Issue before the Court: Whether an attorney’s suspension in the Second Circuit during defendant’s trial required reversal of trial either because of reciprocal suspension policy or due to counsel’s conflict in failing to inform defendant of the suspension.

Held: Nope, attorney was still licensed in New York and no rule required counsel to advise his client of the suspension.

Discussion: In November 2013, Mr. Burgos retained Andres Aranda to represent him. On May 15, 2015, the Second Circuit suspended Aranda from practice effective 28 days hence, based on misconduct, a prior disciplinary history, and deficient performance. The Circuit directed Aranda to inform his clients before that court and notify the “courts and bars” where he was a member. On July 30, 2015, Mr. Burgos’ trial began with Aranda as his counsel. In February 2016, two weeks after the court sentenced Mr. Burgos, the Appellate Division, under the reciprocal disciplinary rules, suspended Aranda “nunc pro tunc to May 15, 2015.”

The COA, recognizing that Aranda had a due process right to contest his discipline in New York, concluded that he was properly licensed at the time of Mr. Burgos’ trial. Finding no rule that would require Aranda to have notified Mr. Burgos of his disciplinary issues, the Court used its notoriously “‘flexible’ standard for analyzing [IAC] claims” to find “meaningful representation” even in the absence of disclosure to Mr. Burgos and questionable performance at trial.

CAL Observes: Hard to imagine that anyone of us would want an attorney who was suspended for serious misconduct in federal court and would any day almost assuredly be suspended in New York, under the reciprocality rules, to represent ourselves, a family member, or a friend in a serious felony trial. Yet, out of respect for Aranda’s due process rights to continue to make a living while shortchanging clients, the Court endorsed his withholding from his client the pertinent fact of his suspension for dereliction. Why the fact of Aranda’s suspension would not “reasonably be relevant to the client[’s] . . . decision to continue counsel’s representation” (Std. 4.1.7(c)) is unexplained by the Court. Moreover, for all Aranda knew, the state suspension order would come in the midst of Mr. Burgos’ trial, yet he decided his client didn’t need to know that a mistrial might be necessary if he continued.

This decision seemingly reflects the Court’s continued low bar for what constitutes proper representation of criminal defendants. We can and should expect better.