Mett

Opinion by Judge GONZALEZ; Concurrence by Judge KLEINFELD.

On February 1, 1989, Honolulu police arrested Assistant United States Attorney Leslie E. Osborne Jr. for drunk driving. Two days later, he hired solo practitioner Benjamin B. Cassiday III to represent him in connection with that charge. Sometime later in February, petitioner Center Art Galleries — Hawaii Inc. (“Center Art”), whom Osborne was prosecuting, asked Cassiday to represent it as local counsel. All parties appear to have waived any possible conflict orally, and Cassiday assumed the representation. Nothing was put in writing, and the district court was not informed.

In March 1989, the United States Attorney for Hawaii, Daniel Bent, learned of the conflict and telephoned Cassiday, urging him to withdraw from representing Osborne. Cas-siday agreed to do so, but did not actually withdraw as counsel of record until just before Osborne pleaded guilty on April 27.

On May 4, 1990, following a five-month trial before Judge Harold M. Fong, a jury convicted petitioners Center Art, Mett, and Wiseman of numerous counts of mail and wire fraud in connection with the sale of art works. Petitioners’ primary counsel in that trial…

Concurring:

I concur in the persuasive analysis by Judge Gonzalez. I write separately to illuminate a different path to the same result. The majority assumes without deciding that there was a conflict of interest. All three of us agree that, in that event, adverse effect is still necessary and did not exist. I would not even reach the issue of adverse effect, however, because I think there was no conflict of interest. Because the term is often used loosely without much analysis, to bad effect, it is useful to focus separately upon it.

Mr. Cassiday represented two different people whose interests might cause them to harbor ill feeling toward each other, a prosecutor and a defendant. But on the matters in which he represented them, neither had an *1538 interest in having Mr. Cassiday conduct his advocacy in a manner adverse to the interest of the other. A conflict of interests arises when a lawyer’s fiduciary duty to one client obligates him to act in a way contrary to the manner in which his fiduciary duty to another ehent requires. Mr. Osborne’s drunk driving case would lead to no better or worse results depending on what Mr. Cassiday did in Center Art Gallery’s case, nor would…