Opinion of the Court
COOK, Judge:
We granted review to consider the effect of two alleged errors at accused’s trial by general court-martial which resulted in his conviction of unpremeditated murder of a fellow soldier at the NCO Club, Fort Carson, Colorado. The record indicates that the victim was shot during an apparent disagreement with the accused over a girl, who had previously dated the accused but was then in the company of the victim.
The first error is a purported “violation” of the attorney-client relationship between the accused and Captain Ingram, one of the two military counsel representing him, by the alleged, unauthorized disclosure of information obtained from the accused. The matter came up at an Article 39(a)1 session with the trial judge in the course of consideration of a defense motion to exclude the assistant trial counsel, Captain Werner, from participation in the case as a prosecutor on the ground that his previous connection with the proceedings as chief of military justice of the command were such as to disqualify him. See United States v. McCluskey, 6 U.S.C.M.A. 545, 20 C.M.R. 261 (1955). One of the disqualifying actions attributed to him as chief of military justice was a conversation he had with Captain Ingram. The conversation took place sometime after the Article 322 investigation, at which the accused had been represented by Captain Ingram, another appointed military lawyer, and a civilian attorney, all of whom were still representing the accused at the trial. Captain Ingram was doing research in the library for another case when Captain Werner came on the scene. They became engaged in a conversation about the accused’s case.
Called as a defense witness in support of the motion to recuse him, Werner acknowledged that while serving as the chief of military justice he had conversed on a number of occasions with the two military counsel, but he denied he had ever “talked about . [defense] strategy.” He also admitted he had discussed with civilian counsel “the possibilities of a pretrial agreement in the case.” Questioned by the military judge, he maintained that no “confidences of the defense” were ever revealed to him. He had never attempted “to assist the defense in any way,” and before the Article 32 investigation, he had specifically instructed the military defense counsel to consult “with the Chief Defense Counsel” at Fort Carson to insure that “all discussion pertaining to the merits of the case” was kept “strictly in the hands of the defense side of the Military Justice Section.” He stated “unequivocally” that he had “not learned anything” from either military defense counsel “about the facts or law in this case” that he “would not have known” from other sources.
Captain Ingram’s version of the library conversation differed from Werner’s generalizations. He stated that he had “approached” Werner in “a professional manner” and had told him “some of the strategy of the defense” and “some of the knowledge” he had acquired in his “professional relationship with the accused.” However, when questioned by the trial judge, he admitted he did not then know “what the strategy of the defense” at the trial was to [104]*104be; and later, at the conclusion of the trial, when the matter was raised again, he asserted “for the record” that he “had no . knowledge of the accused’s testimony” or the “nature” of that testimony, previous to the accused’s “taking the stand.” It may fairly be inferred, therefore, that what Ingram characterized as “defense strategy” was really, in his language, “what I felt I would do as a defense counsel if I were handling the case,” and his only purpose was to get Werner’s “feelings about the way I would run the case had I been chief defense counsel.”
As civilian defense counsel objected to public disclosure of the actual content of the conversation between Werner and Ingram, the trial judge had Ingram write out a statement of its substance, as he recalled it. The writing was then sealed and appended to the trial record as an appellate exhibit. As we shall later indicate in more detail, the writing was subsequently unsealed and considered further. It is as follows:
(1) I informed CPT Werner that I felt there was an issue involving a general lack of premeditation in that SSG Brooks had informed me of the following:
(2) That on the night in question he went to NGO club. While entering the club he found a paper bag outside the club which contained a pistol. That while there he passed the table where the deceased was sitting. That the deceased grabbed the accused and went for a weapon or the accused so thought. That the accused went for the gun he was carrying and it accidentally went off. That he never meant to shoot the deceased but only to scare off the attack.
(3) From these related facts I told CPT Werner that I felt there was no premeditation and that if I were the chief defense counsel I would plead him guilty of a lesser included offense and let him relate his story on the merits, making him more credible with the court members. To this he replied “where then is the gun.”
(4) I only did this because I felt that as the Chief of Justice he would keep all that I told him in strictest confidence.
s/s Allen R. Ingram
Ruling on the motion to recuse Captain Werner, the trial judge noted that, on the evidence, he found no ethical considerations or inconsistencies of conduct to disqualify the captain from acting as assistant trial counsel. He denied the motion.3 However, except for the remainder of the Article 39(a) hearing, which dealt with such procedural matters as trial dates and possible subjects of examination of the court members on voir dire, “because of other pressing duties” Captain Werner was absent from every session of the court, until after the imposition of sentence. Following close of the sentence proceedings, the trial judge conducted a further hearing on Captain Ingram’s statement. Captain Werner was present at this hearing.
In the course of the supplementary hearing, Werner argued he had the right to read Captain Ingram’s statement so that the Government could refute any inference that it had acquired “an advantage that it would not otherwise [have] had.” He also pointed out that further inquiry was appropriate as the alleged unauthorized disclosure of a confidential communication put Captain Ingram “in a position” where he might be subject to an allegation of “some sort of misconduct.” Captain Ingram suggested that, as Werner had disclaimed remembering “anything that was said” in the conversation he had with him and as nothing relating to it had been “brought out on the [105]*105prosecution’s case or on cross-examination” of the accused, he thought the matter should be closed.4 However, civilian counsel objected to the unsealing of Captain Ingram’s statement. He argued that the Government did not need to know its content “to protect the record,” and that disclosure would only “perpetuate this violation” of accused’s confidential communication.
The statement was unsealed; and the trial judge numbered the paragraphs 1 through 4, as appears in the text set out earlier. Captain Werner read the statement.
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Opinion of the Court
COOK, Judge:
We granted review to consider the effect of two alleged errors at accused’s trial by general court-martial which resulted in his conviction of unpremeditated murder of a fellow soldier at the NCO Club, Fort Carson, Colorado. The record indicates that the victim was shot during an apparent disagreement with the accused over a girl, who had previously dated the accused but was then in the company of the victim.
The first error is a purported “violation” of the attorney-client relationship between the accused and Captain Ingram, one of the two military counsel representing him, by the alleged, unauthorized disclosure of information obtained from the accused. The matter came up at an Article 39(a)1 session with the trial judge in the course of consideration of a defense motion to exclude the assistant trial counsel, Captain Werner, from participation in the case as a prosecutor on the ground that his previous connection with the proceedings as chief of military justice of the command were such as to disqualify him. See United States v. McCluskey, 6 U.S.C.M.A. 545, 20 C.M.R. 261 (1955). One of the disqualifying actions attributed to him as chief of military justice was a conversation he had with Captain Ingram. The conversation took place sometime after the Article 322 investigation, at which the accused had been represented by Captain Ingram, another appointed military lawyer, and a civilian attorney, all of whom were still representing the accused at the trial. Captain Ingram was doing research in the library for another case when Captain Werner came on the scene. They became engaged in a conversation about the accused’s case.
Called as a defense witness in support of the motion to recuse him, Werner acknowledged that while serving as the chief of military justice he had conversed on a number of occasions with the two military counsel, but he denied he had ever “talked about . [defense] strategy.” He also admitted he had discussed with civilian counsel “the possibilities of a pretrial agreement in the case.” Questioned by the military judge, he maintained that no “confidences of the defense” were ever revealed to him. He had never attempted “to assist the defense in any way,” and before the Article 32 investigation, he had specifically instructed the military defense counsel to consult “with the Chief Defense Counsel” at Fort Carson to insure that “all discussion pertaining to the merits of the case” was kept “strictly in the hands of the defense side of the Military Justice Section.” He stated “unequivocally” that he had “not learned anything” from either military defense counsel “about the facts or law in this case” that he “would not have known” from other sources.
Captain Ingram’s version of the library conversation differed from Werner’s generalizations. He stated that he had “approached” Werner in “a professional manner” and had told him “some of the strategy of the defense” and “some of the knowledge” he had acquired in his “professional relationship with the accused.” However, when questioned by the trial judge, he admitted he did not then know “what the strategy of the defense” at the trial was to [104]*104be; and later, at the conclusion of the trial, when the matter was raised again, he asserted “for the record” that he “had no . knowledge of the accused’s testimony” or the “nature” of that testimony, previous to the accused’s “taking the stand.” It may fairly be inferred, therefore, that what Ingram characterized as “defense strategy” was really, in his language, “what I felt I would do as a defense counsel if I were handling the case,” and his only purpose was to get Werner’s “feelings about the way I would run the case had I been chief defense counsel.”
As civilian defense counsel objected to public disclosure of the actual content of the conversation between Werner and Ingram, the trial judge had Ingram write out a statement of its substance, as he recalled it. The writing was then sealed and appended to the trial record as an appellate exhibit. As we shall later indicate in more detail, the writing was subsequently unsealed and considered further. It is as follows:
(1) I informed CPT Werner that I felt there was an issue involving a general lack of premeditation in that SSG Brooks had informed me of the following:
(2) That on the night in question he went to NGO club. While entering the club he found a paper bag outside the club which contained a pistol. That while there he passed the table where the deceased was sitting. That the deceased grabbed the accused and went for a weapon or the accused so thought. That the accused went for the gun he was carrying and it accidentally went off. That he never meant to shoot the deceased but only to scare off the attack.
(3) From these related facts I told CPT Werner that I felt there was no premeditation and that if I were the chief defense counsel I would plead him guilty of a lesser included offense and let him relate his story on the merits, making him more credible with the court members. To this he replied “where then is the gun.”
(4) I only did this because I felt that as the Chief of Justice he would keep all that I told him in strictest confidence.
s/s Allen R. Ingram
Ruling on the motion to recuse Captain Werner, the trial judge noted that, on the evidence, he found no ethical considerations or inconsistencies of conduct to disqualify the captain from acting as assistant trial counsel. He denied the motion.3 However, except for the remainder of the Article 39(a) hearing, which dealt with such procedural matters as trial dates and possible subjects of examination of the court members on voir dire, “because of other pressing duties” Captain Werner was absent from every session of the court, until after the imposition of sentence. Following close of the sentence proceedings, the trial judge conducted a further hearing on Captain Ingram’s statement. Captain Werner was present at this hearing.
In the course of the supplementary hearing, Werner argued he had the right to read Captain Ingram’s statement so that the Government could refute any inference that it had acquired “an advantage that it would not otherwise [have] had.” He also pointed out that further inquiry was appropriate as the alleged unauthorized disclosure of a confidential communication put Captain Ingram “in a position” where he might be subject to an allegation of “some sort of misconduct.” Captain Ingram suggested that, as Werner had disclaimed remembering “anything that was said” in the conversation he had with him and as nothing relating to it had been “brought out on the [105]*105prosecution’s case or on cross-examination” of the accused, he thought the matter should be closed.4 However, civilian counsel objected to the unsealing of Captain Ingram’s statement. He argued that the Government did not need to know its content “to protect the record,” and that disclosure would only “perpetuate this violation” of accused’s confidential communication.
The statement was unsealed; and the trial judge numbered the paragraphs 1 through 4, as appears in the text set out earlier. Captain Werner read the statement. On the stand and “still under oath,” he admitted he had been informed “substantially” of the matter in paragraph 1; as regards paragraph 3, he said he and Ingram had a “general discussion,” in “hypothetical terms,” of one of the elements of the offense; he had “no comment” as to paragraph 4. In regard to paragraph 2, the crucial paragraph, he asserted that “the first” he knew of any of the facts “mentioned in” that paragraph was as he “read it right now.” He maintained he had “not been told that by Captain Ingram.” Captain Werner was not examined by any of the three defense lawyers, and no other evidence was offered. The statement was resealed, with the understanding it would be open to examination on review, and the hearing was concluded.
Three assumptions are implicit in the issue as framed. The first is that, although Captain Werner explicitly denied the matter under oath, he had, in fact, been told by Captain Ingram that the accused had admitted he found a gun outside the NCO Club and, later, during the altercation with the deceased, he “went for the gun he was carrying.” The second is that privilege attached to the accused’s statement, although there is no evidence that the initial disclosure by the accused to Captain Ingram was made only to persons subject to the privilege, an essential requirement for establishment of the privileged nature of communication. Manual for Courts-Martial, United States, 1969 (Rev.), paragraph 151b (2); In re Grand Jury Proceedings, 517 F.2d 666, 670 (5th Cir. 1975). The third assumption is that disclosure of the communication to Captain Werner as chief of military justice was, in fact, in “violation” of the attorney-client relationship with the accused, notwithstanding evidence tending to indicate Captain Ingram honestly and reasonably believed that, in the discharge of his duties as defense counsel, he could, when necessary, consult with the chief of military justice for advice on matters relating to the defense. 8 Wigmore, Evidence § 2316(2) (McNaughten rev. 1961); United States v. Shibley, 112 F.Supp. 734, 741 (S.D. Cal.1953). While the validity of each of the assumptions may be arguable, our view of the issue makes it unnecessary to decide the matter.
Appellate defense counsel contend that any unauthorized disclosure by counsel of a confidential communication by his client requires reversal of the client’s conviction on the ground of general prejudice. An unauthorized disclosure may be some evidence of incompetence on the part of counsel, but as we remarked earlier, that issue is not before us. The privilege serves a number of purposes, but its role in a particular litigation is to protect the client against use of his confidential communication without his consent. MCM, paragraph 151b (2); Wilcoxon v. United States, 231 F.2d 384 (10th Cir. 1956), cert. denied, 351 U.S. 943, 76 S.Ct. 834, 100 L.Ed. 1469 (1956); United States v. Alvarez, 519 F.2d 1036 (3rd Cir. 1975). When a confidential communication is improperly used against an accused in a criminal case and the accused is convicted, the conviction can nonetheless be affirmed, if the record demonstrates that the use made of the communication was harmless to the accused and that the conviction is otherwise valid. United States v. [106]*106McCluskey, infra: United States v. Fanning, 477 F.2d 45, 48 (5th Cir. 1973), cert. denied, 414 U.S. 1006, 94 S.Ct. 365, 38 L.Ed.2d 243 (1973). The record here leaves no reasonable doubt that, if disclosed, the accused’s communication was, as Captain Ingram conceded, not used at trial in any way adversely to the accused, in regard to both the findings of guilty and the sentence. We are similarly convinced that the disclosure did not disadvantage the accused in the review by the convening authority, especially considering that, contrary to the recommendation of the staff judge advocate, he reduced the adjudged sentence to confinement from life to 25 years.
In a second assignment of error, the accused contends he was prejudiced by trial counsel’s improper questioning of a defense witness as to a previous conviction by special court-martial for assault and drunk and disorderly conduct and separate occasions of punishment under Article 15, Uniform Code of Military Justice, 10 U.S.C. § 815. No defense objection was interposed to the questioning. Appellate Government counsel contend that the failure to object and the absence of any significant reference to the witness’ testimony in defense counsel’s closing argument on the merits demonstrate “tacit acknowledgement” on the part of the defense of the “minimal value” to its case of the testimony of the witness.
The defense witness was not at the scene of the shooting, but in the lobby of the club. The substance of his testimony on direct examination was merely to the effect that after the homicide, he saw Rita, the girl who had been with the victim, leave the club in the company of another man; shortly thereafter, when the victim had been removed, he saw her outside the club about 20 to 30 feet from the door. Rita had testified as a Government witness. She stated that, after the shooting, she had “tried to help” the victim, but finding she could do nothing, she had “stood up” and let other people “take over.” She talked to a man and asked him what “she was supposed to do and he just said stay calm and wait.” He walked with her outside the club, and then they returned. These activities by Rita had nothing to do with Rita’s credibility as a Government witness or with the defense theory, which, as summarized by the Court of Military Review, was that the accused was “attempting to avoid being injured by the victim,” who, himself, had “the weapon from which the fatal shot was fired.” We have no reasonable doubt, therefore, that the improper questioning of the witness as to inadmissible previous acts of misconduct did not operate to the accused’s disadvantage, either at the trial or on review by the convening authority and the Court of Military Review.
The decision of the United States Army Court of Military Review is affirmed.
Judge PERRY concurs.