UNITED STATES v. MOUZIN

[47] Written by Circuit Judge POOLE with Circuit Judge FERGUSON dissenting.

Carvajal claims that he was denied effective assistance of counsel because, while the trial was going on, his counsel, Palacios, was disbarred from practicing before this court of appeals for conduct not related to this case, and because that fact was not disclosed to him until the trial was over. He argues for a per se rule that if a lawyer is disbarred during a trial the client must be told; that otherwise the trial cannot proceed, and any further attempted professional services by the lawyer must be deemed legally ineffective under the Sixth Amendment to the United States Constitution. Carvajal also complains that since it was the trial judge who learned of the disbarment and conveyed that information to the lawyer, the judge should personally have told him, the client, of that event and should have halted the trial unless the client knowingly waived his right to "effective representation" of counsel. Alternatively, Carvajal argues that in failing to tell him about Palacios' problem, the judge fostered a conflict of interest between lawyer and client because he put the lawyer to the embarrassing burden of disclosing to his client that he had been adjudged to have committed unprofessional conduct.

Palacios continued to act as Carvajal's lawyer to the end of trial, and the record is not clear exactly when Carvajal learned of the order of disbarment. For discussion purposes, we will assume that Carvajal did not get the information until the trial had concluded.

As we have said above, by the order of the Ninth Circuit, Palacios was disbarred from practicing before this court because of his conduct in unrelated cases "unbecoming a member of the bar of the court" and "failure to comply with * * * rules * * of the court." Fed.R.App.P. 46(b) and (c). The conduct involved failure to meet deadlines in pending appeals, failure to prosecute an appeal, and giving an insufficient check in payment for court reporter services. The effect such an adjudication in this court will have upon a lawyer's status in a district court will depend upon the rules of the latter court. We therefore must turn to the practice and rules of the district court in which the trial was pending.

Local Rule 2.6.2 of the United States District Court for the Central District of California provides:

Upon receipt of reliable information that a member of the bar of this court has been suspended or disbarred from practice by the order of any court or administrative agency, this court shall immediately impose a like order of suspension or disbarment. The attorney so suspended may make application to the Chief Judge for reinstatement by regularly noticed motion.

Central District Local Rule 2.6.4 further establishes a procedure for referral of charges which have not yet been adjudicated by a court or administrative agency to a three-judge panel. That panel will conduct a hearing upon notice and the lawyer will have an opportunity to appear and be heard. This rule contemplates a different situation and does not on its face resolve the problem here.

In this case, the trial judge, after receiving notice of the order disbarring Palacios from practicing before the Ninth Circuit, conferred with the Chief Judge of the district court. Their consensus was that the trial ought not be halted. The district judge then discussed the disbarment order with Palacios and urged him to take it up with his client. The record discloses no indication of an intent by either judge or counsel to suspend the trial; nor does it show that the matter was ever revealed to counsel for the co-defendant.

Read literally, Rule 2.6.2 would seem to call for the immediate entry of a "like order" disbarring Palacios from practicing in the Central District. Yet neither the trial judge nor the Chief Judge accorded such significance to the rule, apparently not viewing its requirement as immediate. The announcement of a disbarment order may come at many different stages of a trial court proceeding and may produce consequences of major or only minor nature. The rule has a salutary purpose but obviously an automatic and immediate implementation could in many situations bring about litigation disaster. How, when, and under what circumstances such implementation should be accomplished would seem best left to the sound discretion of the court which promulgated it and the judges who must enforce it. We are therefore constrained to defer to the district court's reading to the extent that such a construction does not involve conflict with an order of this court, the Federal Rules of Civil Procedure, case or statutory law, or the Constitution of the United States. We see no such conflict. On the contrary, the record shows an ongoing jury trial of two defendants who were charged with multiple and very serious criminal offenses which was in its closing stages; that the effect of receipt of the appellate court's order confronted the court with a crucial decision whether to plunge the trial into chaos by the abrupt and sudden disqualification of the counsel for one of the defendants. Resolution of that problem required weighing conflicting rights of fair trial, speedy trial, depriving a party of counsel of his own selection, and thorny questions of double jeopardy. See, e.g., Arizona v. Washington, 434 U.S. 497, 505, 98 S.Ct. 824, 830, 54 L.Ed.2d 717 (1978) (sua sponte declaration of mistrial without a showing of "manifest necessity" therefor may trigger bar of double jeopardy). Faced with these alternatives, the trial court concluded that exigent circumstances justified postponing the immediate entry of a local disbarment order. This was not the usual situation in which the local rule could be applied easily and without serious disruption of the judicial process. The court had realistically a choice only between the Scylla of going ahead with trial, or the Charybdis of throwing the case into confusion and disarray. We find its decision reasonable and valid.

Some parallel to the trial court's dilemma can be found in many cases where, during trial, an attorney, by design, excess of zeal, or other reason, engages in serious contumacious or provocative conduct. A trial judge contemplates sanctions; but, weighing the length of trial already expended, the difficulty of marshaling witnesses and evidence for a second trial, the interest of a defendant in a trial in which his rights are accorded, and the public's interest in fair, but also prompt and just, resolution of the issue, the judge will often elect to stay his sanction and let the trial come to orderly conclusion, rather than risk or declare a mistrial. See, e.g., United States v. Altamirano, 633 F.2d 147 (9th Cir. 1980), cert. denied, 454 U.S. 839, 102 S.Ct. 145, 70 L.Ed.2d 120 (1981).

We conclude that the district court was not required by its Local Rule 2.6.2 immediately and automatically to enter an order disbarring counsel and disqualifying him from further participation in the trial.

This is not to say that Palacios ought not to have shared the information with his client, who then could have been heard as to his views. But we do conclude that neither the ends of justice nor Local Rule 2.6.2 of the Central District of California required the court immediately and automatically to enter an order disbarring Palacios and disqualifying him from further participation, even though Palacios disregarded the judge's direction that Carvajal be told the unanticipated turn of events.

Even if we had concluded that under its local rules the district court in this case should have entered a "like order" pursuant to Local Rule 2.6.2, we would reject the argument that disbarment by the circuit court turned Palacios' continued services in Carvajal's behalf ineffective under the Sixth Amendment.

Disbarment is a punishment or penalty imposed upon a lawyer, who is accordingly entitled to procedural due process for himself before imposition of sanction, In re Ruffalo, 390 U.S. 544, 547, 88 S.Ct. 1222, 1224, 20 L.Ed.2d 117 modified, 392 U.S. 919, 88 S.Ct. 2257, 20 L.Ed.2d 1380 (1968), and who is further still under obligation — if it is legally possible — to protect his client's interests against the indictment with which he is still charged.

Though admission to practice before a federal court is derivative from membership in a state bar, disbarment by the State does not result in automatic disbarment by the federal court.

Id. at 547, 88 S.Ct. at 1224. "Disbarment being the very serious business that it is, ample opportunity must be afforded to show cause why an accused practitioner should not be disbarred." Theard v. United States, 354 U.S. 278, 282, 77 S.Ct. 1274, 1276, 1 L.Ed.2d 1342 (1957). Ample precedent supports the position that Palacios was not automatically disqualified, and that his subsequent services would not without regard to their intrinsic quality, be deemed "ineffective."

In United States v. Hoffman, 733 F.2d 596 (9th Cir.), cert. denied, ___ U.S. ___, 105 S.Ct. 521, 83 L.Ed.2d 409 (1984), Hoffman's lawyer, Vernell, a licensed member of the Florida bar, was, during a trial in the district court of Arizona, suspended by Florida from the practice of law for a period of six months, having suffered misdemeanor convictions for failure to file income tax returns, and because he had counseled two clients to enter guilty pleas and then to challenge their pleas as void due to his conflict of interest in representing them. A local rule for the District of Arizona required an attorney subject to disciplinary action by the bar of another jurisdiction to report that matter to the court. Another rule provided that, upon suspension or disbarment by any court of competent jurisdiction, such attorney would be "forthwith suspended from practice before this court, and [unless upon good cause shown within 40 days], he will be disbarred." D.Ariz.R. 7(c).

Vernell did not inform the court of his disbarment during the trial, and the Arizona district court did not order him disbarred from that forum until a month after his client Hoffman had been sentenced. In a post-judgment petition for relief under 28 U.S.C. § 2255, Hoffman argued that upon his Florida disbarment, Vernell was no longer "counsel" within the meaning of the Sixth Amendment, that the trial judge would have been obligated to suspend him immediately had he known of the Florida suspension, and that he should be deemed to have been disqualified from the time of his Florida suspension. We rejected that argument.

We began in Hoffman by nothing that the Sixth Amendment guarantee of counsel means assistance by an attorney who has been found qualified to represent a client as evidenced by admission to the bar. Id. at 599. But we refused to apply a per se rule that in the federal court, representation by a lawyer suspended from practice by a state bar automatically results in the denial of the Sixth Amendment right to counsel. Id. at 601. A defendant must show actual errors and omissions by counsel that a conscientious advocate would not have made, and which prejudiced him. Id. at 603.

Vernell was in fact reinstated the following year, long after sentence and judgment, but that does not affect the application of the same principle here. Hoffman teaches that the fact that an attorney is suspended or disbarred does not, without more, rise to the constitutional significance of ineffective counsel under the Sixth Amendment. Rather, a defendant must ordinarily point to specific conduct which prejudiced him in order to raise the constitutional claim. To constitute ineffective representation by counsel

Defense counsel's errors or omissions must reflect a failure to exercise the skill, judgment, or diligence of a reasonably competent criminal defense attorney — they must be errors a reasonably competent attorney acting as a diligent conscientious advocate would not have made, for that is the constitutional standard.

Cooper v. Fitzharris, 586 F.2d 1325, 1330 (9th Cir. 1978) ( en banc) (footnote omitted), cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 793 (1979). See also United States v. Butler, 504 F.2d 220, 223 (D.C. Cir. 1974) (per curiam) (that counsel was not a member of the local bar was not alone sufficient to find the right to effective counsel breached; but significant trial errors and other prejudicial considerations, in addition to nonmembership, warranted remand). The majority in Hoffman therefore rejected the view that a presumption of ineffectiveness arises in the trial forum when a lawyer is suspended from practice by his bar state. 733 F.2d at 603-04 (Nelson, J., dissenting).

Our rejection of a per se rule in Hoffman was not unprecedented. In analogous situations, other courts have rejected similar per se rules. For example, the Supreme Court rejected the proposition that disbarment in a state results in automatic disbarment in federal court. Ruffalo, 390 U.S. at 547, 88 S.Ct. at 1224; Theard, 354 U.S. at 281-82, 77 S.Ct. at 1276. Disciplinary orders affecting an attorney's bar status do not warrant the application of per se rules. United States v. Bradford, 238 F.2d 395 (2d Cir. 1956), cert. denied, 352 U.S. 1002, 77 S.Ct. 558, 1 L.Ed.2d 546 (1957) (right to counsel not violated where defendant was represented in federal court by member of New York bar who had not applied for admission to practice in the federal bar); accord, Derringer v. United States, 441 F.2d 1140, 1141 (8th Cir. 1971) (per curiam) (representation by counsel who was member of state bar but not admitted to federal district court did not deprive defendant of effective assistance of counsel).

A defendant's right to effective assistance of counsel would be violated where he is represented by a person posing as a lawyer who had not been admitted to any bar. E.g., Solina v. United States, 709 F.2d 160, 169 (2d Cir. 1983) (reversing denial of defendants' motion to vacate conviction where his attorney was a graduate of accredited law school who twice failed New York bar examination and who had never been admitted to any other bar); Harrison v. United States, 387 F.2d 203, 212-14 (D.C.Cir. 1967) (conviction reversed because government used defendant's statements from earlier trial in which defendant was represented by ex-convict posing as a lawyer), rev'd on other grounds, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968). The principle applied in such cases is that one never admitted to practice law and therefore who never acquired the threshold qualification to represent a client in court cannot be allowed to do so, and no matter how spectacular a performance may ensue, it will not constitute "effective representation of counsel" for purposes of the Sixth Amendment. Conversely, the infliction of discipline upon an attorney previously qualified and in good standing will not and should not transform his services into ineffective assistance.

In a somewhat analogous situation, a decision of the Seventh Circuit is informative. In United States v. Merritt, 528 F.2d 650 (7th Cir. 1976), (per curiam) counsel appointed to represent a defendant in an Indiana trial had passed the Iowa bar examination but, unknown to the court, had failed the Indiana examination three times (and therefore was ineligible for a retake until completion of an additional year of study). He had apparently had no prior trial experience. On appeal the defendant claimed ineffective assistance of counsel. The Seventh Circuit said:

[t]he bar examination failures and the inexperience of appointed counsel create an appearance of inadequate representation that is compounded by the cumulative effect of several incidents which provide reasonable grounds for questioning counsel's professional judgment and skill. Standing alone none of these incidents would lead us to conclude that counsel had not met "a minimum standard of professional representation." Under all the circumstances of this case, however, we think that standard was not met.

Id. at 651 (citation omitted). In other words, since the attorney had met the qualifications of a sister state, it could not be said, without looking to the trial record, whether, although not a member of the Indiana bar, he did or did not possess the "minimum standard" to represent a defendant in court. In Hoffman we also looked to see whether counsel, despite the Florida suspension, met our requirement of "reasonably competent criminal defense attorney." Hoffman, 733 F.2d at 603.

We adhere to our stated standard. Neither suspension nor disbarment invites a per se rule that continued representation in an ongoing trial is constitutionally ineffective. Admission to the bar allows us to assume that counsel had the training, knowledge, and ability to represent a client who has chosen him. Continued licensure normally gives a reliable signal to the public that the licensee is what he purports to be — an attorney qualified to advise and represent a client. But it is an undeniable fact of experience that lawyers unhappily incur sanctions ranging from censure to disbarment; that sometimes that discipline flows from revealed incompetence or untrustworthiness or turpitude such as to deserve no client's confidence. All we need hold here is that a lawyer's services were ineffective on a case, not a per se, basis.

Indeed, Carvajal does not contend, and the record does not show, that the conduct which provoked our order was such as reasonably could be said to have affected or impaired his trial performance. The only suggestion of shortcoming presented by Palacios appears in his failure to communicate the fact of disbarment to the client and to discuss the implications, if any, that might ensue. Carvajal argues the existence of some linkage between the failure to advise him of the disbarment and Palacios' failure to submit a timely motion on double jeopardy grounds. But there is no explanation of how the omission to submit the motion was, on the record of this case, such an omission as a reasonably competent attorney would not have made, or how the omission prejudiced him. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064-68, 80 L.Ed.2d 674 (1984) (to make successful claim, a defendant must show that counsel's performance fell below objective standard of reasonableness, identifying such with particularity, and must show prejudice — that but for counsel's errors, the result would have been different).

We therefore hold that the disbarment of Palacios during trial did not violate Carvajal's Sixth Amendment right to effective assistance of counsel. Palacios retained the ability to render effective assistance of counsel to Carvajal at trial, and the record does not show his failure to do so despite his disbarment.

Our holding that Carvajal was not denied effective assistance of counsel is not changed by Carvajal's argument that the district judge was obligated to inform him directly of Palacios' disbarment and to obtain a waiver of Carvajal's right to "effective" counsel. Obviously, full disclosure to the client by counsel of such a happening during trial would make sense and could have settled this entire issue. The district judge recognized this, stating to Palacios, "I think you are under obligation to talk to your client about [the disbarment]."

Carvajal's position is that the trial had to be halted unless he knowingly waived his right to proceed with the same counsel or without counsel. We do understand a trial judge's reluctance to terminate the entire trial, or to wait for a new attorney to familiarize himself with defendant's case. In such a situation, caution, as well as the judge's concern for protection of all those before the court, should prompt the court to make certain that a defendant be informed of so significant a matter which might affect the person's interests. The district judge urged counsel himself to tell his client. Had he followed through, lawyer and client could possibly have settled all questions between them. But the omission to do so does not constitute grounds for disturbing the conviction.

We also reject the argument that by not informing him of Palacios' disbarment, the trial judge created a conflict of interest between him and counsel. We rejected an analogous argument in Hoffman where the defendant claimed counsel's failure to inform the court of his Florida suspension put the two in conflict. 733 F.2d at 601. Instead, we adopted the standard set forth by the Supreme Court in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), for determining when a lawyer's conflict of interest violates his client's right to counsel. A defendant must demonstrate "that his counsel actively represented conflicting interests." Id. at 350, 100 S.Ct. at 1719. In Hoffman, we concluded that the defendant failed to show an actual conflict that adversely affected his counsel's performance. 733 F.2d at 602.

The same is true here. There is nothing to indicate that Palacios was so affected by his personal adversity that he was thereafter beset with conflicting interests prejudicial to the conduct of Carvajal's trial, or that he was placed in an adversarial position relative to Carvajal. Cf. id. Moreover, it was the district judge who informed Palacios of his disbarment. There was no fraud on the court, and this is not a case where a layman posing as an attorney may risk fear of exposure, as in Solina, 709 F.2d at 164. The concern in Solina that a layman posing as an attorney might fear that vigorous representation could lead to inquiry into his background and discovery of his lack of credentials is not present here. See also United States v. Cancilla, 725 F.2d 867, 870 (2d Cir. 1984) (per se rule that right to effective assistance of counsel violated where, unknown to defendant, trial counsel engaged in activity related to conduct for which defendant was convicted). Nor does this case resemble United States v. DeFalco, 644 F.2d 132, 133 (3d Cir. 1979) (en banc) (defendant may have been denied effective assistance of counsel absent waiver, if he was unaware that his attorney, while representing him on appeal, was under indictment and had accepted a plea bargain in the same federal district court).

Carvajal suggests that Palacios may have feared "additional disciplinary censorship from the district court," and that this might have prevented him "from competing vigorously with the government before the trial court" on Carvajal's behalf. But the district judge informed Palacios that he had discussed the disbarment with the Chief Judge of the district court, and that both judges agreed to allow Palacios to complete his representation of Carvajal. Thus, under these facts we fail to see "any constraint on counsel's complete and exuberant presentation." DeFalco, 644 F.2d at 136. Carvajal's conflict of interest argument is wholly speculative. Neither representation by counsel disbarred during trial, the district judge's failure to inform Carvajal of the disbarment, nor the court's disclosure of the disbarment to Palacios but not Carvajal denied Carvajal the effective assistance of counsel.

The defendants' final argument concerns the propriety of their cumulative sentences on the CCE counts and the substantive predicate narcotics offenses. Both defendants argue that their convictions on predicate narcotics offenses that form the basis for their section 848 convictions are lesser-included offenses. Relying on Brown v. Ohio, 432 U.S. 161, 164-70, 97 S.Ct. 2221, 2224-27, 53 L.Ed.2d 187 (1977), and Jeffers v. United States, 432 U.S. 137, 150, 97 S.Ct. 2207, 2216, 53 L.Ed.2d 168 (1977), the defendants argue that their conviction on the greater CCE offense requires this court to vacate both their convictions and sentences on the lesser-included predicate narcotics offenses. The Supreme Court's most recent pronouncement on the relationship between the CCE offense and the charged substantive predicate narcotics offenses, counsels against the defendants' interpretation of these two cases.

In Garrett v. United States, ___ U.S. ___, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985), the Supreme Court construed the CCE offense as constituting an offense separate from the predicate narcotics offenses. Similarly, the Court interpreted the intent of the Ninety-First Congress as desiring the imposition of cumulative punishment for the CCE and predicate offenses. Accordingly, we affirm the district court's imposition of cumulative sentences on the defendants' separate convictions for violating section 848 and the separate substantive narcotics violations contained in the indictment.

We AFFIRM the defendants' convictions on all counts except for defendant Mouzin's convictions on Counts Eight, Nine, Ten, Eleven, and Thirteen. As to those counts, we REVERSE Counts Eight, Nine, and Thirteen for insufficiency of the evidence and Counts Ten and Eleven for the prejudicial introduction of inadmissible hearsay.

[84] FERGUSON, Circuit Judge, dissenting from Part IV:

I would reverse Carvajal's conviction because his right to Due Process and right to counsel were violated. When a district court and criminal defense attorney have an in camera discussion about the attorney's disbarment and its effect on his continued representation of the defendant, I believe that the defendant has the right to be informed and present. A criminal defendant's constitutional right to be informed that his or her attorney has been disbarred from the trial court in which the prosecution is pending and the court to which any appeal would be made greatly outweighs the majority's concerns of judicial convenience. I must therefore dissent.

On March 15, 1983, this circuit permanently disbarred Carvajal's attorney, Victor Palacios, for failing to meet deadlines in pending appeals, failing to prosecute an appeal, and writing a bad check to a court reporter. United States v. Cortes-Carvajal, No. 82-1700 (9th Cir. Mar. 15, 1983). Rule 2.6.2 of the Local Rules for the United States District Court for the Central District of California provides that the district court "shall immediately impose a like order" disbarring an attorney on receiving reliable information that another court or any administrative agency has disbarred the attorney. Despite the rule's language giving automatic effect to disbarment, the district court permitted Palacios to continue practicing before it and complete the trial. When the court learned of the Ninth Circuit disbarment order, the district judge met with counsel, informed him of the order and the effect of the local rules, and warned him to take some action to appeal the circuit court's order. He further stated that although Palacios would be permitted to continue with the trial, he was "under an obligation to talk to [his] client about it." Despite the court's warning, Palacios did not inform Carvajal of his disbarment.

The most obvious reason for reversing Carvajal's conviction is that his Sixth Amendment right to counsel was violated. The right to counsel contains several guarantees, including the right to competent counsel, the right of a defendant to participate meaningfully in the defense and make important decisions, the right to receive important information, and the right to a loyal attorney, free from conflicting interests. The Majority misanalyzes this case by considering it only as a right to competent counsel situation.

One of the Sixth Amendment's most fundamental guarantees is the right of a criminal defendant to representation by competent counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984); United States v. Tucker, 716 F.2d 576, 579 (9th Cir. 1983). "The right to counsel plays a crucial role in the adversarial system embodied in the Sixth Amendment, since access to counsel's skill and knowledge is necessary to accord defendants the `ample opportunity to meet the case of the prosecution' to which they are entitled." Strickland, 104 S.Ct. at 2063 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 275, 63 S.Ct. 236, 240, 87 L.Ed. 268 (1942)).

Equally important, however, is the defendant's right to participate in the defense. The Sixth Amendment

does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense. It is the accused, not counsel, who must be `informed of the nature and cause of the accusation,' and who must be `confronted with the witnesses against him,' and who must be accorded `compulsory process for obtaining witnesses in his favor.'

Faretta v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 2533, 45 L.Ed.2d 562 (1975). The defendant's right to participate in the defense includes the right to make important decisions, such as waiving attorney representation, see Faretta, 422 U.S. at 821, 95 S.Ct. at 2534, and waiving a jury trial, see United States v. Cochran, 770 F.2d 850, 851 (9th Cir. 1985) (court must ensure defendant's waiver of jury trial is made voluntarily, knowingly, and intelligently). The need to protect the individual's role in the defense is punctuated by the fact that it is the defendant and no one else who confronts a loss of liberty. Faretta, 422 U.S. at 834, 95 S.Ct. at 2540.

The right to participate in one's defense becomes meaningless without the concomitant right to be informed of important developments in the case. Without information, the defendant cannot make intelligent decisions. Courts have repeatedly recognized the need for meaningful communications between attorney and client. See, e.g., Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976) (sequestering defendant during recess between direct and cross-examination improperly interfered with right to counsel); Mastrian v. McManus, 554 F.2d 813, 821 (8th Cir.) (recognizing right to private consultation with attorney), cert. denied, 433 U.S. 913, 97 S.Ct. 2985, 53 L.Ed.2d 1099 (1977); United States v. Allen, 542 F.2d 630, 633 (4th Cir. 1976) (right to counsel violated when defendant denied consultation with attorney during recess), cert. denied, 430 U.S. 908, 97 S.Ct. 1179, 51 L.Ed.2d 584 (1977). Furthermore, courts have invalidated convictions of defendants incapable of communicating effectively with their attorneys regardless of the strength of the government's case. See, e.g., Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896, 903, 43 L.Ed.2d 103 (1975) ("It has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial.").

The constitutional right to counsel also imposes ethical obligations on attorneys. Rules of professional responsibility require an attorney to provide the client with all information needed to make decisions. See, e.g., Martin v. Texas, 694 F.2d 423, 425 (5th Cir. 1982) (failure to inform client of right to appointed counsel on appeal constitutes ineffective assistance of counsel); Gairson v. Cupp, 415 F.2d 352, 353 (9th Cir. 1969) (failure to inform client of right to appeal constitutes ineffective assistance of counsel); Model Rules of Professional Conduct Rule 1.4; American Bar Association Standards for Criminal Justice, The Defense Function § 3.5(a) (1971) ("At the earliest feasible opportunity defense counsel should disclose to the defendant any interest in or connection with the case or any other matter that might be relevant to the defendant's selection of a lawyer to represent him."). The attorney also owes a duty of loyalty to the client. See, e.g., United States v. Alvarez, 580 F.2d 1251, 1256 (5th Cir. 1978) ("[W]e have always considered the undivided loyalty of counsel as essential to due process."); United States v. Jeffers, 520 F.2d 1256, 1262-63 (7th Cir. 1975) (Sixth Amendment requires not only minimum competency but also "counsel whose undivided loyalties lie with his client"), cert. denied, 423 U.S. 1066, 96 S.Ct. 805, 46 L.Ed.2d 656 (1976). This duty of loyalty requires the attorney to place the client's interests above the attorney's personal or monetary interests.

The Majority reviews Carvajal's claim under the traditional ineffective assistance of counsel standard. The majority thus equates the seriousness of the ethical and constitutional violations involved with a counsel's failure to call a witness, for example, or to object to an improper line of questioning. The right to be informed of disbarment strikes at more fundamental concerns than whether an attorney proved to be "incompetent."

Using the traditional ineffective assistance of counsel standard is inappropriate when the attorney's actions, as here, threaten the foundation of the adversary process. The situation here more closely resembles a question of conflict of interest than one of effective assistance of counsel, because this case does not involve an assessment of whether the attorney performed competently. As the court reasoned in Alvarez, 580 F.2d at 1256-57 (footnote omitted):

Unlike competency of representation, where an attorney's conduct may fall anywhere along a continuum ranging from the incompetent to the superlative, conflict-laden representation is not susceptible of such fine gradations. Such representation is invidious, often escaping detection on review, and is tantamount to a denial of counsel itself.

An attorney's refusal to disclose his or her disbarment to the client creates a conflict of interest, rather than being merely ineffective assistance of counsel. Withholding from Carvajal information that Palacios was disbarred so thoroughly violated Palacios' ethical obligations that his representation became meaningless. This nondisclosure, probably more than any other act, illustrates the true allegiance of those attorneys who place their own financial reward above the duties they owe to their clients. This situation presents the worst sort of conflict of interest; attorney deception and self-interest surely destroy the fiduciary relationship with the client. This inherent violation of the Sixth Amendment's right to counsel, present when a person masquerades as a practicing attorney, has prompted the two circuits addressing this issue to adopt per se rules about such attorney conduct. Both courts reversed a conviction under such circumstances, without requiring any showing of prejudice. Solina v. United States, 709 F.2d 160, 168 (2d Cir. 1983) (reversing conviction despite overwhelming evidence of guilt); Harrison v. United States, 387 F.2d 203, 212 (D.C.Cir. 1967), rev'd on other grounds, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968). When attorney misconduct is so severe as to offend one's sense of justice or is so contrary to the notion of ethical behavior as to completely undermine the trust relationship, reversal of a conviction should be automatic.

The Sixth Amendment guarantees more than a disbarred attorney must perform competently for a conviction to stand. Carvajal had a right to know of conversations between his attorney and the judge. The district court even recognized Palacios' serious ethical obligations and instructed him to inform Carvajal. By not informing his client of the disbarment or his conversation with the district court, Palacios violated Carvajal's Sixth Amendment rights.

Our obligation to uphold democratic principles and justice demand that we reverse Carvajal's conviction. The legitimacy of the adversary system depends on a trusting attorney-client relationship. When we ignore the failure of that crucial relationship in a particular case, we undermine our entire criminal justice system. The Majority today ignores that Palacios no longer represented Carvajal's interests.

An independent reason for reversing Carvajal's conviction is that his constitutional right to be present at the conference between Palacios and the district judge was violated. The Constitution guarantees a criminal defendant the right to be present at every critical stage of a trial. See, e.g., United States v. Gagnon, ___ U.S. ___, 105 S.Ct. 1482, 1484, 84 L.Ed.2d 486 (1985) (right guaranteed by Due Process Clause); Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 1058, 25 L.Ed.2d 353 (1970) (right guaranteed by Confrontation Clause); see also Fed.R.Crim.P. 43. The Constitution guarantees the right of the accused to be present at a proceeding "whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge." Snyder v. Massachusetts, 291 U.S. 97, 105-06, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934).

Of course, a defendant is not entitled to be personally present at every proceeding in the case. In confining the right to be present to critical stages, courts assume that the defendant's attorney will represent the defendant's interests in noncritical proceedings. See, e.g., United States v. Vasquez, 732 F.2d 846, 849 (11th Cir. 1984) (no right to be present at bench conference attended by defendant's attorney to discuss cross-examination of defendant); United States v. Williams, 455 F.2d 361, 365 (9th Cir.) (notice of conferences need not be sent to defendant because court assumes attorney represents defendant's interests) (following United States v. Alper, 449 F.2d 1223 (3d Cir. 1971)), cert. denied, 409 U.S. 857, 93 S.Ct. 140, 34 L.Ed.2d 102 (1972); United States v. Jorgenson, 451 F.2d 516, 521 (10th Cir. 1971) (no right to be present at in camera conference on evidence questions when attorney present), cert. denied, 405 U.S. 922, 92 S.Ct. 959, 30 L.Ed.2d 793 (1972).

Due Process thus assures a right of presence unless such presence "`would be useless, or the benefit but a shadow.'" United States v. Christopher, 700 F.2d 1253, 1262 (9th Cir.) (quoting Polizzi v. United States, 550 F.2d 1133, 1138 (9th Cir. 1976)), cert. denied, 461 U.S. 960, 103 S.Ct. 2436, 77 L.Ed.2d 1321 (1983). Even the ablest attorney cannot replace the defendant at certain critical proceedings, at which the defendant's presence can never be "useless." See, e.g., Henderson v. Morgan, 426 U.S. 637, 647, 96 S.Ct. 2253, 2258, 49 L.Ed.2d 108 (1976) (defendant must be apprised of charge before guilty plea may be accepted); Hall v. Wainwright, 733 F.2d 766, 775 (11th Cir. 1984) (defendant may never waive right to be present in capital case), cert. denied, ___ U.S. ___, 105 S.Ct. 2344, 85 L.Ed.2d 858 (1985).

This right includes the right to be present during ex parte communications between a judge and the defense counsel that so vitally affect the trial. Discussions about Palacios' disbarment and its effect on his ability to continue representation in the case surely qualifies as such a vital communication. Most important, we cannot assume that the attorney represents the defendant's interests in such a proceeding, or that the defendant's presence would be "useless." A defendant must have the opportunity to attend such a conference.

The violation of a defendant's right to be present at the proceeding does not necessarily require automatic reversal of a conviction. In many situations, appellate courts may affirm a conviction "if in the particular case the defendant's absence was harmless beyond a reasonable doubt." Miller v. Stagner, 757 F.2d 988, 995 (9th Cir.), modified on other grounds, 768 F.2d 1090 (9th Cir. 1985), cert. denied, ___ U.S. ___, 106 S.Ct. 1271, 89 L.Ed.2d 579 (1986). The harmless error rule does not apply, however, when "societal interest in seeing that the forms of trial are preserved" demands reversal of the conviction. Badger v. Cardwell, 587 F.2d 968, 978 (9th Cir. 1978). For example, courts employ a per se reversal rule when a defendant is absent from the jury selection process, because the defendant has an absolute prerogative to exercise peremptory challenges. See, e.g., United States v. Washington, 705 F.2d 489, 497 (D.C.Cir. 1983).

I believe that the present situation warrants automatic reversal. As in the jury selection cases, Carvajal had an absolute prerogative to dismiss his disbarred attorney. Moreover, cases finding harmless error in right to be present cases do so because the court found that the attorneys adequately represented the defendants' interests. See, e.g., Miller, 757 F.2d at 995; United States v. Stratton, 649 F.2d 1066, 1080 (5th Cir. 1981). Here, not only did Palacios fail to protect Carvajal's rights, but his interests directly conflicted with Carvajal's. I would reverse Carvajal's conviction because his right to be present at the conference between Palacios and the district judge was violated.

The standard that this dissent suggests is neither novel nor cumbersome. It simply recognizes that a client-defendant in a criminal action has the right to be informed that his or her attorney has been disbarred. This right does not require any affirmative action on the part of the court, except the duty to ensure that the client has been notified once the court has been informed of the disbarment and to permit the defendant to attend any conferences on the issue. The decision to proceed with disbarred counsel lies with the client. If the client wishes to obtain other counsel, a continuance or mistrial motion may then be appropriate. I do not suggest what standard should govern the trial court's review of such a motion. But I hasten to add that judicial convenience should be a low priority when the right to counsel has been so thwarted.