certain skepticism about that claim.
    
                Because   Andrews's     potential    testimony         for    Beets    was
    
    cumulative, he was not a necessary witness for her defense and did
    
    not face a substantial advocate/witness conflict.                  His failure to
    
    
    
    
                                          40
    withdraw and testify was not professionally unreasonable under
    
    Strickland.
    
                Not only was Andrews's potential exculpatory testimony
    
    largely cumulative, but when considered against the totality of
    
    evidence that Beets committed murder for remuneration, we cannot
    
    say that his failure to testify was prejudicial.                   Beets told her
    
    daughter Shirley Stegner, in connection with the murder of Beets's
    
    fourth husband, that she would have lost the trailer, which he
    
    owned, if they had simply divorced. Beets surreptitiously tried to
    
    obtain a life insurance policy on Jimmy Don only months before he
    
    disappeared.       After his death, Beets sold his boat and tried to
    
    sell and then to collect fire insurance proceeds on his separately
    
    owned trailer home. Chaplain Denny Burris testified that Beets was
    
    interested in Jimmy Don's benefits within days after he "went
    
    fishing."     All of this evidence, as the Texas Court of Criminal
    
    Appeals     noted,     was     pertinent        to   the   question      of   Beets's
    
    remunerative motive.         Finally, the cold, calculated nature of the
    
    crime and its cover-up strongly suggested that Beets had a motive
    
    beyond    simply     getting    rid   of    her      husband   after    one   year   of
    
    marriage.    She wanted it to appear that he died of natural causes.
    
    If he had merely disappeared, suspicion would have focused on her
    
    and she could not have benefitted from the crime.                      Neither we nor
    
    the dissent can conclude that the result of her prosecution would
    
    in reasonable probability have differed if Andrews had testified.
    
    
    
    
                                               41
                          D.   Alternate Cuyler Holding
    
               Finally,    even   if   this    en   banc   court    has     erred     in
    
    suggesting that attorney conflicts of interest, apart from the
    
    multiple   representation     context,     should      be    governed       by   the
    
    Strickland standard, we conclude that Beets's claim also fails to
    
    garner relief under Cuyler.         Because there was no objection at
    
    trial to either of the alleged conflicts, Beets had to establish
    
    the existence of an actual conflict that adversely affected her
    
    lawyer's performance.      Cuyler, 
    446 U.S. 348
    , 
    100 S. Ct. 1718
    .
    
               The panel opinion first concluded there was no "actual
    
    conflict" of a witness/advocate nature because, as was shown in the
    
    preceding section, Andrews's testimony was cumulative of other
    
    defense evidence and not materially more helpful to Beets.                       The
    
    panel   also   concluded   that    Beets   alleged,     at    most,     a   merely
    
    hypothetical or speculative witness/advocate conflict, which did
    
    not materialize into an actual conflict that forced Andrews to
    
    choose between his self-interest and his duty to Beets.                          See
    
    Stevenson v. Newsome, 
    774 F.2d 1558
    , 1561-62 (11th Cir. 1985),
    
    cert. denied, 
    475 U.S. 1089
    , 
    106 S. Ct. 1476
    , 
    89 L. Ed. 2d 731
     (1986)
    
    (To establish an actual conflict "[i]t must be demonstrated that
    
    'the attorney 'made a choice between possible alternative courses
    
    of action, . . . If he did not make such a choice, the conflict
    
    remained hypothetical.''") (citations omitted); United States v.
    
    Litchfield, 
    959 F.2d 1514
    , 1518 (10th Cir. 1992); United States v.
    
    Acevedo, 
    891 F.2d 607
    , 610 (7th Cir. 1989); United States v.
    
    Horton, 
    845 F.2d 1414
    , 1419 (7th Cir. 1988).                The panel observed
    
    
                                         42
    that Beets never proved that the potential conflict of interest
    
    developed into an actual conflict of interest.
    
                The dissent has agreed that a witness/advocate conflict
    
    alone is not the sort that even under their approach should be
    
    governed by a Cuyler inquiry.       Because the entire court subscribes
    
    to the application of Strickland to this type of conflict, we are
    
    in agreement that Beets has not established a constitutional
    
    violation.
    
                As to the media rights contract, there was no "actual
    
    conflict" under Cuyler because, as the record abundantly shows and
    
    as two judges on the panel held, the potential conflict speculated
    
    by Beets never materialized into an actual conflict in Andrews's
    
    representation.     The record does not demonstrate that the contract
    
    induced Andrews to compromise his zealous representation of Beets
    
    in favor of his own pecuniary interest.             Absent a showing that
    
    Andrews nefariously chose to compromise his efforts in such a way,
    
    this court cannot conjecture otherwise.         See, e.g., Stevenson 774
    
    F.2d at 1561-62; see also cases cited n.20, supra.
    
                The dissent also charges that the existence of an actual
    
    conflict    inducing    constitutionally     ineffective    assistance   of
    
    counsel    is   a   question   of   fact   judged   from   an   "objective"
    
    standpoint.     However, the Supreme Court rejected this proposition
    
    in both Strickland and Cuyler.        For instance, in Strickland, the
    
    Court explicitly recognized that
    
         in a federal habeas challenge to a state criminal
         judgment, a state court conclusion that counsel rendered
         effective assistance is not a finding of fact binding on
         the federal court to the extent stated by 28 U.S.C.
    
                                         43
          § 2254(d). Ineffectiveness is not a question of 'basic,
          primary, or historical fact.' Rather, like the question
          whether multiple representation in a particular case gave
          rise to a conflict of interest, it is a mixed question of
          law and fact.
    
    Strickland, 466 U.S. at 698, 104 S.Ct. at 2070 (quoting Townsend v.
    
    Sain, 
    372 U.S. 293
    , 309 n.6, 
    83 S. Ct. 745
    , 755 n.6 (1963)) (citing
    
    Cuyler, 446 U.S. at 342, 100 S.Ct. at 1714).          Consequently, as with
    
    the related question of constitutional ineffectiveness of counsel,
    
    the federal district court's finding of an actual conflict inherent
    
    in   the   media    rights   contract   is   not   shielded   from   appellate
    
    scrutiny by the clearly erroneous rule.
    
                Finally, even if the media rights/witness conflict was an
    
    actual one, it did not adversely effect Andrews's representation of
    
    his client.26      The dissent seeks to apply a three part test used by
    
    the Second Circuit in Winkler v. Keane, 
    7 F.3d 304
     (2d Cir. 1993),
    
    cert. denied, 
    114 S. Ct. 1407
     (1994), as the basis of its Cuyler
    
    analysis.    The dissent thus argues that (1) there was an "actual
    
    conflict" for Cuyler purposes simply because of the existence of
    
    
          26.   With due respect, the dissent's claim that this opinion somehow
    "conflates the existence and effect elements of the [Cuyler] analysis" is
    mistaken. Of course, both elements are necessary before this court can grant
    habeas corpus relief under Cuyler; Beets does not prove either element.
                This court's structured inquiry closely mirrors and is instructed
    by the Supreme Court's approach in Burger v. Kemp, 
    483 U.S. 776
    , 785, 
    107 S. Ct. 3114
    , 3121 (1987), which held that "the asserted actual conflict of
    interest, even if it had been established, did not harm [the] lawyer's
    advocacy." Likewise, had Beets been able to prove an actual conflict, habeas
    relief should still be denied because Beets did not demonstrate that it
    adversely affected her representation.
    
                Given the approach in Burger, the dissent's critique obfuscates
    the proper disposition of this case. Since both the state court and the
    district court agreed that the media rights contract had no effect on
    Andrews's representation of Beets, there is no need for a remand; relief under
    Cuyler is unavailable as soon as the petitioner fails to prove either an
    actual conflict or an adverse effect.
    
                                            44
    the media rights contract; (2) there was an "adverse effect" on
    
    Andrews's     representation     because     he   could    have    withdrawn     and
    
    testified for Beets; and (3) the remaining question, which must be
    
    remanded, is whether the media rights contract caused Andrews to
    
    withdraw.       Our    disagreements    whether    there    was    an   actual    or
    
    potential conflict and whether the conflict should be judged from
    
    an objective or subjective standpoint are of academic interest at
    
    this point, however. Even if we agreed with the dissent's position
    
    on the first two Winkler issues, this en banc majority finds no
    
    basis for a remand for additional fact finding.                 The state courts
    
    did their job.         Confronted with Beets's allegation that Andrews
    
    ineffectively represented her because of the media rights contract,
    
    Andrews filed an affidavit specifically denying the charge.                      The
    
    state trial courts specifically found that the contract did not
    
    affect his zealous representation.
    
                  This    federal   court    must     accord    a     presumption    of
    
    correctness to that finding.            Sumner v. Mata, 
    449 U.S. 539
    , 547
    
    (1981)27.     Further, although the federal district judge declined to
    
    
         27.      In relevant part, 28 U.S.C. § 2254(d) provides that
    
         In any proceeding instituted in a Federal court . . . for a writ
         of habeas corpus . . ., a determination after a hearing on the
         merits of a factual issue, made by a State court of competent
         jurisdiction in a proceeding to which the applicant for the writ
         and the State . . . were parties, . . . shall be presume to be
         correct, unless the applicant shall establish or it shall
         otherwise appear . . .
    28 U.S.C. § 2254(d).    Thus, the statute unambiguously dictates that the
    presumption of correctness afforded by this court is mandatory, not
    
    permissive.   This presumption can only be rebutted if the petitioner proves
    one of the statutory exceptions.   See 28 U.S.C. § 2254(d)(1)-(8).      Since the
    
                                            45
    plumb counsel's subconscious motivation, he found no conscious
    
    effect of the media contract on Andrews's decision not to testify.
    
    As the court put it, "Where there is no effect, there can be no
    
    adverse effect."      There is no point in remanding to give Beets a
    
    chance to prove what she has not yet proved in state or federal
    
    district court. The media rights contract did not adversely affect
    
    Andrews's performance because it had no impact on his failure to
    
    testify.     See Winkler, 7 F.3d at 310 (the court adheres to state
    
    court findings that contingent fee did not cause counsel's strategy
    
    decisions).
    
                Accordingly, Beets has not established that she was
    
    deprived of constitutionally effective counsel under Cuyler because
    
    of   the   media    rights   contract      or   Andrews's   dual   status     as
    
    witness/advocate.
    
                                     CONCLUSION
    
                For the foregoing reasons, the district court judgment
    
    granting the writ of habeas corpus must be REVERSED.
    
    
    
    
    dissent concedes that "no party has addressed the presumption of correctness,"
    
    the presumption has not been rebutted and this court must adopt it.
                Moreover, this court neither adopts nor raises this presumption
    anew.   To the contrary, we emphasize and rely on both the state and district
    
    courts' fact finding that the petitioner's grant of media rights to Andrews's
    son did not affect her representation at all.
    
                                          46
    HIGGINBOTHAM, with DAVIS and EMILIO M. GARZA, Circuit Judges,
    
    concurring:
    
         I concur in the opinion of the court except its alternative
    
    holding that petitioner would be entitled to no relief if the
    
    Cuyler standard were applicable.    For the reasons stated in my
    
    opinion concurring in the panel opinion, I would afford petitioner
    
    at least the relief fashioned by Judge King in her dissenting
    
    opinion's application of Cuyler, if it were applicable.
    
    
    
    
                                   47
    KING, with POLITZ, Chief Judge, GARWOOD, SMITH and WIENER, Circuit
    
    Judges, dissenting:
    
         I respectfully dissent from the majority's decision to reverse
    
    the district court's judgment granting the writ.
    
         It is important to recognize at the outset that whether an
    
    actual conflict of interest between an attorney and his client
    
    exists is a separate inquiry from whether we apply Cuyler v.
    
    Sullivan, 
    446 U.S. 335
     (1980), or Strickland v. Washington, 
    466 U.S. 668
     (1984), when a criminal defendant or, as here, a habeas
    
    petitioner challenges his conviction based on the alleged existence
    
    of an actual conflict of his trial counsel.   Whether an attorney-
    
    client conflict exists must be addressed at the commencement of the
    
    representation not only by the attorney and his client, but also
    
    frequently by the trial court. The same question must be addressed
    
    as a threshold issue on appeal or on habeas review.     If we allow
    
    the context in which the question of the existence of an actual
    
    attorney-client conflict arises here -- on retrospective review of
    
    a conviction -- to distort the criteria for determining whether an
    
    actual conflict exists, we inevitably skew the same inquiry when it
    
    is made at the beginning of the representation.   This we cannot do.
    
    
    
    
                                    48
         The district court's conclusion that the execution of a media
    
    rights contract created an actual conflict of interest between E.
    
    Ray Andrews and his client, Betty Lou Beets, is correct, and the
    
    majority's     contrary     conclusion      is    legally    and   factually
    
    insupportable.       If that conflict of interest was the cause of
    
    Andrews's failure to withdraw and testify on Beets's behalf -- an
    
    issue that I would remand to the district court to decide -- then
    
    Beets will have shown that it had an adverse effect on Andrews's
    
    representation, and applying Cuyler, the writ was properly granted.
    
         Finally, I disagree with the majority's unprecedented decision
    
    to limit the rule of Cuyler to cases involving multiple or serial
    
    representation.       The court thereby excludes from the ambit of
    
    Cuyler an exceptional conflict between an attorney's self-interest
    
    and his client's interest stemming from a highly particularized and
    
    powerfully focused source, a media rights contract.            If we reserve
    
    Cuyler for extraordinary attorney-client conflicts of that sort,
    
    not normally encountered in law practice, and we apply Strickland
    
    to alleged deficiencies in an attorney's performance having their
    
    sources   in   the   more   common    incidents   of   the   attorney-client
    
    relationship, we avoid having the Cuyler exception swallow the
    
    Strickland rule.      At the same time we preserve the benefit of the
    
    Cuyler inquiry for those exceptional cases that lie at the heart of
    
    the principles animating it.
    
                                  I.     BACKGROUND
    
         A.    Andrews's Representation
    
    
    
    
                                           49
           A full understanding of the issues in this appeal requires a
    
    more    complete   examination   of    the   facts   and   circumstances
    
    surrounding E. Ray Andrews's representation of Betty Lou Beets than
    
    the majority provides.     It is clear from the record of Beets's
    
    trial and from the record of the federal habeas proceedings that
    
    the testimony of Andrews was critical to Beets's defense that she
    
    did not murder Jimmy Don Beets for remuneration.       It is also clear
    
    from the record of the federal habeas proceedings that Andrews
    
    contemplated obtaining the media rights contract very early in his
    
    representation of Beets, long before the trial began.
    
           As the majority notes, in late 1984, more than a year after
    
    Jimmy Don's disappearance, the mobile home in which Beets lived was
    
    destroyed by fire.28   The insurance company, apparently suspicious
    
    of the claim, resisted paying on the policy.               Thus, in his
    
    testimony at the federal habeas proceeding, Andrews agreed that
    
    Beets "came to [him] looking for insurance benefits, but not with
    
    respect to the death of Jimmy Don Beets."             Instead, Andrews
    
    testified, Beets approached him for help in collecting the proceeds
    
    from the insurance policy covering the mobile home.
    
           At the habeas proceeding, Andrews testified that he believed
    
    that he had suggested to Beets, and thought he was obligated to
    
    suggest, pursuing any benefits that might be available as a result
    
    of Jimmy Don's disappearance.         As Andrews testified, "Ms. Beets
    
    
    
      The mobile home was Jimmy Don's separate property, but until
    Jimmy Don's disappearance, Betty Lou and Jimmy Don resided in the
    mobile home together. After Jimmy Don disappeared, Betty Lou
    continued to reside in the mobile home.
    
                                      50
    never pushed me like some clients would for money, proceeds, and it
    
    was . . . through independent investigation that I found out that
    
    she had money maybe due and payable or owing to her."           Andrews and
    
    Beets agreed that Andrews, in a contingent fee arrangement, would
    
    help Beets pursue any benefits to which she might be entitled.
    
         After his initial efforts proved unsuccessful, Andrews sought
    
    the assistance   of   brothers   Bruce   L.   and   Randell    C.   Roberts,
    
    attorneys who were practicing in Tyler, Texas.                According to
    
    Randell Roberts's affidavit that was admitted into the record of
    
    the habeas proceeding in lieu of live testimony, Andrews arranged
    
    for himself, Beets, and Randell Roberts to meet.        Roberts recalled
    
    that Andrews did most of the talking at that initial meeting, and
    
    that:
    
         With respect to potential life insurance benefits . . .
         Ms. Beets was able to provide . . . very little
         information. It was my impression that she believed at
         the time that there were probably some life insurance or
         pension benefits due to her, however, she appeared to
         know very little about the amount of the benefits in
         question or the potential insurance companies or other
         sources which would be responsible for these benefits.
    
         Eventually, Randell Roberts passed the file to his brother
    
    Bruce, who began looking for benefits.         At Beets's trial, Bruce
    
    Roberts testified that "when [he] first took the case, [Beets's]
    
    primary concern was . . . with the fire insurance company."            Bruce
    
    Roberts also testified that Beets had what "looked like part of a
    
    policy from the credit union in Dallas.       She also knew that she had
    
    or was asking me to check into pension benefits."             Bruce Roberts
    
    further testified, and later reemphasized in his affidavit which
    
    was also admitted into the record of the habeas proceeding, that
    
                                      51
    Beets had no idea what benefits she may have been entitled to.
    
    Despite Beets's ignorance about any benefits she may have been due,
    
    Bruce Roberts pursued the claims, writing letters and making
    
    telephone calls to anyone he thought might have owed Beets money as
    
    a result of her husband's disappearance.                 Bruce    Roberts's
    
    efforts met with some success, and he had Jimmy Don declared dead
    
    and secured a settlement with the City of Dallas for some pension
    
    funds. In early June of 1985, before the settlement was finalized,
    
    Jimmy Don's skeletal remains were unearthed from a wishing well in
    
    front of the mobile home.          Beets was subsequently arrested and
    
    charged with murder.29       The case, as the majority notes, generated
    
    significant local and national media attention.             Andrews agreed to
    
    represent Beets in the murder trial, and there is evidence that
    
    from   very    early   on   in   his   representation     of    Beets,   Andrews
    
    envisioned profiting from the Betty Lou Beets story.
    
           The same month that Beets was arrested and that Andrews began
    
    his representation of Beets -- June 1985 -- Andrews associated
    
    Gilbert   M.    Hargrave    to   assist     in   the   trial.    According    to
    
    Hargrave's testimony in the federal habeas proceeding, in June of
    
    1985, long before the trial began and before Hargrave had agreed to
    
    
      According to Randell Roberts's affidavit, after Beets was
    arrested, he and his brother "consulted with Mr. Andrews with
    respect to [their] further involvement in either of [the fire or
    the life] insurance matters. It was agreed that we would
    withdraw from further involvement in either matter . . . ."
    Additionally, Randell Roberts noted that "[i]n deciding to
    withdraw from these matters my brother and I knew that we might
    be called to testify on behalf of Ms. Beets during her trial. We
    did not think that it would be appropriate for us to continue to
    represent her in the other matters if we were needed to testify
    on her behalf." As noted above, Bruce Roberts did testify.
    
                                           52
    work on the case, Andrews stated, "`I'm going to get the book
    
    rights and I'll give you twenty percent of the book rights.'"
    
    Hargrave also testified that "[Andrews] thought the case was a
    
    valuable case, that the book rights were valuable, that it was
    
    notorious, famous, . . . and that it would generate a lot of
    
    income-producing type of publicity for himself and myself."
    
           Additionally, well before Beets's trial commenced, Andrews
    
    undertook efforts to secure the media rights.            The record of the
    
    federal habeas proceeding contains two draft versions of a contract
    
    assigning   the   media   rights   of    the   trial    to   Andrews's    son.
    
    Specifically, there is a typed draft of a media rights contract
    
    dated September 23, 1985 and a handwritten draft of the same
    
    document, presumably written sometime earlier.           Thus, even though
    
    the majority notes that "[o]n October 8, just after Beets's trial
    
    commenced, she signed a contract transferring all literary and
    
    media rights in her case to Andrews's son," Beets v. Collins,
    
    F.3d        , *5 (5th Cir. 1995) (en banc), it is clear from the
    
    record that    securing   the   media    rights   was   on   Andrews's    mind
    
    virtually from the beginning of his representation of Beets in
    
    connection with her indictment for Jimmy Don's murder.30                 As it
    
    
      The majority comments that "Andrews testified at the federal
    habeas hearing that this contract was signed after negotiations
    fell through to obtain his fee from Beets's children." Beets,
     F.3d at *5. This is technically true; the contract was not
    signed until after the trial began, and Andrews did note that he
    and one of Beets's daughters "discussed finances prior to trial.
    It didn't come through." This, however, does not support the
    notion that the media rights contract was a last-second
    alternative to a fee. As noted above, the record clearly
    indicates that Andrews contemplated obtaining the media rights
    long before the trial started.
    
                                        53
    developed, the assignment of the media rights was the consideration
    
    for Andrews's services in defending Beets.
    
          During the trial, Andrews had two lines of defense.                       His
    
    principal strategy during the guilt phase of the trial was simply
    
    to show that Beets did not commit the murder.              Andrews, however,
    
    left little doubt that his secondary strategy was "to try to attack
    
    the   State's    proof   on    their   claim     that   [Beets]    did    it    for
    
    remuneration."       As co-counsel Hargrave testified at the habeas
    
    proceeding, "[t]he basic theory [of the defense] was that [Beets]
    
    was not guilty, that she hadn't committed the act that she was
    
    under   indictment   for      and   that   if   she   actually    had    that   she
    
    certainly hadn't done so for remuneration."
    
          Accordingly, during trial, Andrews repeatedly attempted to
    
    make clear to the jury that it was his suggestion that Beets seek
    
    out benefits resulting from Jimmy Don's disappearance.                   As noted
    
    above, Andrews elicited testimony from Bruce Roberts that pursuing
    
    benefits from Jimmy Don's disappearance was not suggested by Beets.
    
    Moreover, during his examination of Beets, Andrews attempted to
    
    show that Beets was not interested in any insurance benefits.31
    
    
      Specifically, during his examination of Beets, the following
    colloquy took place:
    
          Andrews:    Whose suggestion was it that we try to
                      collect retirement and insurance money?
    
          Beets:      I don't know that anybody suggested it.
    
          Andrews:    Was it some two years later?
    
          Beets:      Yes, it was about two years later.
    
          Andrews:    Was it a lawyer [who] suggested it?
    
                                           54
    Further, during his closing argument, Andrews again attempted to
    
    convey   that   he   had   suggested    pursuing   insurance   and   pension
    
    benefits, stating:
    
         They're saying that [Beets] killed Jimmy Don Beets for
         insurance money. Ladies and gentlemen, she didn't even
         know anything about insurance, how much insurance he had
         or anything. Me and other lawyers inquired into this.
         Never called me in nearly two years . . . . Does that
         sound like somebody that's out after insurance money?
    
    Andrews reemphasized this near the end of his argument, asking the
    
    jury:
    
         Did [the prosecutor] ever prove to you, people that she
         ever collected any of his retirement proceeds? . . .
         [T]he only proof that came in was a lawyer works for
         money. If a lawyer sees . . . there's a case there,
         they're going to go after it. And I probably should have
         gone after it faster. I'm certainly glad now I didn't.
    
         Viewing the record in this case, there is no question that
    
    attempting to show that Beets did not act for remunerative purposes
    
    was an important aspect of Andrews's strategy.          Andrews's efforts
    
    to accomplish this objective, both in examination and in argument,
    
    were neutralized to some extent by the court's repeated instruction
    
    
         Beets:      I came to you.
    
         Andrews:    Did I send you . . . to some other lawyer?
    
         Beets:      I talked to Randy Roberts in your office.
    
         Andrews:    Okay. Did you ever push me to just, "Let's
                     get that money. Let's get that money and the
                     whole bit." Did you ever do that?
    
         Beets:      No, I didn't expect to get any of it.
    
    Additionally, near the conclusion of his examination of Beets,
    Andrews inquired whether Beets sought the settlement from the
    city "on my [Andrews's] recommendation?" Beets replied yes.
    
    
    
                                           55
    that "what the lawyers say is not evidence."               As Beets's counsel,
    
    Andrews, the only person besides Beets who could testify about
    
    exactly how the pursuit of the insurance and retirement benefits
    
    began, was precluded from testifying, and the jury was instructed
    
    not to consider as evidence any statements which he made about his
    
    involvement. Moreover, it is possible that the jury discounted the
    
    statements that he did make at trial as impermissible efforts to
    
    bolster his client's case.
    
         Judge Higginbotham's view about the importance to Beets's
    
    defense   of     Andrews's     testimony,     set   out    succinctly    in   his
    
    concurrence to the panel opinion in this case, bears repeating:
    
         Andrews's testimony could have significantly bolstered
         th[e] defense. . . . Andrews . . . 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 have 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. . . . It certainly would have been in
         Beets's best interest for Andrews to have testified.
    
    Beets v. Collins, 
    986 F.2d 1478
    , 1491 (5th Cir.) (Higginbotham, J.,
    
    specially concurring), reh'g en banc granted, 
    998 F.2d 253
     (5th
    
    Cir. 1993).
    
         B.    The District Court's Findings
    
         A    full    grasp   of    this   case     also      requires   a   careful
    
    consideration of the district court's findings. The district court
    
    began its Order by noting that "it is apparent that the defense
    
    counsel, E. Ray Andrews, fought for his client to the full extent
    
    
    
    
                                           56
    of his ability and energy. . . .       Andrews is well known to the
    
    Court as a competent and tenacious criminal lawyer."
    
           Subsequently, the district court ruled against Beets on most
    
    of her habeas claims, and then turned to "the issue which ha[d]
    
    proven most troublesome . . . [Beets's] Sixth Amendment claim."
    
    The court started its analysis by stating that "there are actually
    
    two conflicts in this case, the conflict created by the media
    
    rights contract . . .    and the conflict arising from the fact that
    
    the attorney should have been a witness instead of an advocate . .
    
    . ."    Although the district court stated that "the two conflicts
    
    may be intertwined to a limited extent," it addressed the conflicts
    
    separately.
    
           After examining the framework for analyzing Sixth Amendment
    
    challenges based on conflicts of interest, as set forth by the
    
    Supreme Court in Cuyler v. Sullivan, 
    446 U.S. 335
     (1980), the
    
    district court concluded:
    
           Mere demonstration of an actual conflict is insufficient;
           the term `adverse' must mean that some negative impact on
           counsel's performance is required.         After careful
           consideration, this court is of the opinion that 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
           interest of his client.
    
           Applying this standard, the district court first reemphasized
    
    that Beets had "demonstrated two actual conflicts of interest in
    
    this case, the media rights conflict and the witness/advocate
    
    conflict."    The court then turned to the adverse effect prong of
    
    its analysis.    As to the media rights conflict, the court "simply
    
    d[id] not believe that [it] affected Andrews'[s] performance at any
    
                                      57
    conscious level. There is, of course, no adverse effect when there
    
    is no effect at all."      The court also noted, however, that "[t]he
    
    possibility exists that the media rights contract motivated Andrews
    
    at a subconscious level to remain in the case when he should have
    
    withdrawn and testified for Petitioner.          To that limited extent,
    
    the two conflicts are intertwined."           The district court did not
    
    explore     this    relationship,      finding      instead   that   "the
    
    witness/advocate conflict is a separate conflict which did in fact
    
    adversely affect Andrews's performance.          This is sufficient under
    
    Cuyler    without   a   detailed   analysis    of   Andrews'[s]   possible
    
    motivation."
    
         As to the witness/advocate conflict, the court described
    
    Andrews's knowledge of Beets's pursuit of benefits resulting from
    
    her husband's death as well as Andrews's efforts to communicate
    
    that knowledge to the jury.        The district court found that those
    
    efforts were insufficient, stating that "Andrews obviously should
    
    have known of his dual status as a witness and advocate prior to
    
    trial.    Andrews'[s] dual status should have also been apparent to
    
    both the judge and district attorney as the trial unfolded."
    
    Although the district court recognized that "the conflict never
    
    occurred to any of the participants," it also noted that "[t]he
    
    testimony that Andrews could have provided as an independent
    
    witness related to an essential element of the State's charge of
    
    murder for remuneration."      Thus, the district court concluded that
    
    "counsel pursued a course of conduct inconsistent with his client's
    
    best interest when he accepted employment or failed to withdraw and
    
    
                                         58
    testify as a witness on [Beets's] behalf."                     Accordingly, the
    
    district court granted Beets's habeas petition.
    
          With a clear understanding of the factual background and
    
    district court findings in the case, I turn to an examination of
    
    the substantive issues in this appeal.                  To establish a Sixth
    
    Amendment violation, the Supreme Court has held that a defendant
    
    who did not raise the objection at trial "must demonstrate that an
    
    actual     conflict    of   interest   adversely       affected     his   lawyer's
    
    performance."      Cuyler, 446 U.S. at 348.        I first present what seem
    
    to me to be the threshold inquiries in the context of an asserted
    
    Sixth Amendment violation involving a conflict between the interest
    
    of a lawyer and the interest of his client.                   I look then at the
    
    question whether an actual conflict of interest existed between
    
    Andrews and Beets, and at the question whether any such conflict
    
    adversely affected Andrews's performance.              Finally, I address why
    
    the Cuyler standard, as opposed to the more stringent Strickland
    
    standard, should apply to this case.
    
    
    
                 II.   THE CONFLICT BETWEEN ATTORNEY AND CLIENT
    
          A.     The Threshold Inquiries
    
          The Second Circuit's decision in Winkler v. Keane, 
    7 F.3d 304
    
    (2d   Cir.    1993),    cert.   denied,     114   S.    Ct.    1407   (1994),    is
    
    particularly instructive in this case because, unlike the many
    
    cases    addressing     the   actual   conflict    issue       in   the   multiple
    
    representation context, Winkler addresses a conflict between the
    
    interest of the lawyer and the interest of his client.                    The issue
    
    
                                           59
    presented by Winkler was whether a contingency fee agreement
    
    between a criminal defendant and his attorney created a conflict of
    
    interest      for    the   attorney    resulting     in   a   violation   of   the
    
    defendant's     Sixth      Amendment    right   to   effective    assistance   of
    
    counsel. The court began by noting that an attorney has an actual,
    
    as opposed to a potential, conflict of interest "when, during the
    
    course   of    the    representation,     the   attorney's      and   defendant's
    
    interests diverge with respect to a material factual or legal issue
    
    or to a course of action."            Id. at 307 (emphasis added) (internal
    
    quotation omitted).          Having defined when an actual conflict of
    
    interest exists between an attorney and his client, the court went
    
    on to analyze the alleged conflict at issue:
    
              Winkler argues that the contingency fee created an
         actual conflict of interest for trial counsel because
         Winkler's interests in effective representation were
         pitted against trial counsel's monetary interest.      We
         agree.   The contingency fee agreement in this case
         provided trial counsel with an extra $25,000 only if
         Winkler was acquitted or otherwise not found guilty.
         Thus, trial counsel had a disincentive to seek a plea
         agreement, or to put forth mitigating defenses that would
         result in conviction of a lesser included offense.
         Plainly the contingency fee agreement created an actual
         conflict of interest.
    
    Id. at 307-08.         It is important to note that the Winkler court
    
    focused only on the objective divergence of interests between the
    
    lawyer and his client to determine whether an actual conflict
    
    existed. Having found such a conflict, the court went on to reject
    
    Winkler's argument that proof of adverse effect was not needed to
    
    grant relief under the Sixth Amendment.               The court held that to
    
    prove a Sixth Amendment violation, Winkler must meet the Cuyler
    
    
    
                                             60
    standard, and that standard required proof of an adverse effect.
    
    See id. at 308.
    
         Winkler argued that he was adversely affected by his counsel's
    
    failure to initiate or to engage in plea bargaining and by his
    
    counsel's failure to develop an intoxication defense to Winkler's
    
    second degree murder charge.     According to Winkler, both of these
    
    alleged failures were motivated by his counsel's pecuniary interest
    
    in total acquittal, which was the only outcome that would entitle
    
    counsel to payment of the $25,000 bonus under the contingency fee
    
    agreement.   See id. at 309.
    
         To address these adverse effect arguments, the court laid out
    
    a test for "prov[ing] adverse effect on the basis of what an
    
    attorney failed to do":
    
         [a defendant first] must demonstrate that some plausible
         alternative defense strategy or tactic might have been
         pursued.   He need not show that the defense would
         necessarily have been successful if it had been used, but
         that it possessed sufficient substance to be a viable
         alternative.    Second, he must establish that the
         alternative defense was inherently in conflict with or
         not undertaken due to the attorney's other loyalties or
         interests.
    
    Id. (quoting United States v. Gambino, 
    864 F.2d 1064
    , 1070 (3d Cir.
    
    1988) (quoting United States v. Fahey, 
    769 F.2d 829
    , 836 (1st Cir.
    
    1985)), cert. denied, 
    492 U.S. 906
     (1989)).
    
         In applying the test, the court looked first at the failure to
    
    initiate plea bargaining.      The court noted that the state court
    
    (which had held a hearing on the defendant's attorney-conflict
    
    claim) had found that in an alleged contract murder case, the
    
    
    
    
                                      61
    prosecution would have been highly unlikely to accept a plea
    
    agreement.    The court held, however, that:
    
         Winkler need not show that a strategy would have been
         successful, only that it "possessed sufficient substance
         to be a viable alternative." Even if it is likely to be
         unsuccessful, the negotiation of a plea bargain in a case
         in which the evidence is strongly against a defendant is
         a viable alternative.
    
    Id. (citation omitted).             The court's determination that a viable
    
    alternative had not been pursued did not end the adverse effect
    
    inquiry.   The court noted that the state court had found that plea
    
    bargain possibilities were not pursued because Winkler had advised
    
    his counsel that he was totally innocent and that he was not
    
    interested in pleading to a lesser charge even if the opportunity
    
    to do so were offered.         See id.    Thus, the Winkler court concluded
    
    that "trial counsel did not pursue a plea bargain because Winkler
    
    rejected   this     path,     not    because   of   trial   counsel's   monetary
    
    interest in the outcome."            Id. (emphasis added).
    
         The court made the same kind of inquiry into the failure to
    
    develop an intoxication defense.               Because "Winkler had snorted
    
    cocaine and smoked marijuana before the fatal event," the court
    
    found that an intoxication defense also had sufficient substance to
    
    be a viable alternative.            See id. at 310.    Nevertheless, the court
    
    found that Winkler's counsel had discussed the possibility of a
    
    conviction of lesser charges on the basis of intoxication, but
    
    Winkler    had     rejected    this     alternative,    again   asserting     his
    
    innocence.       See id.    The court accepted the state court's factual
    
    conclusion       that   "Winkler      failed   to   establish   that    the   fee
    
    arrangement caused trial counsel not to seek a conviction for
    
                                              62
    lesser charges."          Id. (emphasis added).              The court ended by
    
    concluding that Winkler had "failed to prove that trial counsel's
    
    representation was adversely affected by the conflict of interest.
    
    Thus, his Sixth Amendment right to counsel was not violated."                     Id.
    
         In summary, the Winkler court made three distinct inquiries in
    
    its Sixth Amendment analysis.         First, the court determined whether
    
    an actual conflict of interest existed between the                   lawyer and his
    
    client by asking whether the attorney's and defendant's interests
    
    diverged with respect to a material factual or legal issue or to a
    
    course of action.     Second, in addressing whether there had been an
    
    adverse    effect,   the    court    inquired       as   to   whether      a   viable
    
    alternative might have been pursued.                 Third, the court made a
    
    proximate cause inquiry, asking whether the viable alternative was
    
    not pursued because of the conflict.               A Sixth Amendment violation
    
    was made     out   only   if   all   three    inquiries       were    affirmatively
    
    answered -- i.e., the interests of the lawyer and his client
    
    diverged, a viable alternative was not pursued, and the failure to
    
    pursue    the   viable     alternative       was    caused    by     the   divergent
    
    interests.      Using this threshold framework, I proceed to Beets's
    
    case.
    
         B.     Was there a Conflict?
    
         As described above, the district court found that Beets
    
    "demonstrated two actual conflicts of interest in this case, the
    
    media rights conflict and the witness/advocate conflict."                      I will
    
    address these two "conflicts" separately, turning first to the
    
    media rights conflict.
    
    
                                           63
                 1.   Media Rights
    
          A conflict of interest between Beets and Andrews existed not
    
    later than the point at which the formal contract giving Andrews's
    
    son the media rights to the Betty Lou Beets story was executed, and
    
    perhaps earlier.        The majority "joins other courts, scholars and
    
    organizations of the bar who have uniformly denounced the execution
    
    of literary and media rights fee arrangements between attorneys and
    
    their clients during the pendency of a representation."           Beets,
    
    F.3d at *32.      What the majority fails to acknowledge is the reason
    
    for   such    uniform     condemnation    --   the   extraordinarily   high
    
    probability that a media rights contract between counsel and client
    
    will create a conflict of interest.              When Andrews began his
    
    representation of Beets on her murder charge, Texas's rules of
    
    ethics provided that "[p]rior to conclusion of all aspects of the
    
    matter giving rise to his employment, a lawyer shall not enter into
    
    any arrangement or understanding with a client . . . by which he
    
    acquires an interest in publication rights with respect to the
    
    subject matter of his employment."         State Bar Rules, art. X, § 9,
    
    DR 5-104(B) (Texas Code of Professional Responsibility) (1984).32
    
    
    
    
      Similarly, the American Bar Association's Model Code of
    Professional Responsibility and Model Rules of Professional
    Conduct prohibit (and continue to forbid) a lawyer from obtaining
    media rights to his client's case. See Model Rules of
    Professional Conduct Rule 1.8(d) (mandating that "[p]rior to the
    conclusion of representation of a client, a lawyer shall not make
    or negotiate an agreement giving the lawyer literary or media
    rights to a portrayal or account based in substantial part on
    information relating to the representation"); Model Code of
    Professional Responsibility EC 5-4 (mirroring the language of the
    Texas rule).
    
                                         64
          The reason for the rule is clear.              Despite the majority's
    
    assertions, media rights contracts are not prohibited primarily
    
    because they "encourage counsel to misuse the judicial process for
    
    the sake of his [own] enrichment and publicity seeking" or because
    
    they "necessarily trade[] on the misery of the victim and his
    
    family."   Beets,             F.3d at *32.          While ensuring that the
    
    judicial process is not misused and discouraging manipulation of
    
    the   suffering    of     others    for    profit    are   important    goals,
    
    commentators uniformly agree that the reason media contracts are
    
    frowned upon is because "[a]n agreement by which a lawyer acquires
    
    literary   or     media    rights    concerning      the   conduct     of   the
    
    representation creates a conflict between the interests of the
    
    client and the personal interests of the lawyer."              Laws. Man. on
    
    Prof. Conduct (ABA/BNA) 51:702 (1984) (emphasis added); see also
    
    John Wesley Hall, Jr., Professional Responsibility of the Criminal
    
    Lawyer § 12.13, at 414 (1987) ("A grave conflict of interest can
    
    arise from a [media rights contract] . . . ." (internal quotation
    
    omitted)); Geoffrey C. Hazard, Jr. & Susan P. Koniak, The Law and
    
    Ethics of Lawyering 498 (1990) ("The reason for prohibiting such
    
    arrangements is that what makes `good copy' does not necessarily
    
    make a good defense."); Robert P. Schuwerk & John F. Sutton, Jr.,
    
    A Guide to the Texas Disciplinary Rules of Professional Conduct,
    
    27A Hous. L. Rev. 133 (1990) ("The lawyer's acquisition from a
    
    client of publication rights to portrayals or accounts of the
    
    subject of the representation will probably create a conflict of
    
    interests."); Charles W. Wolfram, Modern Legal Ethics § 9.3.3, at
    
    
                                          65
    525 (1986) ("The problems [with media rights contracts] are two --
    
    conflict of interests and the revelation of client information . .
    
    . .").
    
          The rules against media rights contracts are designed to
    
    prevent the specific conflict resonating in this case; simply put,
    
    "a   lawyer   in      a    criminal   case    who   obtains    from   his     client
    
    television, radio, motion picture, newspaper, magazine, book, or
    
    other    publication        rights    with    respect   to    the   case     may   be
    
    influenced, consciously or unconsciously, to a course of conduct
    
    that will enhance the value of his publication rights to the
    
    prejudice of his client."             State Bar Rules, art. X, § 9, EC 5-4
    
    (Texas    Code   of       Professional   Responsibility)       (1984)      (emphasis
    
    added).    Plainly, a media rights contract "`may place the lawyer
    
    under temptation to conduct the defense with an eye on the literary
    
    aspects and its dramatic potential.                 If such an arrangement or
    
    contract is part of the fee, in lieu of the fee, or a condition of
    
    accepting the employment, it is especially reprehensible.'"                    Hall,
    
    supra, § 12.12, at 414 n.19 (quoting ABA Standards, The Defense
    
    Function Std 4-3.4, Commentary).33 In fact, a media rights contract
    
    is so rife with conflict that under Texas's rules "client consent
    
    
    
    
      See also Laws. Man. on Prof. Conduct, supra, at 51:702 (stating
    that the purpose of the prohibition is to "avoid the conflict of
    interest that would arise if the course of action that would
    further the client's cause would at the same time diminish the
    value of the lawyer's publication rights");   Schuwerk and
    Sutton, supra, at 134 (noting that a lawyer who is the
    beneficiary of a media rights contract "may be tempted to take
    various actions in the representation of the client based on
    their effect upon the value of the publication rights.").
    
                                             66
    will    not    cure    a   violation     of    [the   prohibitions    of    media
    
    contracts]."        Schuwerk & Sutton, supra, at 134.
    
           In the instant case, the media contract weighed on Andrews's
    
    mind from the beginning of his representation.              At the very least,
    
    the contract placed him in a situation of divided interests.
    
    Before the advent of the media rights contract, Beets's interest
    
    lay in having Andrews withdraw as her counsel and testify at her
    
    trial that he had initiated the idea of searching for Jimmy Don's
    
    insurance and pension benefits.               As her attorney, this was also
    
    Andrews's interest because he was obligated to see to it that his
    
    client's best defense was put forward.                After the media rights
    
    contract was confected, the interests of Beets and Andrews sharply
    
    diverged.          While Beets's interest remained in having Andrews
    
    withdraw and testify, Andrews's interest now squarely lay in
    
    remaining as her counsel because only then would he be entitled to
    
    the potentially lucrative media rights.               The record makes clear
    
    that   the    district     court   did   not    err   in   finding   that   Beets
    
    demonstrated that Andrews had an actual conflict of interest in
    
    regard to the media rights contract.
    
                  2.     The Lawyer as Witness
    
           The district court also recognized a second conflict of
    
    interest, Andrews's advocate/witness conflict.              The district court
    
    and the majority treat this conflict separately from the media
    
    rights conflict.           In a situation where a lawyer can provide
    
    favorable testimony material to his client's case, his failure to
    
    withdraw and testify may or may not stem from an actual conflict --
    
    
                                             67
    i.e., from a divergence of interests between the lawyer and his
    
    client.      If the failure to withdraw is caused, for example, by a
    
    desire to stay in the case for the fee involved, a conflict of
    
    interest may exist.            As one commentator has suggested, when a
    
    lawyer has a duty to withdraw and testify in favor of his client,
    
    but   does    not   do   so,   "[s]uch   a    decision   would     raise   serious
    
    questions about either the lawyer's competence or about the effect
    
    of a conflict of interest."              Wolfram, supra, § 7.5.2, at 381
    
    (emphasis added).        According to this commentator:
    
          The conflict is between the lawyer's duty of loyalty to
          the client, which urges the lawyer to give the needed
          testimony, and the lawyer's economic instincts, which may
          lead the lawyer to remain in the case as advocate in
          order to continue earning a fee that otherwise would have
          to be abandoned.
    
    Id. (emphasis added).          In my view, while Andrews's role as both an
    
    advocate and        a   potential   witness    may   well   have    violated   the
    
    applicable ethical rules,34 its significance for this case lies not
    
    
         The Texas standards of professional conduct in effect at the
    time of Beets's trial frowned upon an individual's acting as
    counsel in a case when he may also be called upon to serve as a
    witness. Specifically, the rule provided that:
    
          If, after undertaking employment in contemplated or
          pending litigation, a lawyer learns or it is obvious
          that he . . . ought to be called as a witness on behalf
          of his client, he shall withdraw from the conduct of
          the trial and . . . shall not continue representation
          in the trial.
    
    State Bar Rules, art. X, § 9, DR 5-102 (1984). The Rule provided
    for certain exceptions as well. See Texas State Bar Rules, art.
    X, § 9, DR 5-101(B) (1984).
    
         The rationale behind this rule is somewhat different from
    the reasons animating the prohibition against media rights
    contracts. Thus, while "the dual role [of advocate and witness]
    may be detrimental to the client's interests because the lawyer
    
                                             68
    in its possible status as an independent conflict, but rather in
    
    its relationship to the media rights conflict.          That is, as the
    
    district court recognized but did not explicitly resolve, the
    
    question remaining   in   this   case   is   whether   the   media   rights
    
    contract is what caused Andrews to remain in the case as counsel.35
    
    
    
         C.   Was Andrews's Representation Adversely Affected?
    
    
    
    may be more impeachable on grounds of bias," it is also
    recognized that:
    
              The most cogent rationale for the advocate-witness
         rule rests on protection of the fact-finding process.
         [The] adversary system works best when the roles of the
         judge, of the attorneys, and of the witnesses are
         clearly defined. Any mixing of those roles inevitably
         diminishes the effectiveness of the entire system.
    
    Schuwerk & Sutton, supra, at 317-18 (internal quotations
    omitted). Other commentators agree, noting that:
    
              The rationales [for rules limiting a lawyer by
         prohibiting media contracts and limiting a lawyer from
         acting as a witness] are simple. First, the attorney
         has built-in bias which must be argued to the finder of
         fact. Second, it is assumed that lawyers as advocates
         would bend the facts for the client or that the jury
         would give the lawyer's testimony too much credence.
         Third, the lawyer-witness role may inhibit effective
         cross-examination.
    
    Hall, supra, § 12.10, at 412 (footnotes omitted).
    
      Specifically the district court stated:
    
         The possibility exists that the media rights contract
         motivated Andrews at a subconscious level to remain in
         the case when he should have withdrawn and testified
         for [Beets]. To that limited extent, the two conflicts
         are intertwined. However, this Court has determined
         that the witness/advocate conflict is a separate
         conflict which did in fact adversely affect Andrews'[s]
         performance. This is sufficient under Cuyler without a
         detailed analysis of Andrews'[s] possible motivation.
    
                                      69
         Under Cuyler, a defendant does not have the burden of showing
    
    actual prejudice -- i.e., the defendant does not have to show that
    
    the result of the trial probably would have been different.           See
    
    Strickland, 466 U.S. at 691-96; United States v. Greig, 
    967 F.2d 1018
    , 1024 (5th Cir. 1992).           Instead, the defendant needs to
    
    demonstrate   an   adverse   effect    upon   his   representation,   and
    
    "Cuyler's adverse effect element establishes a relatively low
    
    threshold for a petitioner to cross."         Beets, 986 F.2d at 1490
    
    (Higginbotham, J., specially concurring). A limited presumption of
    
    prejudice arises from a showing of adverse effect because, as the
    
    Supreme Court has noted, "it is difficult to measure the precise
    
    effect on the defense of representation corrupted by conflicting
    
    interests."   Strickland, 466 U.S. at 692.      To establish an adverse
    
    effect on the basis of what an attorney failed to do, a defendant
    
    must demonstrate that some plausible alternative defense strategy
    
    or tactic -- "a viable alternative" -- might have been pursued.
    
    See, e.g., Winkler, 7 F.3d at 309.
    
         In Beets's case, Andrews's failure to testify had an adverse
    
    effect on her defense, as Andrews's testimony was clearly a viable
    
    alternative. Throughout the trial, Beets attacked the remuneration
    
    element of the State's case on which her capital murder conviction
    
    rested.   Andrews had significant testimony to offer bearing on the
    
    critical issue of whether the killing of Jimmy Don was for a
    
    remunerative purpose, specifically to obtain Jimmy Don's life
    
    insurance proceeds and pension benefits.        If the jury reasonably
    
    
    
    
                                      70
    doubted that Beets killed her husband for the insurance money, the
    
    murder was not a capital offense.
    
         The majority downplays the importance of Andrews's testimony
    
    by referring to it as "cumulative."         Beets,      F.3d at *40, 41.
    
    Of course, as mentioned, Beets does not need to show that Andrews's
    
    testimony would have been successful, but only that it possessed
    
    sufficient substance to be a viable alternative.         See Winkler, 7
    
    F.3d at 309.   Andrews's testimony clearly meets this standard, and
    
    the suggestion that his testimony is cumulative is simply based
    
    upon an erroneous reading of the record.             As evidence of the
    
    cumulative nature of Andrews's testimony, the majority points to
    
    Beets's own testimony that she was unaware of Jimmy Don's death
    
    benefits before she visited Andrews.        But the jury may well have
    
    discounted Beets's testimony because of its self-serving nature.
    
         The majority also points to the testimony of Bruce Roberts,
    
    who stated that more than a year after Jimmy Don's murder, Beets
    
    seemed   ignorant    of   his   insurance   and   benefits.    Roberts's
    
    testimony, however, was damaging in certain respects to Beets's
    
    defense.    Although Roberts did testify that Beets's "primary
    
    concern was . . . with the fire insurance company" and that Beets
    
    never pressured him to collect money from the City of Dallas,
    
    Roberts was also asked what Beets knew about benefits when she
    
    first came to him.    In response, Roberts stated:
    
         At the time I talked to her, she had one -- well, it
         looked like part of a policy, as I recall, from the
         credit union in Dallas. She also knew that she had or
         was asking me to check into pension benefits. Basically,
         that's all the information she could give me.
    
    
                                        71
    Thus, Roberts did not definitively testify that Beets was ignorant
    
    about the possibility of collecting benefits. Further, Roberts did
    
    not, and could not have, testified that Andrews suggested to Beets
    
    that they pursue Jimmy Don's insurance and pension benefits because
    
    Roberts was not present at the meeting between Beets and Andrews at
    
    which that suggestion was made.
    
          Other than Beets, only Andrews could have told the jury that
    
    he initiated the discussion regarding Jimmy Don's death benefits
    
    with Beets, and only Andrews could have testified that she appeared
    
    to lack knowledge of any such benefits.                 Further, only Andrews
    
    could have testified that it was at his suggestion that those death
    
    benefits were pursued. Any later interest or inquiry into benefits
    
    by or on behalf of Beets could have been attributable to this
    
    meeting between Beets and Andrews that took place long after Jimmy
    
    Don's murder.
    
          Similarly,      the   majority's        invocation   of    Denny    Burris's
    
    testimony to downplay any adverse effect from the absence of
    
    Andrews's testimony is erroneous. 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.     First of all, it is again worth mentioning that any
    
    suggestion that Andrews's testimony would not have been successful
    
    to Beets's defense is irrelevant.               Second, although Burris was a
    
    chaplain, his assignment was to discuss with Beets the benefits due
    
    
                                             72
    to the widow of a fireman.     "[I]t was not a mission to console a
    
    widow with prayer where the widow's interest was insurance not
    
    intercession."    Beets,    986   F.2d   at   1491   (Higginbotham,   J.,
    
    specially concurring).     Thus, the evidence of Beets's early focus
    
    on insurance, as the State would have it, is not so compelling.
    
    Finally, Burris's specific testimony did not show that Beets
    
    already knew about Jimmy Don's insurance and pension benefits.
    
    Rather, Burris testified that, several days after Jimmy Don's
    
    disappearance, Beets "asked about insurance, if she would be
    
    covered and things like that."
    
         In short, it is all too clear that Andrews's testimony was a
    
    viable alternative, and his failure to testify had an adverse
    
    effect on Beets's defense.     I agree with the assessment of Judge
    
    Higginbotham in his special concurrence to the panel opinion:
    
         Andrews's testimony was not merely cumulative. I cannot
         conclude that it would not have been helpful to Beets at
         trial.   It certainly would have been in Beets's best
         interest for Andrews to have testified. Given the low
         threshold established by Cuyler, I would not reject [the
         district court's] conclusion that Andrews's failure to
         give this evidence at trial adversely affected the
         conduct of her defense.
    
    Id. at 1491-92 (Higginbotham, J., specially concurring).
    
         Our task is not yet complete, however, as the third Winkler
    
    inquiry still remains on the table:      whether Andrews's withdrawal
    
    and testimony -- the "viable alternative" -- was not pursued
    
    because of the media rights conflict.           This is a fact-bound
    
    question that the district court did not directly answer.36       After
    
    
         I recognize that the ultimate question whether a conflict of
    interest existed here is a mixed question of law and fact, see
    
                                       73
    hearing evidence, the district court found that "Andrews obviously
    
    should have known of his dual status as witness and advocate prior
    
    to trial." The district court also concluded that Andrews "pursued
    
    a course of conduct inconsistent with his client's best interest
    
    when he accepted employment or failed to withdraw and testify as a
    
    witness on Petitioner's behalf."
    
         On the other hand, the court concluded that the media rights
    
    contract did not affect Andrews's performance "at any conscious
    
    level."   The court noted, however, that "[t]he possibility exists
    
    that the media rights contract motivated Andrews at a subconscious
    
    level to remain in the case when he should have withdrawn and
    
    testified   for   Petitioner.   To    that   limited   extent,   the   two
    
    conflicts are intertwined."     These statements suggest that the
    
    district court did not definitively resolve whether Andrews's
    
    failure to withdraw and testify was attributable in some fashion to
    
    his actual conflict of interest arising from the media rights
    
    contract.
    
         The majority holds that there is no need to remand this case
    
    to the district court for an explicit finding on whether the media
    
    rights contract caused Andrews to fail to withdraw for two reasons.
    
    First, the majority invokes, for the first time in the five years
    
    that this case has been in federal court, the presumption of
    
    correctness afforded by 28 U.S.C. § 2254(d) to the findings of fact
    
    
    
    Strickland, 466 U.S. at 698 (citing Cuyler, 446 U.S. at 342), but
    its fact-bound components, such as whether Andrews's failure to
    withdraw and testify was caused by the media rights contract,
    should be addressed in the first instance by the district court.
    
                                     74
    made by the state trial court judge on Beets's state habeas
    
    petition.       The   state   trial    court       found   as    a    fact    that
    
    "[p]etitioner's grant of `book rights' to the son of her counsel
    
    had no effect on the strategy of defense counsel."                   This finding
    
    was based on the trial court's own personal recollection of the
    
    trial and on Andrews's affidavit which stated that:
    
         defense attorney had no conflict of interest throughout
         the proceedings by agreeing that book rights would be his
         entire fee, said defense attorney has no book rights,
         these rights were given to said attorney's son and were
         only given after the trial was into its third or fourth
         day, the State Bar of Texas has found said defense
         attorney committed no improprieties with regard to this
         matter.
    
    At no point during the course of Beets's federal habeas proceedings
    
    has the State sought to invoke the presumption of correctness
    
    afforded by § 2254(d).        Beets filed a motion for an evidentiary
    
    hearing along with her federal habeas petition.                 When the State
    
    filed its response (and an amended response) to Beets's petition,
    
    it did not object to the hearing and, in responding to Beets's
    
    claim of an actual conflict of interest, the State asserted:
    
         Respondent denies that there was any conflict of interest
         in this case. However, because the Court has scheduled
         an evidentiary hearing on the issue, rather than argue
         the claim at this time, Respondent will rely on the facts
         developed at that hearing.
    
    (emphasis added). Finally, the State (appellant in this court) did
    
    not raise   the   preclusive    effect     of   the   state     court's      habeas
    
    findings in any of the many briefs it has filed with this court.
    
    Neither   the   panel   opinion    nor     Judge    Higginbotham's        special
    
    concurrence mentions § 2254(d) or Sumner v. Mata, 
    449 U.S. 539
    
    (1981), or any of its progeny.         In a last ditch effort to avoid
    
                                          75
    dealing with the ambiguities in the federal district court's fact
    
    findings, the presumption of correctness has been resurrected
    
    despite the State's unwillingness to invoke it.      Because no party
    
    has addressed the presumption of correctness, we cannot determine
    
    whether any of its exceptions applies.     For example, we do not know
    
    the position of the State or Beets on whether the factfinding
    
    procedure employed by the state court was adequate to afford a full
    
    and fair hearing or whether the material facts were adequately
    
    developed at the state court hearing.      See 28 U.S.C. §   2254(d)(3)
    
    and (4).   This case should not be decided at this late date on a
    
    basis not raised by the parties.
    
         The majority asserts as its second reason why, applying
    
    Cuyler, there is no need to remand for an explicit finding on
    
    causation the district court's statement that "the court simply
    
    does not believe that the media rights contract affected Andrews'
    
    performance at any conscious level."        The majority ignores the
    
    district court's recognition of a possible connection between the
    
    media rights contract and what it termed the "witness/advocate
    
    conflict" and its failure to resolve the ultimate question whether
    
    they were related.     The majority also ignores the contradiction
    
    inherent   in   the   district   court's   opinion   in   finding   the
    
    witness/advocate ethical problem to be an actual conflict (thereby
    
    implying that it stemmed from a divergence of interests between
    
    Andrews and Beets) while finding at the same time that the media
    
    rights contract (the likely source of the divergence) had no
    
    conscious effect on Andrews's performance.
    
    
                                      76
          In my view, because the district court did not explicitly
    
    decide whether Andrews's failure to withdraw and testify was caused
    
    by the actual conflict engendered by the media rights contract, the
    
    wiser course is to vacate the district court's judgment granting
    
    the writ and to remand the case so that the district court may
    
    consider the question in the first instance.                 If the district court
    
    determines on remand that Andrews's failure to withdraw and testify
    
    was caused by the actual conflict of interest arising from the
    
    execution of the media rights contract, with its powerful incentive
    
    to   remain     in   the   case,     then     Beets    will    have   successfully
    
    demonstrated     "that     an   actual      conflict    of    interest   adversely
    
    affected [her] lawyer's performance," Cuyler, 446 U.S. at 350, and
    
    she will be entitled to habeas relief.                The judgment granting the
    
    writ should then be reinstated.                 If, on the other hand, the
    
    district court concludes that Andrews's failure to withdraw and
    
    testify was not caused by the actual conflict stemming from the
    
    media rights contract, then that failure should be analyzed under
    
    Strickland.      On this record, there is no reasonable probability
    
    that the outcome of Beets's trial would have been different, and
    
    Beets has failed to satisfy the prejudice prong of Strickland.                 The
    
    writ should then be denied.
    
          D.      The Majority Opinion
    
          Before     explaining        why   Cuyler,       as     distinguished   from
    
    Strickland, applies to this case, I turn to an examination of the
    
    problems in the majority's approach to the existence of a conflict
    
    in this case.
    
    
                                             77
         The majority is squarely faced with the district court's fact-
    
    bound conclusion that Beets "demonstrated two actual conflicts of
    
    interest   in    this     case,   the    media   rights   conflict   and   the
    
    witness/advocate conflict."             The majority holds, however, that
    
    "only a potential and not an actual conflict arose between Beets
    
    and her lawyer."        Beets,      F.3d at *2.
    
         The majority discounts the district court's conclusion that an
    
    actual conflict existed by reason of the media rights contract,
    
    noting that:
    
         [T]he media rights contract posed a serious potential
         conflict of interest, [but] Beets failed to show how it
         hindered Andrews's presentation of her defense or
         prejudiced her by rendering the result of her criminal
         prosecution fundamentally unreliable.      Beets has not
         asserted that Andrews manipulated the case to enhance
         publicity or that the contract generally clouded his good
         judgment. Beets has shown no actual influence of the
         media rights contract on the conduct of her defense.
    
    Beets,          F.3d at *34.      Moreover, the majority later seems to
    
    resurrect the vacated panel opinion, noting that two judges held in
    
    that opinion "[a]s to the media rights contract, there was no
    
    `actual conflict' . . . because . . . [t]he record does not
    
    demonstrate that the contract induced Andrews to compromise his
    
    zealous representation of Beets in favor of his own pecuniary
    
    interest."      Id. at *43.
    
         Similarly, in discussing whether there was a conflict in
    
    Andrews's failure to withdraw and testify, the majority states that
    
    "[b]ecause Andrews's potential testimony for Beets was cumulative,
    
    he was not a necessary witness for her defense and did not face a
    
    substantial advocate/witness conflict." Beets,               F.3d at *40-41.
    
    
                                             78
    Again, the majority seems to resurrect the conclusion of the panel
    
    opinion that "Beets alleged, at most, a merely hypothetical or
    
    speculative witness/advocate conflict, which did not materialize
    
    into an actual conflict that forced Andrews to choose between his
    
    self-interest and his duty to Beets."   Beets,      F.3d at *42.
    
         The majority's conclusions fail on two levels.     First, the
    
    majority suggests that an actual conflict does not exist until an
    
    attorney makes a "choice" between his interest and the interest of
    
    his client. Building on the requirement of a "choice," the majority
    
    seems to add (as did the panel) a scienter element to conflict
    
    analysis, inserting a requirement, heretofore alien to the law,
    
    that an attorney must consciously recognize that he is operating
    
    under a conflict before that conflict can be said to actually
    
    exist.    Second and most noticeably, the majority conflates the
    
    existence and effect elements of the analysis by concluding that a
    
    conflict did not exist because Beets failed to demonstrate an
    
    effect.
    
               1.   The Function of "Choice" in Conflict Analysis
    
         The majority looks to statements by the Seventh, Tenth, and
    
    Eleventh Circuits to support the panel's contention that an actual
    
    conflict does not exist until an attorney makes a "choice"   between
    
    his interest and the interest of his client.   See Beets,       F.3d
    
    at *42 (citing Stevenson v. Newsome, 
    774 F.2d 1558
    , 1561-62 (11th
    
    Cir. 1985), cert. denied, 
    475 U.S. 1089
     (1986); United States v.
    
    Litchfield, 
    959 F.2d 1514
    , 1518 (10th Cir. 1992); United States v.
    
    Acevedo, 
    891 F.2d 607
    , 610 (7th Cir. 1989); United States v.
    
    
                                    79
    Horton, 
    845 F.2d 1414
    , 1419 (7th Cir. 1988)).                The concept of
    
    "making a choice" is typically used in cases where an attorney has
    
    a potential conflict (frequently between two clients) -- i.e., a
    
    situation where interests have not yet diverged but could do so in
    
    the future.      The courts look to whether a "choice" has been made
    
    only to signal that a divergence of interests has occurred -- i.e.,
    
    only to signal that a potential conflict has become an actual
    
    conflict.     The central question is whether the interests have
    
    diverged, and the concept of "making a choice" is an analytical
    
    tool used to answer this question.
    
         The cases cited by the majority support this proposition. See
    
    Stevenson, 774 F.2d at 1562 (noting that "[t]here is no evidence in
    
    this case that [the attorney] was subject to divided loyalties
    
    sufficient to establish an actual conflict of interest", thus,
    
    rejecting   Stevenson's     allegations     upon   a   determination   that
    
    divergent interests were absent from the case) (emphasis added);
    
    Horton, 845 F.2d at 1420 (focusing on the absence of divergent
    
    interests   in    finding   no   conflict    was   created    by   counsel's
    
    application for a position as a United States Attorney by stating
    
    that "[i]n any event, a candidate for a high federal position in
    
    his professional field would not advance his own interest by
    
    demonstrating that he is a weak or unskilled attorney on behalf of
    
    his client's interests.");       Acevedo, 891 F.2d at 610 (failing to
    
    find conflict, but noting that if Acevedo had alleged in her
    
    affidavit that her attorney was involved with her in the criminal
    
    activity, he "would have an obvious interest in preventing Acevedo
    
    
                                        80
    from testifying and thus implicating him in the illegal scheme");
    
    Litchfield, 959 F.2d at 1518 (rejecting defendant's claim that a
    
    conflict of interest arose because trial counsel, concerned that
    
    defendant was going to commit perjury, held an ex parte conference
    
    with judge, noting that "[t]he situation presented counsel with a
    
    difficult dilemma, and we cannot say that his ex parte discussion
    
    with the district court was a violation of his ethical duty or
    
    evidence of a conflict of interest.")
    
         This focus on divergent interests to determine whether an
    
    actual conflict of interest exists is also the focus in our
    
    circuit: "`[a] conflict exists when defense counsel places himself
    
    in a position conducive to divided loyalties.'"      United States v.
    
    Vaquero, 
    997 F.2d 78
    , 89 (5th Cir.) (quoting United States v.
    
    Carpenter, 
    769 F.2d 258
    , 263 (5th Cir. 1985)), cert. denied, 114 S.
    
    Ct. 614 (1993); accord Mitchell v. Maggio, 
    679 F.2d 77
    , 79 (5th
    
    Cir.), cert. denied, 
    459 U.S. 912
     (1982).
    
         In Beets's case, divergent interests existed, at the latest,
    
    when Andrews executed the media rights contract.    At that point, it
    
    was in Beets's interest for Andrews to withdraw and testify, while
    
    it was in Andrews's interest to remain as counsel so that he would
    
    receive the value of the media rights.
    
         The   majority   recognizes   that   disagreements   between   the
    
    majority and this dissent exist not only on whether there was an
    
    actual (as opposed to a potential) conflict but also on whether the
    
    conflict should be judged from an objective standpoint.       Beets,
    
     F.3d at *45.     In my view, it is important to be clear that
    
    
                                       81
    determining whether divergent interests are present such that an
    
    actual conflict exists contemplates an objective evaluation of the
    
    situation in which counsel is placed.37                  As the Ninth Circuit
    
    recently noted, "[t]he existence of an actual conflict cannot be
    
    governed solely by the perceptions of the attorney; rather, the
    
    court itself       must    examine   the   record   to    discern     whether    the
    
    attorney's behavior seems to have been influenced by the suggested
    
    conflict."    Sanders v. Ratelle, 
    21 F.3d 1446
    , 1452 (9th Cir. 1994).
    
         This objective evaluation makes perfect sense, for if the rule
    
    were as the majority suggests, counsel's actions benefiting himself
    
    and harming his client would not be actual conflicts, irrespective
    
    of their effect on the proceedings, as long as counsel was too
    
    obtuse, insensitive, or selfish to recognize that the pursuit of
    
    his own goals was coming at the expense of his client's defense.
    
    As the Supreme Court commented in an analogous context, "[i]t is
    
    unlikely    that    [an    attorney]   would   concede     that      he   continued
    
    improperly to act as counsel."         Wood v. Georgia, 
    450 U.S. 261
    , 265
    
    n.5 (1981) (describing how the conflict of interest was properly
    
    presented    when    the    lawyer   who   allegedly     had   the    conflict    of
    
    interest had prepared the brief and the petition for certiorari).
    
    The fact that Andrews arguably chose to continue his representation
    
    thoughtlessly as opposed to deliberately does not obviate the fact
    
    
    
         To say that the inquiry whether an actual conflict exists
    contemplates an objective evaluation of the situation in which
    counsel is placed, i.e., that counsel's subjective perceptions
    cannot control the outcome of that inquiry, is supported by the
    Court's conclusion that the question whether a conflict exists is
    a mixed question of law and fact. See Cuyler, 446 U.S. at 342.
    
                                           82
    that   given     the   possible   decisions   he   could   have   made   as   an
    
    attorney, he undertook a course of action that benefited himself
    
    while hindering Beets's defense. Simply put, an actual conflict is
    
    demonstrated when a defendant objectively shows that his interest
    
    and his attorney's interest diverged with respect to a material
    
    factual or legal issue or to a course of action, and such a
    
    divergence occurred in this case.38
    
                2.     Separating the Existence of a Conflict from the
                       Effect of a Conflict
    
           The majority also contends that there was no actual conflict
    
    in the context of the media rights contract "because . . . [t]he
    
    record does not demonstrate that the contract induced Andrews to
    
    compromise his zealous representation of Beets in favor of his own
    
    pecuniary interest."       Beets,          F.3d at *43.    Similarly, in the
    
    lawyer as witness context, the majority contends that there was no
    
    actual conflict "[b]ecause Andrews's potential testimony for Beets
    
    
    
         Until the panel's decision (which echoes in the majority
    opinion), there had been no question that the conflict inquiry is
    objective in the ordinary civil context. For example, in
    situations where a law firm is alleged to have a conflict of
    interest stemming from serial representation, whether the
    attorneys in that firm recognized or even knew about the conflict
    is not controlling. Instead, if an objective standard is met,
    i.e. if the "prior representations are substantially related to
    the present case," then "the court will irrebuttably presume that
    relevant confidential information was disclosed during the former
    period of representation." In re American Airlines, 
    972 F.2d 605
    , 614 (5th Cir. 1992), cert. denied, 
    113 S. Ct. 1262
     (1993).
    In such cases, there is little doubt that a law firm could not
    avoid disqualification by protesting that it neither believed nor
    realized that it had a conflict of interest. See In re Martin,
    
    817 F.2d 175
    , 182 (1st Cir. 1987) (noting that in examining
    whether an actual conflict of interest exists, "[s]incerity or
    protestations of good faith, no matter how genuine, will not be
    enough. The test must be more [of] an objective one.").
    
                                          83
    was cumulative, [and] he was not a necessary witness for her
    
    defense."     Id.     at   *40.    As   I    have   pointed   out   above,   this
    
    conclusion has no factual support in the record.                    As a legal
    
    conclusion, it has no support in the case law surrounding Cuyler;
    
    determining whether there was an actual conflict (as distinguished
    
    from determining whether the Sixth Amendment has been violated)
    
    does not require a showing of an adverse effect.
    
         As the majority concedes, Cuyler incorporates a standard less
    
    rigorous than Strickland.         See Strickland, 466 U.S. at 692 (noting
    
    that unlike general ineffective assistance of counsel claims, the
    
    criminal    justice    system     "maintain[s]      a   fairly   rigid   rule   of
    
    presumed prejudice" in the conflict of interest context).                       The
    
    reason for this lighter burden in conflict cases is clear.                As the
    
    Supreme Court has noted, it "is difficult to measure the precise
    
    effect on the defense of representation corrupted by conflicting
    
    interests," Strickland, 466 U.S. at 692, and accordingly, the Court
    
    has "refused to indulge in nice calculations as to the amount of
    
    prejudice attributable to the conflict."                Cuyler, 446 U.S. at 349
    
    (internal quotation omitted).           The majority, however, engages in
    
    such a calculation to determine whether a conflict even existed.
    
         The question of whether there actually was a conflict plays an
    
    important role in separating cases where interests diverge -- i.e,
    
    where the attorney places his own or another's interest above the
    
    client's interest -- from those situations where the conflict
    
    remains potential.         Whether the conflict actually affected the
    
    representation is a separate inquiry from the question of whether
    
    
                                            84
    there was an actual conflict.         Even when addressing whether a
    
    conflict had an adverse effect, the degree of prejudice caused by
    
    the conflict is not material once any real effect is shown.         See
    
    Cuyler, 446 U.S. at 349 ("[A] defendant who shows that a conflict
    
    of interest actually affected the adequacy of his representation
    
    need not demonstrate prejudice.").39
    
           The rule that the majority espouses goes even further than
    
    that   prohibited   in   evaluating   actual   effect.   The   majority
    
    collapses the question of effect into the question of actual
    
    conflict. Just as it is improper to evaluate a foregone strategy's
    
    potential for success when determining whether there is an adverse
    
    effect, it is also improper to evaluate that strategy's potential
    
    for success when determining whether there is an actual conflict of
    
    interest.40
    
    
         Circuit courts have frequently applied this principle.
    Thus, as the First, Second, and Third Circuits have noted:
    
           [a defendant first] must demonstrate that some
           plausible alternative defense strategy or tactic might
           have been pursued. He need not show that the defense
           would necessarily have been successful if it had been
           used, but that it possessed sufficient substance to be
           a viable alternative. Second, he must establish that
           the alternative defense was inherently in conflict with
           or not undertaken due to the attorney's other loyalties
           or interests.
    
    Winkler, 7 F.3d at 309 (quoting Gambino, 864 F.2d at 1070
    (alteration in original) (emphasis added)); accord Fahey, 769
    F.2d at 836; see also Foxworth v. Wainwright, 
    516 F.2d 1072
    , 1077
    n.7 (5th Cir. 1975) (noting, before Cuyler or Strickland, that
    "[i]f an actual, significant, conflict is found . . . the degree
    of prejudice is not to be considered.").
    
         There had been some question in this court about the other
    aspect of the test articulated in Cuyler; that is, whether a
    petitioner was required to show that an actual conflict of
    
                                      85
              III.   WHICH STANDARD -- CUYLER OR STRICKLAND?
    
         The majority holds that Strickland (rather than Cuyler)
    
    governs the analysis of Beets's claim.   The majority contends
    
    that Cuyler's analysis is applicable only to conflicts stemming
    
    from multiple representation, and it opines that "Strickland
    
    offers a superior framework for addressing attorney conflicts
    
    outside the multiple or serial client context."   Beets,         F.3d
    
    at *14.   First, I disagree with the majority's conclusion that
    
    Cuyler and the other Supreme Court cases addressing attorney
    
    conflicts support its decision to limit Cuyler to the multiple
    
    representation context.
    
         Second, drawing on those cases and on some of the cases at
    
    the circuit level that apply Cuyler to attorney-client conflicts,
    
    I would apply Cuyler to a conflict between the attorney and his
    
    client which has a highly particularized and powerfully focused
    
    source, of a kind not frequently or normally encountered in the
    
    practice of law.   It is these exceptional situations, where the
    
    divergence between the lawyer's self-interest and his client's
    
    
    
    interest actually affected his representation. In Baty v.
    Balkcolm, 
    661 F.2d 391
    , 395 (5th Cir. Unit B Nov. 1981), cert.
    denied, 
    456 U.S. 1011
     (1982), we stated our belief that "a
    requirement of proof of adverse effect of a conflict of interest
    on counsel, in addition to proof of an actual conflict, was not
    the intent of the [Supreme] Court in Cuyler." Baty, 661 F.2d at
    397 n.13.   After the Supreme Court's decision in Strickland, we
    revisited that determination, holding that "proof of some adverse
    effect is required before prejudice will be presumed from a
    showing that the attorney had an actual conflict of interest."
    Nealy v. Cabana, 
    782 F.2d 1362
    , 1365 (5th Cir.), cert. denied,
    
    479 U.S. 819
     (1986). In none of those cases, however, did we
    suggest a different standard for determining the first prong of
    the Cuyler inquiry -- whether there was an actual conflict.
    
                                    86
    interest poses an extraordinary threat to the lawyer's duty of
    
    loyalty, that warrant the protection of Cuyler.    As this court
    
    and other courts have recognized, the conflict stemming from a
    
    media rights contract is such a conflict, as are the conflict
    
    arising from the kind of contingent fee arrangement at issue in
    
    Winkler and the conflict arising from an attorney's involvement
    
    in the allegedly criminal conduct of his client.    If we reserve
    
    Cuyler for extraordinary attorney-client conflicts of that sort,
    
    not normally encountered in law practice, and we apply Strickland
    
    to alleged deficiencies in an attorney's performance having their
    
    sources in the more common incidents of the attorney-client
    
    relationship, we avoid having the Cuyler exception swallow the
    
    Strickland rule.   At the same time we preserve the benefit of the
    
    Cuyler inquiry for those exceptional cases that lie at the heart
    
    of the principles animating it.
    
         A.   Conflict of Interest Jurisprudence
    
         To test the majority's hypothesis that Cuyler applies only
    
    to multiple representation cases, I look first at what the
    
    Supreme Court and other courts have said about attorney
    
    conflicts.   It is well-settled that "[w]here a constitutional
    
    right to counsel exists . . . there is a correlative right to
    
    representation that is free from conflict of interest."    Wood,
    
    450 U.S. at 271; see also Cuyler, 446 U.S. at 335; Holloway v.
    
    Arkansas, 
    435 U.S. 475
     (1978).    The Supreme Court revisited
    
    Cuyler in Wood v. Georgia, 
    450 U.S. 261
     (1981), and it applied
    
    its framework to a conflict created by a third-party's payment of
    
    
                                      87
    counsel.   After examining the record, the Court noted that the
    
    defendants' employer had paid for the defendants' legal
    
    assistance, for the defendants' bond fees, and for some of the
    
    other fines that the defendants incurred, but it had failed to
    
    pay the fines which resulted in the defendants' incarceration.
    
    Wood, 450 U.S. at 267.      The Court further observed that:
    
         The fact that the employer chose to refuse payment of
         these fines, even as it paid other fines and paid the
         sums necessary to keep petitioners free on bond in this
         case, suggests the possibility that it was seeking --
         in its own interest -- a resolution of the equal
         protection claim raised [in the case].
    
    Id. (footnote omitted).      The Court recognized that because the
    
    attorney was being paid by the employer, and was therefore the
    
    employer's agent, there was a "clear possibility of conflict of
    
    interest."    Id.    In light of this possibility, the Court remanded
    
    the case to the state court, instructing the lower court to apply
    
    the Cuyler framework and to determine "whether the conflict of
    
    interest that th[e] record strongly suggests actually existed at
    
    the time of the probation revocation or earlier."      Id. at 273.
    
         The Supreme Court next discussed conflicts of interest in
    
    Strickland.   In that case, the Court was called upon to determine
    
    the "proper standards for judging a criminal defendant's
    
    contention that the Constitution requires a conviction . . . to
    
    be set aside because counsel's assistance at the trial . . . was
    
    ineffective."       Strickland, 466 U.S. at 671.
    
         Notably, when describing the standard for evaluating the
    
    prejudicial effect of a counsel's failings, the Court
    
    distinguished ineffectiveness claims predicated on conflicts of
    
                                        88
    interest.   Specifically, the court noted that these claims
    
    warranted a limited presumption of prejudice, stating that
    
    "prejudice is presumed when counsel is burdened by an actual
    
    conflict of interest."     Strickland, 466 U.S. at 692 (citing
    
    Cuyler, 446 U.S. at 345-50).    When there is an actual conflict,
    
    the Court emphasized that "counsel breaches the duty of loyalty,
    
    perhaps the most basic of counsel's duties."     Id.   Additionally,
    
    the Court found that a limited presumption of prejudice was
    
    warranted because "it is difficult to measure the precise effect
    
    on the defense of representation corrupted by conflicting
    
    interests."    Id.   Further, the Court reasoned that "[g]iven the
    
    obligation of counsel to avoid conflicts of interest and the
    
    ability of trial courts to make early inquiry in certain
    
    situations likely to give rise to conflicts, it is reasonable for
    
    the criminal justice system to maintain a fairly rigid rule of
    
    presumed prejudice for conflicts of interest."     Id. (citation
    
    omitted).
    
         The Supreme Court has not specifically addressed whether
    
    Cuyler applies to cases involving conflicts stemming from sources
    
    other than multiple representation.     See Illinois v. Washington,
    
    
    469 U.S. 1022
    , 1023 (1984) (White, J., dissenting from denial of
    
    certiorari).   Nevertheless, as the majority concedes, this court,
    
    as well as every circuit court facing the issue, has applied the
    
    rule of Cuyler to many types of conflicts of interest.41     In
    
    
      For cases applying Cuyler, see Garcia v. Bunnel, 
    33 F.3d 1193
    ,
    1198 n.4 (9th Cir. 1994) (applying the Cuyler standard to
    conflict created by attorney accepting job with prosecution
    
                                      89
    fact, the Seventh, Ninth, and Eleventh Circuits have applied the
    
    Cuyler framework to conflicts stemming from media rights
    
    contracts.   See United States v. Marrera, 
    768 F.2d 201
    , 205-09
    
    (7th Cir. 1985) (employing Cuyler framework to claim predicated
    
    on "conflict of interest between [the] lawyer's financial
    
    interest in proceeds from the movie rights and [defendant's]
    
    interest in acquittal"), cert. denied, 
    475 U.S. 1020
     (1986);
    
    Zamora v. Dugger, 
    834 F.2d 956
    , 960 (11th Cir. 1987) (noting that
    
    "[t]he standard developed in Cuyler has been applied to cases in
    
    
    
    office prior to trial, but noting that "[i]t is not logically
    necessary that the approach of [Cuyler] also apply to conflicts
    between a defendant's and the attorney's own personal interests;
    however, we conclude that precedent so requires"), cert. denied,
    
    115 S. Ct. 1374
     (1995); Winkler v. Keane, 
    7 F.3d 304
    , 307 (2d
    Cir. 1993) (applying Cuyler to conflict created by attorney
    working on contingency fee in criminal case), cert. denied, 
    114 S. Ct. 1407
     (1994); United States v. Sayan, 
    968 F.2d 55
    , 64-65
    (D.C. Cir. 1992) (upholding application of Cuyler's adverse
    effect test to alleged conflict created by lawyer's fear of
    antagonizing judge); United States v. Michaud, 
    925 F.2d 37
    , 40
    (1st Cir. 1991) (analyzing conflict of interest stemming from
    attorney's association with prosecuting IRS under Cuyler
    framework); United States v. Horton, 
    845 F.2d 1414
    , 1418-21 (7th
    Cir. 1988) (applying Cuyler to conflict generated by defense
    attorney's candidacy for U.S. Attorney); United States v.
    Andrews, 
    790 F.2d 803
    , 811 (10th Cir. 1986) (finding that Cuyler
    applies in situations involving "counsel's ability to represent
    his client fairly, loyally or impartially"), cert. denied, 
    481 U.S. 1018
     (1987); Roach v. Martin, 
    757 F.2d 1463
    , 1479 (4th Cir.)
    (applying Cuyler when alleged conflict of interest was rooted in
    fact that defense attorney was under investigation by state bar
    grievance committee), cert. denied, 
    474 U.S. 865
     (1985); Ware v.
    King, 
    694 F.2d 89
    , 92 (5th Cir. 1982) (per curiam) (using Cuyler
    framework to analyze claim of conflict of interest stemming from
    separate civil and criminal lawsuits pending between defense
    counsel and prosecutor), cert. denied, 
    461 U.S. 930
     (1983);
    United States v. Knight, 
    680 F.2d 470
    , 471 (6th Cir. 1982) (per
    curiam) (undertaking Cuyler analysis in evaluating claim of
    conflict of interest stemming from attorneys' knowledge that they
    were under investigation for stealing documents during trial),
    cert. denied, 
    459 U.S. 1102
     (1983).
    
                                    90
    which defendants argue that their lawyers were more interested in
    
    publicity than in obtaining an acquittal," and employing the
    
    Cuyler analysis); United States v. Hearst, 
    638 F.2d 1190
    , 1193
    
    (9th Cir. 1980) (recognizing that the conflict in Cuyler was
    
    based on multiple representation, and observing that the case
    
    before it was "based on private financial interests" of the
    
    lawyer, but applying Cuyler because "[t]hese differences are
    
    immaterial."), cert. denied, 
    451 U.S. 938
     (1981).
    
         Nevertheless, the majority boldly asserts that all of these
    
    other courts have misread Cuyler and the Supreme Court's
    
    subsequent cases, stating that "[o]ne cannot read Cuyler [as]
    
    analyz[ing] conflicts of interest in a context broader than that
    
    of multiple client representation."      Beets,      F.3d at *15.    As
    
    noted above, however, the Supreme Court did just that in Wood,
    
    applying Cuyler to a conflict of interest stemming from the fact
    
    that defendants' counsel was being paid by a third party.     The
    
    majority attempts to distinguish this case by stating that the
    
    "lawyer was at least in the functional equivalent of a joint
    
    representation. . . .    Both the theater and the employees
    
    expected him to advance their interests, yet to serve one might
    
    require him to fail the others, while doing nothing could harm
    
    both."    Beets,     F.3d at *18.    The majority forces Wood into
    
    the multiple representation category by focusing on the common
    
    denominator of all conflicts:    divided loyalties or divergent
    
    interests between two or more entities.
    
         B.     Divided Loyalties: The Ethical Principles
    
    
                                        91
         The majority accurately notes that representation of two or
    
    more clients whose interests are best served by divergent
    
    litigation tactics presents a situation in which an attorney's
    
    loyalties may be pulled in different directions by his various
    
    clients.   When such a situation arises, an attorney may be forced
    
    to choose the interest of one client at the expense of the
    
    interest of the other client, or the attorney may choose to do
    
    nothing and neglect the interests of both clients.    See Geoffrey
    
    C. Hazard & W. William Hodes, 1 The Law of Lawyering § 1.7:101
    
    (2d ed. Supp. 1992); Model Rules of Professional Conduct Rule
    
    1.7, 1.9 (specifically addressing conflicts of interest arising
    
    from concurrent representation and serial representation).
    
         Multiple representation situations, however, are not the
    
    only circumstances in which a conflict of interest may test an
    
    attorney's duty of loyalty.   A lawyer's duty of loyalty may also
    
    be compromised when his own interests diverge from his client's
    
    interests.    See Wolfram, supra, § 7.1.3, at 317 ("The principle
    
    of loyalty runs throughout conflicts thinking but is most
    
    prominent in the areas of simultaneous conflicts and conflicts
    
    involving the lawyer's personal interests.").   In fact, the
    
    general rule against conflicts of interest provides that "[a]
    
    lawyer shall not represent a client if the representation of that
    
    client may be materially limited by the lawyer's responsibilities
    
    to another client or to a third person, or by the lawyer's own
    
    interests."   Model Rules of Professional Conduct Rule 1.7(b); see
    
    also Wolfram, supra, § 7.1.2, at 315 (describing how an older
    
    
                                     92
    version of the rules governing conflicts "deal[t] with two
    
    central situations -- when a lawyer's personal interests clash
    
    with those of a client and when a lawyer represents at the same
    
    time clients with differing interests").   This potential for a
    
    conflict rooted in the attorney's self-interest is so severe that
    
    the Model Rule of Professional Conduct 1.8 is devoted almost
    
    entirely to prohibitions and restrictions aimed at preventing
    
    such conflicts.42   The reason for these rules is clear.   Just as
    
    an attorney's loyalty may be pulled in different directions by
    
    clients' divergent interests, an attorney's loyalty can be sorely
    
    tested when his own self-interest runs counter to the interests
    
    of his client.
    
         Thus, the majority's attempt to draw the Cuyler line at
    
    multiple representation is ill-considered, for there is no
    
    logical reason why the distinction could not be used to classify
    
    all conflicts (including those involving the attorney's self-
    
    interest) as "multiple representations."   Simply put, there is no
    
    
      For example, Model Rule 1.8(a) restricts an attorney from
    entering into business transactions with a client. Similarly
    Rule 1.8(d) prohibits an attorney from acquiring media rights
    from a client prior to the conclusion of the representation of
    that client. Rule 1.8(f) severely restricts the ability of an
    attorney to receive compensation from someone other than his
    client, and Rule 1.5(d)(2) prohibits attorneys from entering into
    contingent fee arrangements in criminal cases. See also State
    Bar Rules, art. X, § 9, DR 5-101(A) (Texas Code of Professional
    Responsibility) (1984) ("[A] lawyer shall not accept employment
    if the exercise of his professional judgment on behalf of his
    client will be or reasonably may be affected by his own
    financial, business, property, or personal interests."); Hazard &
    Hodes, supra, § 1.8:101 (noting that many of the transactions
    prohibited in Model Rule 1.8 "involve transactions in which the
    lawyer's own self-interest threaten to adversely affect the
    quality of the representation to be provided").
    
                                    93
    intuitive reason why the Cuyler line should be drawn at conflicts
    
    where the interests of only third parties cause the divergence
    
    facing the attorney, as distinguished from conflicts where the
    
    interest of the attorney himself causes the divergence that he
    
    confronts.   Indeed, there is a powerful intuitive reason why, in
    
    some situations, that line should not be (and has not been) drawn
    
    there.    There are exceptional conflicts involving the attorney's
    
    self-interest that, human nature being what it is, are far more
    
    likely to impair the lawyer's ability to satisfy his duty of
    
    loyalty to his client than are the more ordinary conflicts
    
    between clients.
    
         C.    Where Should the Cuyler Line Be Drawn?
    
         I recognize that not every conflict of interest pitting a
    
    lawyer's self-interest against his client's interests should
    
    trigger the analysis outlined in Cuyler.    As one commentator
    
    notes, "[i]n a sense, every representation begins with a lawyer-
    
    client conflict.   If the representation is for a fee, the
    
    lawyer's economic interest will be to maximize the amount of the
    
    fee and the client's will be to minimize it."   Wolfram, supra, §
    
    7.1.1, at 313.   Conversely, if the representation is for a flat
    
    fee, the attorney's interest will be to minimize the amount of
    
    time spent on the case, and the client's interest will be to
    
    maximize it.   Similar conflicts inure in any contract for the
    
    sale of goods or services; the seller's interest is to maximize
    
    the amount the buyer spends and minimize his own costs, and the
    
    
    
    
                                     94
    buyer's interest is to minimize the amount that he spends and
    
    maximize the quality of the goods or services.
    
         Thus, the Cuyler exception would swallow the Strickland rule
    
    if it were applied to every case in which a criminal defendant
    
    complains that his lawyer failed to investigate a witness or a
    
    defense, neglected to perform an experiment, did not hire a
    
    witness, or otherwise failed to take action because the attorney
    
    decided that it was not worth the time or the expense.   We have
    
    recognized that Cuyler is not meant to cover these types of
    
    cases.    Strickland appropriately governs claims for failure to
    
    investigate43 and the like, and courts have had little difficulty
    
    in treating such claims under Strickland's ineffectiveness
    
    rubric.   See, e.g., Williams v. Calderon, 
    52 F.3d 1465
    , 1473 (9th
    
    Cir. 1995) (refusing to apply Cuyler when a defendant alleged
    
    that "the fact that payment for any investigation or psychiatric
    
    services could have come from counsel's pocket forced counsel to
    
    choose between [the defendant's] interests and his own"); United
    
    States v. Zackson, 
    6 F.3d 911
    , 921 (2d Cir. 1993) (finding that
    
    Strickland, not Cuyler, was applicable to a claim that defense
    
    counsel was "plagued by a conflict of interest, namely that he
    
    was under enormous time constraints in regard to prior trial
    
    commitments" (internal quotations omitted)); Yohey v. Collins,
    
    
    985 F.2d 222
    , 227 (5th Cir. 1993) (finding that a failure to hire
    
    
    
         Strickland itself was a claim for failure to investigate,
    and in adopting its test, the Court noted that Strickland's
    standard "require[d] no special amplification in order to define
    counsel's duty to investigate." Strickland, 466 U.S. at 690.
    
                                    95
    an expert was not a conflict in the Cuyler sense and applying
    
    Strickland to the alleged conflict).44
    
           In addition to conflicts that are more properly treated
    
    under Strickland as claims about competence and diligence, there
    
    are other attorney-client conflicts frequently or normally
    
    encountered in the practice of law that will be better handled
    
    under Strickland.   For example, the conflict claimed to exist in
    
    United States v. Sayan, 
    968 F.2d 55
    , 64-65 (D.C. Cir. 1992),
    
    involving a lawyer who allegedly failed to request a continuance
    
    because he was afraid the judge would take action against him and
    
    his law firm if he made such a request, would arise with some
    
    frequency, as would the conflict claimed to exist in Zamora v.
    
    Dugger, 
    834 F.2d 956
    , 960 (11th Cir. 1987), that the lawyer was
    
    more concerned with publicity than with his client's fate.    Both
    
    these charges can be made, with some credibility, in a good
    
    number of cases, and where they form the basis for a claim for
    
    
    
    
         In differentiating between conflicts that merit the more
    stringent test of Strickland and conflicts that warrant the
    Cuyler methodology, courts may, as instructed to do in Strickland
    when determining the reasonableness of attorney conduct, receive
    some guidance from prevailing norms of professional
    responsibility. Ineffective assistance claims rooted in the
    failure to investigate or to devote proper attention to a case
    have rightfully been treated under the uncontroversial standards
    of competence and diligence. See Strickland, 466 U.S. at 690;
    Zackson, 6 F.3d at 921; Model Rules of Professional Conduct Rule
    1.1. ("A lawyer shall provide competent representation to a
    client. Competent representation requires the legal knowledge,
    skill, thoroughness and preparation reasonably necessary for the
    representation."); Model Rules of Professional Conduct Rule 1.3
    ("A lawyer shall act with reasonable diligence and promptness in
    representing a client.").
    
                                    96
    post-conviction relief, they should be evaluated under Strickland.
    
         While the great majority of alleged attorney-client
    
    conflicts arising in post-conviction proceedings -- those
    
    frequently or normally encountered in the practice -- will be
    
    better handled under Strickland, there are exceptional conflicts
    
    between an attorney's self-interest and his client's interest,
    
    stemming from highly particularized and powerfully focused
    
    sources, of the sort not normally encountered in law practice,
    
    that demand the application of Cuyler.   A media rights contract
    
    is such a source,45 as are the kind of contingent fee arrangement
    
    at issue in Winkler and an attorney's involvement in the
    
    allegedly criminal conduct of his client. These circumstances
    
    present situations so fraught with the temptation for the lawyer
    
    to sacrifice his client's best interest for his own benefit that
    
    they constitute particularly serious threats to the duty of
    
    loyalty.   Not coincidentally, the Supreme Court and lower courts
    
    have applied the Cuyler presumption to these very types of
    
    cases.46
    
    
         The majority states that "[t]he dissent has agreed that a
    witness/advocate conflict alone is not the sort that even under
    their approach should be governed by a Cuyler inquiry." Beets,
     F.3d at *43. To the contrary, a witness/advocate "conflict"
    having its source in a media rights contract, as may be the case
    here, is exactly the kind of conflict that should be governed by
    Cuyler.
    
      For examples of these cases see Wood, 450 U.S. at 271-72
    (applying Cuyler to a case in which a defense attorney was paid
    by a third party with a possibly conflicting interest); Winkler,
    7 F.3d at 308 (using Cuyler in a case where a criminal defense
    attorney was paid on a contingency fee basis); Marrera, 768 F.2d
    at 207 & n.6 (employing Cuyler's framework to a conflict based on
    a lawyer's financial interest in media rights); Hearst, 
    638 F.2d 97
         The majority posits that in these cases, unlike in the
    
    multiple representation context, the risk of prejudice is not
    
    plain, and that "[w]hen the duty of loyalty is challenged by an
    
    attorney's self-interest, the range of possible breaches . . . is
    
    virtually limitless."   Beets,           F.3d at *26.   I disagree.
    
    The risk is all too plain.    Further, Cuyler has been the law for
    
    fifteen years, and it cites precedents at the circuit level
    
    (including this circuit's decision in Foxworth v. Wainwright, 
    516 F.2d 1072
     (5th Cir. 1975)), that are even older.        The inescapable
    
    fact is that the courts have not had difficulty with the boundary
    
    problems described by the majority, as courts have been able to
    
    separate ordinary ineffective assistance claims (even those
    
    dressed in conflict language) from the exceptional cases that
    
    warrant the Cuyler standard.       But even if we do encounter
    
    problems with cases at the boundaries, that is no reason to
    
    change the rule in a case that lies at the heart of the
    
    principles animating Cuyler.
    
         In short, there is no authority whatsoever for limiting
    
    Cuyler to the multiple representation situation, and, as many
    
    courts have recognized, it makes no sense to do so in those
    
    exceptional cases where an attorney's self-interest poses a
    
    serious threat to the duty of loyalty.
    
                                 IV.    SUMMARY
    
    
    
    
    at 1193 (same); Acevedo, 891 F.2d at 610-11 (employing the Cuyler
    test to a situation in which an attorney may be involved in the
    criminal conduct that his client is alleged to have committed).
    
                                        98
         Under Cuyler, relief is proper on a Sixth Amendment claim of
    
    ineffective assistance of counsel when a defendant
    
    "demonstrate[s] that an actual conflict of interest adversely
    
    affected his lawyer's performance."    Cuyler, 446 U.S. at 348.    In
    
    the instant case, Andrews was faced with an actual conflict
    
    because, while Beets's interest lay in having Andrews withdraw
    
    and testify, Andrews's interest lay in remaining as her counsel,
    
    because only then would he be entitled to the potentially
    
    lucrative media rights.    Additionally, because Andrews did not
    
    withdraw and testify, Beets's representation was adversely
    
    affected.   A Sixth Amendment violation will be shown if the
    
    district court concludes that the conflict was the cause of
    
    Andrews's failure to withdraw and testify.    I would vacate the
    
    district court's judgment and remand with instructions to resolve
    
    that issue.   If the district court concludes that the conflict
    
    was the cause of Andrews's failure to withdraw, then a Cuyler
    
    claim has been successfully established and the judgment granting
    
    the writ would be reinstated.    If the district court concludes
    
    that the conflict was not the cause of Andrews's failure to
    
    withdraw, then that failure should be evaluated under Strickland.
    
    Under that test, Beets has failed to show prejudice, i.e., that
    
    the result of her trial would have been different had Andrews
    
    withdrawn and testified.    In that case, the writ should be
    
    denied.
    
    
    
    
                                     99