“Public Reprimand as a Stand-Alone Sanction for Lapsed or Non-Member Counsel”
Commentary on In Re Cruikshank, 22-90079 (2d Cir. Aug. 13, 2025)

1. Introduction

In In Re Cruikshank, the United States Court of Appeals for the Second Circuit confronted an attorney-discipline matter springing from the neglect of a criminal defendant’s appeal. Attorney Allan Baldwin Cruikshank, Jr. had allowed deadlines to lapse, ignored Court directives, and failed to communicate both with his client and with successor counsel. While the Court’s earlier orders already barred him from practicing before the Circuit until further leave, his bar membership had expired in 2022. The central issue therefore became: What disciplinary response is appropriate when the lawyer is no longer a current member of the Court’s bar?

Acting under Federal Rules of Appellate Procedure (“FRAP”) 46(b)–(c) and Local Rule 46.2, the Court publicly reprimanded Cruikshank and, critically, required him to append the reprimand to every future application for admission or pro hac vice appearance in the Second Circuit. Although issued as a non-precedential “Summary Order,” the decision crafts a clear procedural template and signals the Court’s willingness to impose public reprimand as a free-standing sanction even when suspension is technically unavailable.

2. Summary of the Judgment

• The Court found Cruikshank neglected his client’s appeal (United States v. Choudhry, No. 21-2011) and defaulted in the disciplinary show-cause proceeding.
• Mitigating factors: no apparent dishonesty, no demonstrable prejudice to the client, misconduct confined to one appeal.
• Aggravating factors: extensive experience, prior discipline, pattern of similar neglect, prejudice to judicial resources, continuing misconduct after notice.
• Sanction: Public Reprimand; obligation to attach the order to any later admission or appearance motion; Clerk directed to circulate the order to other disciplinary bodies.

3. Analysis

a. Precedents Cited and Their Influence

The panel anchored its sanctioning analysis in a well-charted matrix of decisions and ABA Standards:

• In re Gordon, 780 F.3d 156 (2d Cir. 2015) — identified systemic prejudice created by counsel’s delays; used here to show injury to the judiciary and public.
• In re Warburgh, 644 F.3d 173 (2d Cir. 2011) — default in a disciplinary matter constitutes an independent violation; mirrored by Cruikshank’s failure to respond.
• In re Roman, 601 F.3d 189 (2d Cir. 2010) — post-notice misconduct magnifies culpability; cited to brand Cruikshank’s continued neglect as “significant aggravation.”
• In re DeMaio, 2023 WL 4567990 (2d Cir. 2023) — treated “one-case” misconduct as a mitigating factor; adopted in Cruikshank.
• In re Hochbaum, 649 F. App’x 80 (2d Cir. 2016) — rejected vague “stress” excuses; same reasoning applied.
• In re Schwartz, 665 F. App’x 99 (2d Cir. 2016) — persistence after show-cause notice as aggravation; echoed.
• ABA Standards for Imposing Lawyer Sanctions, §9.22 & §9.32 — enumerated aggravating/mitigating factors; panel organized its discussion around those standards.

Collectively, these authorities guide the Court toward a proportionate sanction that protects the public, preserves judicial resources, and deters future misconduct.

b. Legal Reasoning

The decision unfolds in three logical steps:

1. Jurisdiction & Authority. FRAP 46(b) permits a Court of Appeals to discipline an attorney after reasonable notice and opportunity to show cause. Local Rule 46.2 supplements this power, extending it to “other appropriate corrective measures.” Notably, the Court emphasized its authority even though Cruikshank’s bar membership had lapsed — a subtle but important confirmation that disciplinary jurisdiction extends beyond current admission status when the misconduct occurred before the Court.
2. Fact-finding & Factor Balancing. The panel catalogued Cruikshank’s previous letters of caution and admonitions, his default in the show-cause proceeding, and his failure to aid successor counsel. Against this history, the panel applied ABA factors to weigh mitigation (absence of dishonest motive) against aggravation (pattern, experience, prejudice).
3. Sanction Selection & Tailoring. Suspension was deemed “likely warranted” but impossible because the attorney was not a member of the Circuit’s bar. The Court therefore adopted the public reprimand, but fortified it by:
   • Requiring disclosure with every future admission or pro hac vice application, ensuring transparency before any tribunal consents to his appearance;
   • Ordering broad dissemination to state and federal disciplinary bodies.
   This disclosure mechanism functions as a practical analogue to suspension, because any future judge or admissions committee will have immediate, mandatory notice of the misconduct.

c. Anticipated Impact

• Template for “Lapsed-Bar” Cases. Attorneys who allow their Circuit admission to expire cannot escape discipline; public reprimand plus mandated disclosure fills the remedial gap when suspension is procedurally unavailable.
• Enhanced Transparency. The mandatory-notice requirement mirrors the “candor” duties in ABA Model Rule 8.1, promoting a culture of up-front disclosure to other courts.
• Deterrence of Neglect in Criminal Appeals. By explicitly noting the liberty interests at stake, the Court signals special scrutiny of post-conviction neglect, likely prompting defense bars to tighten appellate practice management.
• Resource Conservation Precedent. The opinion repeatedly frames wasted judicial time as prejudice. Future panels may cite this to discipline counsel even where the client suffers no direct harm.

4. Complex Concepts Simplified

• Summary Order. A disposition without precedential effect under Second Circuit Local Rule 32.1.1. Although non-binding, it is citable and often persuasive.
• Public Reprimand. The mildest form of public discipline: a formal, published statement of misconduct. More severe sanctions include suspension and disbarment.
• Pro hac vice. Latin for “for this occasion.” It allows out-of-district lawyers to appear in a specific case with the court’s permission.
• Aggravating vs. Mitigating Factors. Circumstances increasing (aggravating) or decreasing (mitigating) the severity of a sanction. The ABA Standards enumerate typical factors, e.g., prior discipline (aggravating) or absence of selfish motive (mitigating).
• Show-Cause Order. A directive requiring a party to explain why the court should not take the proposed adverse action — here, disciplinary sanctions.

5. Conclusion

In Re Cruikshank crystallizes an important procedural point: the Second Circuit retains the power — and will exercise it — to impose public discipline on attorneys whose bar memberships have lapsed when the misconduct concerns a case before the Court. By coupling the reprimand with a perpetual disclosure obligation, the panel ensures that future tribunals are fully apprised, effectively extending the sanction’s reach beyond the life of this proceeding. For practitioners, the decision underscores three imperatives: scrupulous adherence to appellate deadlines, proactive communication with the Court and clients, and immediate engagement with disciplinary inquiries. For courts and disciplinary bodies, it supplies a reasoned framework for balancing mitigating and aggravating factors when conventional suspension is unavailable. Even as a “Summary Order,” the ruling is poised to carry persuasive weight in analogous cases across federal and state systems.