Opinion of the Court
HomER FERGUSON, Judge:
Before a general court-martial, convened at Fort Benning, Georgia, the accused pleaded not guilty to unlawfully purchasing a pistol of a value of $53.00, knowing the same to be stolen, and guilty to carelessly discharging a firearm, both offenses being in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934. For these delicts, he was found guilty as charged and sentenced to he dishonorably dis[59]*59charged from the service, to forfeit all pay and allowances, and to be confined at hard labor for one year. The findings and sentence were approved by the convening authority and subsequently affirmed without opinion by a board of review. We granted review to determine the following issues:
1. Whether trial defense counsel could adequately represent the accused.
2. Whether the evidence is sufficient to support the finding of value in specification 1.
I
A recitation of the facts and circumstances which gave rise to the first granted issue is essential. On the evening of April 2, 1956, the accused purchased a .45 caliber pistol, the property of the United States, from one Fields. The sale was allegedly consummated after considerable haggling over the price which was finally established at $20.00. At trial, Fields testified on behalf of the prosecution that he had sold the pistol to the accused. He further testified that he had stolen the pistol some seven months before while on guard duty. On cross-examination, the defense counsel elicited from the witness the statement that he had not informed the accused that the pistol was stolen property until after the sale had been finalized. On redirect examination, the witness identified the defense counsel as the same attorney who had represented him in his prior courtJmarfcial conviction for stealing a pistol and for unlawfully selling it. The prosecution next called one Nelms who had been present when the alleged sale took place and though his testimony was in part contradictory, he claimed that the accused had been informed, prior to the consummation of the sale, that the pistol had been stolen. The accused did not take the stand in his own behalf.
The court-martial of the accused was held on June 14, 1956, and he was represented by a certified appointed defense counsel. Some six weeks prior to this trial, Fields had pleaded guilty before a general court-martial to the offenses of larceny of the pistol, in violation of Article 121, Uniform Code of Military Justice, 10 USC § 921, and unauthorized sale of the same to the accused in contravention of Article 108, Uniform Code of Military Justice, 10 USC § 908. Counsel for the accused in the instant case had also represented Fields. The accused now contends that as a result of this dual representation he was deprived of the effective assistance of counsel.
A case strikingly similar to the one presently before us and involving substantially the same issue was recently before this Court in United States v Lovett, 7 USCMA 704, 23 CMR 168. There we held it to be error for defense counsel to represent an accused who pleaded not guilty and an accused who pleaded guilty to the same offense, where the latter was a witness for the prosecution against the first accused. Our holding was no more than a reiteration of the well-settled principle that counsel must not represent conflicting interests. Although we recognized the fact that prior representation by defense counsel óf a Government witness against the accused “does not by itself justify a conclusion that the accused was denied effective legal assistance,” we held that the prior nature of the relationship in that case required reversal. We are constrained to reach a similar conclusion in this case.
In attempting to convince the court-martial of the accused’s innocence, counsel was under an affirmative duty to protect and safeguard the confidences derived from the attorney-client relationship formerly established and still existing between himself and Fields. Counsel thus found himself placed in the legally precarious position of having to “walk the tightrope” between safeguarding the interests of the accused on the one hand and retaining the prior confidences of Fields on the other. Such a rope is too narrow. Such a walk is too long. The possibility of falling is too real. The probability of prejudicing the accused is too great. The basic underlying principle which condemns the representation by an at[60]*60torney of conflicting interests seeks to achieve as its purpose no more than this — to keep counsel off the tightrope. The orderly administration of justice requires that an attorney not be placed in the position where he must choose between conflicting interests. Counsel for the accused was placed in that position in this case. The late Judge Brosman, writing for a unanimous Court in United States v McCluskey, 6 USCMA 545, 20 CMR 261, eloquently stated the principle in the following manner:
“It may be accepted as settled law in this Court that, since a lawyer is bound by professional duty to avoid divulgence of a client’s confidences to the disadvantage of the latter, doubts concerning equivocal or apparently inconsistent conduct on the part of the attorney must be resolved against him — that is, it must be regarded as having been antagonistic to the best interests of his client. See In re Boone, 83 Fed 944, 952 (ND Cal). This rule stands as a rigid — perhaps even a dogmatic — one. We are sure that it exists of necessity, not only for the purpose of circumventing the dishonest practitioner’s malfeasance, but also to prevent the upright lawyer from placing himself in such a position as to require him to choose between conflicting duties. People v Gerold, 265 Ill 488, 107 NE 165, 177, and authorities there cited. Thus, regardless of the purity of his motives, it is demanded that the lawyer avoid the very appearance of that wrongdoing which, in obedience to the important policy dictating this privileged relationship, the courts are impelled to deplore — for ‘no rule in the ethics of the legal profession is better established nor more rigorously enforced than this one.’ ”
We are convinced that defense counsel acted in good faith, but this does not affect our holding because we believe that he nevertheless failed to realize the full implication of his prior association with Fields as it related to his duties to the accused. E.g., Tucker v United States, 235 F2d 238 (CA9th Cir) (1956) ; Craig v United States, 217 F2d 355 (CA6th Cir) (1954). Defense counsel made no effort to examine his former client on the question of whether the accused had actually purchased the weapon from him. He never interrogated the witness on the fact of his theft of the pistol or whether it came from a Government source. Yet, it is well settled that it is not sufficient in a case of this kind to show merely that someone was convicted for the actual larceny. Kirby v United States, 174 US 47, 19 S Ct 574, 43 L ed 890. These defects in the examination can reasonably have resulted from defense counsel’s previous connection with the witness. Since he had pleaded him guilty of stealing the pistol and subsequently selling it to the accused, defense counsel may well have taken these facts as established — to the patent disadvantage of his present client, the accused.
Moreover, the evidence relating to the accused’s knowledge that the gun was stolen was weak. In his direct testimony the witness implied that he had told the accused before the sale that the weapon was an Army .45.
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Opinion of the Court
HomER FERGUSON, Judge:
Before a general court-martial, convened at Fort Benning, Georgia, the accused pleaded not guilty to unlawfully purchasing a pistol of a value of $53.00, knowing the same to be stolen, and guilty to carelessly discharging a firearm, both offenses being in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934. For these delicts, he was found guilty as charged and sentenced to he dishonorably dis[59]*59charged from the service, to forfeit all pay and allowances, and to be confined at hard labor for one year. The findings and sentence were approved by the convening authority and subsequently affirmed without opinion by a board of review. We granted review to determine the following issues:
1. Whether trial defense counsel could adequately represent the accused.
2. Whether the evidence is sufficient to support the finding of value in specification 1.
I
A recitation of the facts and circumstances which gave rise to the first granted issue is essential. On the evening of April 2, 1956, the accused purchased a .45 caliber pistol, the property of the United States, from one Fields. The sale was allegedly consummated after considerable haggling over the price which was finally established at $20.00. At trial, Fields testified on behalf of the prosecution that he had sold the pistol to the accused. He further testified that he had stolen the pistol some seven months before while on guard duty. On cross-examination, the defense counsel elicited from the witness the statement that he had not informed the accused that the pistol was stolen property until after the sale had been finalized. On redirect examination, the witness identified the defense counsel as the same attorney who had represented him in his prior courtJmarfcial conviction for stealing a pistol and for unlawfully selling it. The prosecution next called one Nelms who had been present when the alleged sale took place and though his testimony was in part contradictory, he claimed that the accused had been informed, prior to the consummation of the sale, that the pistol had been stolen. The accused did not take the stand in his own behalf.
The court-martial of the accused was held on June 14, 1956, and he was represented by a certified appointed defense counsel. Some six weeks prior to this trial, Fields had pleaded guilty before a general court-martial to the offenses of larceny of the pistol, in violation of Article 121, Uniform Code of Military Justice, 10 USC § 921, and unauthorized sale of the same to the accused in contravention of Article 108, Uniform Code of Military Justice, 10 USC § 908. Counsel for the accused in the instant case had also represented Fields. The accused now contends that as a result of this dual representation he was deprived of the effective assistance of counsel.
A case strikingly similar to the one presently before us and involving substantially the same issue was recently before this Court in United States v Lovett, 7 USCMA 704, 23 CMR 168. There we held it to be error for defense counsel to represent an accused who pleaded not guilty and an accused who pleaded guilty to the same offense, where the latter was a witness for the prosecution against the first accused. Our holding was no more than a reiteration of the well-settled principle that counsel must not represent conflicting interests. Although we recognized the fact that prior representation by defense counsel óf a Government witness against the accused “does not by itself justify a conclusion that the accused was denied effective legal assistance,” we held that the prior nature of the relationship in that case required reversal. We are constrained to reach a similar conclusion in this case.
In attempting to convince the court-martial of the accused’s innocence, counsel was under an affirmative duty to protect and safeguard the confidences derived from the attorney-client relationship formerly established and still existing between himself and Fields. Counsel thus found himself placed in the legally precarious position of having to “walk the tightrope” between safeguarding the interests of the accused on the one hand and retaining the prior confidences of Fields on the other. Such a rope is too narrow. Such a walk is too long. The possibility of falling is too real. The probability of prejudicing the accused is too great. The basic underlying principle which condemns the representation by an at[60]*60torney of conflicting interests seeks to achieve as its purpose no more than this — to keep counsel off the tightrope. The orderly administration of justice requires that an attorney not be placed in the position where he must choose between conflicting interests. Counsel for the accused was placed in that position in this case. The late Judge Brosman, writing for a unanimous Court in United States v McCluskey, 6 USCMA 545, 20 CMR 261, eloquently stated the principle in the following manner:
“It may be accepted as settled law in this Court that, since a lawyer is bound by professional duty to avoid divulgence of a client’s confidences to the disadvantage of the latter, doubts concerning equivocal or apparently inconsistent conduct on the part of the attorney must be resolved against him — that is, it must be regarded as having been antagonistic to the best interests of his client. See In re Boone, 83 Fed 944, 952 (ND Cal). This rule stands as a rigid — perhaps even a dogmatic — one. We are sure that it exists of necessity, not only for the purpose of circumventing the dishonest practitioner’s malfeasance, but also to prevent the upright lawyer from placing himself in such a position as to require him to choose between conflicting duties. People v Gerold, 265 Ill 488, 107 NE 165, 177, and authorities there cited. Thus, regardless of the purity of his motives, it is demanded that the lawyer avoid the very appearance of that wrongdoing which, in obedience to the important policy dictating this privileged relationship, the courts are impelled to deplore — for ‘no rule in the ethics of the legal profession is better established nor more rigorously enforced than this one.’ ”
We are convinced that defense counsel acted in good faith, but this does not affect our holding because we believe that he nevertheless failed to realize the full implication of his prior association with Fields as it related to his duties to the accused. E.g., Tucker v United States, 235 F2d 238 (CA9th Cir) (1956) ; Craig v United States, 217 F2d 355 (CA6th Cir) (1954). Defense counsel made no effort to examine his former client on the question of whether the accused had actually purchased the weapon from him. He never interrogated the witness on the fact of his theft of the pistol or whether it came from a Government source. Yet, it is well settled that it is not sufficient in a case of this kind to show merely that someone was convicted for the actual larceny. Kirby v United States, 174 US 47, 19 S Ct 574, 43 L ed 890. These defects in the examination can reasonably have resulted from defense counsel’s previous connection with the witness. Since he had pleaded him guilty of stealing the pistol and subsequently selling it to the accused, defense counsel may well have taken these facts as established — to the patent disadvantage of his present client, the accused.
Moreover, the evidence relating to the accused’s knowledge that the gun was stolen was weak. In his direct testimony the witness implied that he had told the accused before the sale that the weapon was an Army .45. On cross-examination, he said that he told the accused that it was a stolen gun only after the transaction had been completed. On redirect examination, trial counsel asked him one question: “Who defended you in your court-martial [for the larceny] ?” The witness identified defense counsel as his lawyer. The question is so unusual that it has given us considerable pause. After much reflection, only two tactical possibilities suggest themselves as the reason for the question. The first is that the question was intended to raise the duality of defense counsel’s representation. But if that was the reason, it would logically seem that trial counsel would follow up the question with the request that the accused be asked if he desired to retain his lawyer, despite the inconsistent position which the lawyer was then shown to occupy. Surely trial counsel would not raise an issue which he recognized as error without attempting to cure the situation by some positive election by the accused reflected in the record. We are constrained, therefore, to conclude that that was not trial counsel’s purpose.
The second tactical possibility is that [61]*61the question was asked for the specific purpose of having the known answer detract from the accused’s case and fortify the prosecution’s case. How could that be accomplished? Simply-by creating the impression that, because of his previous relationship with defense counsel, the witness gave him favorable answers in his cross-examination. Thus, the court members would be invited to disbelieve the testimony elicited on cross-examination favorable to the accused and credit only the witness’ damaging direct testimony. Of course, it may be that trial counsel’s motives were not so subtle, and that the question was one of pure chance. That fact, however, would not detract from the very real risk that the court-martial could construe the answer as we have indicated. Here again, therefore, defense counsel’s duality of representation could reasonably have harmed the accused.
The Government vigorously contends that a perusal of the record illustrates that defense counsel effectively represented the accused 'and that his trial tactics and strategy were proper and correct. This argument falls short of the mark because the test is not whether counsel could have done more by way of further cross-examination or impeachment of his former client, but whether he did less as a result of his former participation. We have often said that the interests of justice require that “the appearance of evil should be avoided as well as the evil itself.” United States v Hill, 6 USCMA 599, 20 CMR 315; United States v McCluskey, supra; United States v Walters, 4 USCMA 617, 16 CMR 191. It is unnecessary to don “presbyopic spectacles” in this case to find the appearance of evil — it is readily apparent to the naked eye.
Other than the single disclosure by Fields that the defense counsel had previously represented him before a court-martial, the record is silent as to any indication that the accused knew prior to trial of counsel’s conflicting interests and that he consented to be represented by this counsel. Paragraph 48c, Manual for Courts-Martial, United States, 1951, in discussing the duties of defense counsel, requires that an accused be informed of any interest his counsel may have “in connection with the case,' any ground of possible disqualification, and any other matter which might influence the accused in the selection of counsel.” Good practice demands that such disclosures be made a matter of record and brought to the attention of the law officer prior to arraignment so that the latter may assure himself the' accused is fully cognizant of the limitations and restrictions placed upon his counsel. With the benefit of this information an accused can make an enlightened election whether to retain appointed counsel or seek a replacement.
We conclude, therefore, that the accused was denied the effective assistance of counsel as a result of defense counsel’s prior representation of Fields.
II
Next, we turn our attention to the second granted issue, which deals with the sufficiency of the evidence to support the finding of value of the pistol allegedly purchased by the accused. The specification charged the accused with having unlawfully purchased a stolen pistol of the value of $53.00, and a • court-martial found him guilty as charged. Value becomes an important element in this case because the purchase of stolen property valued in excess of $50.00 permits the imposition of a maximum punishment of confinement at hard labor for three years, whereas if the value is less than $50.00, but more than $20.00, the maximum period of confinement may not exceed one year. Paragraph 127c, Table of Maximum Punishments, Manual for Courts-Martial, supra.
It therefore becomes necessary to examine the evidence adduced at trial to establish this essential element. Fields had testified that while on guard duty he had stolen the pistol from the battalion guardhouse. This theft had occurred some seven months prior to the time the pistol was allegedly sold to the accused. He further testified that at the time of the theft the pistol was “loose” and that most of the bluing [62]*62had been rubbed off, and that one of the grips of the handle was missing. The only evidence introduced by .the prosecution to establish value was a stipulation that the pistol was listed on an official Army Price List as having a value of $53.00. The defense counsel, on the other hand, had introduced a stipulation that a United States Army .45 caliber pistol is “readily obtainable on the legal civilian market at a price ranging from approximately $20.00 to $45.00.” The weapon itself was not introduced into evidence nor was it ever exhibited to the court members.
The Manual for Courts-Martial, supra, provides that items of Government issue “which were serviceable government property at the time they were stolen are deemed to have values equivalent to the prices therefor as listed in official publications.” Paragraph 200a (7), Manual for Courts-Martial, supra. We have on several occasions expressly sanctioned the use of official Government price lists to establish the value of Government property and equipment. United States v Leal, 7 USCMA 15, 21 CMR 141; United States v Steward, 6 USCMA 531, 20 CMR 247. In the instant case, however, the record is silent as to any evidence that the pistol was considered to be in “serviceable” condition at the time it was purchased by the accused. Furthermore, no effort was made to establish the amount by which the price list value of the pistol was decreased by the defects which were present when the sale was consummated. Surely it cannot be seriously contended that the pistol in question had the same value as one without the defects described by Fields. It would have been an easy matter to have fixed the precise value of the pistol by the testimony of persons who were expert in that field. Had this been done, appellate tribunals would not be forced to grope blindly in the dark in an effort to determine if there is sufficient evidence to sustain the finding by the court-martial. We find in this ease that there was not sufficient evidence to sustain the finding of a value of $53.00.
In view of our holding on the first granted issue, the decision of the board of review is reversed. Although the accused entered a plea of guilty to the offense of carelessly discharging a firearm, we deem it appropriate to set aside the findings of guilty of all charges, together with the sentence, and we so direct. United States v Lovett, supra. A rehearing may be ordered.
Chief Judge Quinn concurs.