"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Monday, May 16, 2016

When a criminal conviction is at stake in California, Texas and Michigan, representation by a suspended attorney satisfies the 6th Amendment right to counsel requirement

Lawyers have to pay hundreds of dollars in bar dues in states where "organized bars" are mandatory and directly to the state where organized bars are not mandatory, where a portion of that money is used on attorney discipline.

Attorney rules required - and attorney discipline is imposed - if attorneys do not comply with Continued Legal Education (CLE) requirements.

I wrote on this blog about corruption in certification of CLE programs in New York.

I also wrote on this blog about CLEs where attorneys, in exchange for a $359 fee, learn how to brown-nose judges better, by learning about particular whims of particular judges.

Recently, a fellow legal blogger unearthed and commented on a 1996 case from California where an attorney suspended from practice in the State of California in the middle of representation in a criminal case for failure to comply with minimum CLE requirements, continued to represent the defendant, and represented the defendant at the sentencing.

And, while reviewing that case, I found two more cases, in Texas and Michigan, cases which, surprisingly, are not cited much (or, in fact, at all), in legal treatises about attorney regulation - while they clearly should be, because they undermined and destroyed the validity of the entire claim of consumer protection as a justification of attorney licensing and attorney monopoly in court representation.

The intermediate appellate court in California reversed the conviction as a denial of constitutional right to counsel (a new counsel had to be appointed at the time the defense counsel was suspended).

The Supreme Court of the State of California reversed, saying, among other things:

"We have noted that "admission of an attorney to the bar establishes that the State deems him competent to undertake the practice of law before all our courts, in all types of actions." (Smith v. Superior Court (1968) 68 Cal.2d 547, 559 [68 Cal.Rptr. 1, 440 P.2d 65].) The reasoning of the Court of Appeal in this case, however, would compel the opposite conclusion if, hypothetically, the bar, following provision of notice of noncompliance and [14 Cal.4th 37] after lapse of the 60-day grace period, were to enroll an attorney on inactive status for failure to submit the required proof of compliance. We think it illogical to conclude that a California attorney, presumptively competent on day one, becomes incompetent on day sixty-one merely by virtue of MCLE noncompliance."

The court proceeded discussing that the presumption of competence of an attorney should not be based on such a flimsy premise as providing or not providing records of attendance of CLE courses.

"Moreover, if an attorney's involuntary enrollment on inactive status for noncompliance with MCLE requirements were indeed deemed the equivalent of a finding of incompetence, as the Court of Appeal apparently reasoned, it would be anomalous to permit the attorney's administrative reinstatement simply on submission of proof of compliance consisting of little more than a collection of attendance records. Yet the regulations evidently contemplate such a procedure. (See MCLE Rules, rules 12.2 [member's recordkeeping requirement], 15.1, 15.2.)"

The Supreme Court of the State of California also noted the exemption of attorneys working for the government from CLE requirements:

"In addition, various classes of attorneys, notably employees of the state, are statutorily exempt from compliance with MCLE requirements."

So, attorneys for the government in the State of California are presumed competent whether they take CLEs or not, while other attorneys are presumed incompetent if they do not take CLEs - therefore, attorney competence in California is the function of where you work.  You work for the government?  You are presumed competent.

The Supreme Court of the State of California - the regulator of the legal profession in the state - claimed in People v NGO this:

"If MCLE compliance were truly a sine qua non of competence, surely the Legislature would not have exposed the state to incompetent representation by its own in-house counsel."

Moreover, the California Supreme Court references a case from the Texas Court of Appeals, where the court came to a similar conclusion: representation by counsel suspended for non-compliance with CLE requirements is not a denial of right to counsel on 6th Amendment grounds.

In the Texas case in 1996, 

"[a] jury found appellant, Vance Alan Henson, guilty of possession of more than 400 grams of flunitrazepam, a controlled substance, and the trial court assessed punishment at fifty years in the Institutional Division of the Texas Department of Criminal Justice and a $25,000 fine. Appellant challenges the conviction by six points of error."

Ok, so a criminal defendant in Texas, a consumer of legal services, challenged on appeal his conviction for possession of a controlled substance and sentence of incarceration for 50 YEARS for possession of 400 grams (less than a pound) of a controlled substance, for, among other points, these reasons:

"By his third, fourth, and fifth points of error, appellant complains that his trial counsel was ineffective. Appellant first contends that trial counsel was ineffective because, during the trial, counsel was suspended from the active rolls of the State Bar of Texas for non-compliance with the Minimum Continuing Legal Education (MCLE) requirements."

In other words, the criminal defendant claimed that he was not represented at trial by a properly LICENSED attorney.

The Texas court engaged in this profuse legal analysis of the issue (I omit internal citations, they are available here):

"The Sixth Amendment requires that an accused have both counsel and reasonably effective assistance of counsel. ... 

Representation of counsel under the Sixth Amendment means at the very least, "representation by a licensed practitioner." 

When defense counsel is "not authorized to practice law in any state, and the lack of such authorization stemmed from failure to seek it or from its denial for a reason going to legal ability, such as failure to pass a bar examination, or want of moral character," the Sixth Amendment right to counsel will not be met.

Moreover, when there is an actual or per se denial of representation of counsel, a defendant "is entitled to relief without proving that he was prejudiced by the deprivation.

To receive a reversal because of a violation of the Sixth Amendment right to counsel, appellant must demonstrate that trial counsel committed actual errors or omissions which prejudiced the defense."

So, the State of Texas, same as the State of California, calls a SUSPENDED attorney "a trial counsel" (as if the attorney is fully licensed) - in order to preserve a criminal conviction, even in a death penalty case, see the California Supreme Court citing the Texas case of a criminal conviction with a death penalty where the criminal defendant was represented by a suspended attorney:

"To receive a reversal because of a violation of the Sixth Amendment right to counsel, appellant must demonstrate that trial counsel committed actual errors or omissions which prejudiced the defense. Parrish, 840 S.W.2d at 66; see Hill, 393 S.W.2d at 904 (overruling Martinez v. State, 167 Tex.Crim. 97, 318 S.W.2d 66 (1958), where death penalty was reversed when trial counsel was suspended for failing to pay State Bar dues although no complaint had been asserted about counsel's incompetence).

Yet, while the California and the Texas case claimed that the suspension of attorneys for non-compliance with CLE was simply a "technicality" and does not affect the attorneys "legal ability" or "moral character" (the question is then - why consumers of legal services are deprived of their services, especially where in all of those cases we deal with suspensions of criminal defense attorneys), Michigan, in a case referenced by the California court, went further than that.

In People v Pubrat, a case decided by Michigan Supreme Court in June of 1996, with a "precedential" status, the criminal defendant was contesting "the validity of a nolo contendere plea and the resulting sentencing that were conducted while the defendant's attorney was suspended from the practice of law".

The plea was "to attempted larceny from a building and carrying a concealed weapon".

If in California and Texas the court presented the suspension as not addressing "legal ability" or "moral character",  the suspension in Michigan was definitely addressing moral character of the attorney, because it was based on a criminal conviction of the attorney, and the suspension of the attorney was "disciplinary":

"The Court of Appeals [in Michigan - T.N.] reversed the defendant's conviction, reasoning that a disciplinary suspension reflects a lack of either competency or ethics. The Court of Appeals concluded that because of the suspension the defendant was represented by a person who was not an attorney, his right to counsel was violated, and that violation can never be harmless error. Accordingly, the Court of Appeals set aside the defendant's conviction."

After paying lip service to constitutional precedents that right to counsel is fundamental in criminal proceedings, the Michigan Supreme Court reversed the Court of Appeals and reinstated the conviction obtained while the criminal defendant was represented by a counsel suspended through a disciplinary suspension.

Michigan Supreme Court rejected defendant's claim that he was not represented by an "attorney", claiming that a suspended attorney is nevertheless an "attorney" until he or she is disbarred, calling the defendant's argument that representation by a suspended attorney is a denial of defendant's right to counsel under the 6th Amendment "syllogistic":

"The defendant's argument is mainly syllogistic: the defendant has the right to an attorney; a suspended attorney is not an attorney; therefore, the right was violated. However, the syllogism fails because its second premise is inaccurate. A suspended attorney is an attorney who has been suspended from the practice of law, but is still an attorney.[1] A person who becomes an attorney remains an attorney until formally disbarred or otherwise permanently separated from the bar. A suspension does not alter the formal status as an attorney."

Moreover,  the Michigan Supreme Court pointed out that "[t]his is not a case in which a lay person has masqueraded as an attorney".  Apparently, to the Michigan Supreme Court practicing law without a license by an attorney whose license was suspended for disciplinary reasons differed from the situation where a person practicing law without a license was never admitted to the bar:

"Although we do not address the question here, it is possible that we would reach a different result if the defendant's counsel had never been admitted to the bar."

Then, the court advances into its own "syllogistic" argument disagreeing with courts that automatically reverse criminal convictions where the representing attorney is suspended or disbarred at the time of representation (New York is one of them):

"A rule of reversal per se has been adopted by other jurisdictions that have considered that question. Those courts have declined to reach the question whether the person pretending to be an attorney actually provided adequate representation. The reversal is based on the fact that the person technically was not an attorney at all.[2] However, the conclusion that a person was not an attorney for right-to-counsel purposes is based on the fact that the person never became an attorney, not on the basis of a suspension. Thus, the reasoning of these cases does not support the adoption of a rule of reversal per se on the grounds that a suspended attorney is not an attorney. A suspension is irrelevant to that inquiry."

So, while attorney licensing and attorney monopoly for court representation is declared to exist because of PRESUMPTIVE competence of a licensed attorney to provide an effective representation in court, apparently, when criminal convictions are at stake, Michigan goes further and analyzes whether an individual who was not a licensed attorney, "actually provided adequate representation".

Moreover, the Michigan Supreme Court held that:

"The right to counsel is thus substantive, focusing on the actual assistance received, rather than mere form. We decline to hold that representation by a suspended attorney alone creates a reasonable probability of ineffective assistance."

Yet, the law of the State of Michigan at the time was clear - a suspended attorney could not practice law, it was a crime for him to do so.

And, the law was clear that the defendant had a right to "counsel", meaning, under Michigan State Law, a licensed attorney - where the State of Michigan had an OBLIGATION to provide defendant with an assigned LICENSED attorney if the defendant could not afford one.

So, the Michigan State court was absolving the government of its obligation to PROVIDE proper counsel to criminal defendants, not only supporting criminal convictions.

And, by this case, the Michigan State Supreme Court, the regulator of the legal profession in the State of Michigan, threw all declarations that attorney licensing exist to protect consumers, down the drain - here the consumer of legal services claimed lack of protection because of lack of licensing, and lost.

Yet, if top courts in three states could disregard clear statutory law made in order, at least allegedly, to protect consumers of legal services, when the challenges were brought by such consumers, any potential consumer of legal services, in choosing a court representative, can apparently do that, too - BEFORE going to court, and ask whether a certain unlicensed individual is able to provide an effective representation.

The Michigan Supreme Court also engaged in very interesting analysis of administrative and disciplinary suspensions, coming to the conclusion that some suspensions of licenses are based on "purely personal reasons" that do not affect ability of suspended attorney to provide "effective representation of counsel" to clients.

Since attorney licensing exists to protect consumers of legal services from attorneys who cannot provide effective representation of counsel, then, attorneys in Michigan, after this ruling, can practice, risking a criminal conviction for unauthorized practice of law, and claiming that, because of People v Pubrat, Michigan Supreme Court actually annulled the reasons for attorney licensing in the State of Michigan, and suspension for disciplinary or administrative reasons is not the end of story for the attorney, does not preclude the attorney from providing effective assistance of counsel, and thus should not preclude the attorney from practicing at all.

Even though attorney disciplinary proceedings are claimed to be "civil" and "remedial" in nature, seeking to "protect the public" (in order to deny the disciplined attorney a heightened procedural protection that would be required in punitive proceedings), the Michigan Supreme Court, in order to uphold a criminal conviction, undermined that claim and indicated this:

"The suspension of an attorney reflects a decision that the attorney is not permitted to practice law during the period of the suspension, rather than a statement that the attorney is not competent to practice law. There is no necessary correlation between disciplinary action and an attorney's ability to practice law, and we decline to create such a connection as a matter of law."


Isn't it clearly punitive? We do not allow the attorney to practice law, even though the attorney may be competent to practice?  And provide valuable services to consumers of legal services, especially in the field of criminal defense, where the "justice gap" is felt the most in this country?

It is notable that there is a very strong one-judge dissent in the Michigan case:

The dissenting judge mentioned that the defense counsel "suspended from the practice of law because of his plea of guilty of the high misdemeanor of attempted conspiracy to manufacture, deliver, or possess marijuana with the intent to deliver or possess marijuana".

The dissenting judge reiterated the principles of effective representation in criminal cases:

"The United States Supreme Court recognizes that representation of criminal defendants consists of basic duties including, but not limited to, a duty of loyalty, a duty to avoid conflicts of interest, a duty to advocate, and a duty to possess the skill and knowledge necessary to "render the trial a reliable adversarial testing process." Id. at 688, 104 S.Ct. at 2065. Effectiveness of representation determinations are made in light of these duties and are guided by the prevailing norms of professional practice. Id. Courts universally acknowledge "that the constitutional guarantee of the right to effective assistance of counsel deserves the utmost protection".

The dissenting judge pointed out exactly why attorney licensing and accompanying attorney discipline are declared to be necessary:

"Disciplinary procedures exist to protect the public and ensure that only attorneys who continue to meet the high standards required by the state bar will practice law", and "[t]he suspension of an attorney evidences the state's determination that the attorney is unfit to represent either the public or the legal profession. MCR 9.105."

The dissenting judge further stated that the majority opinion was dictated not by motivations that were expressed in that opinion, but by considerations of judicial efficiency.  In other words, the dissenting judge accused the court of lying and putting false reasons into the majority decision in order "not to burden the courts" with necessity to check out licenses of attorneys - which takes 2 minutes total on the Internet, or a requirement for attorneys to carry attorney cards with them at all times and present them at court hearings, and attach copies to their pleadings.

"The majority appears to say that even though this attorney is deemed unfit to practice and is suspended, he may continue to represent this defendant. The position articulated by the majority does not make good legal sense. The majority's opinion appears, at least in part, to be based on its fear of burdening the courts with the duty of "ascertaining that each attorney who appears before a tribunal has a valid, current license...." Op. at 600. The right to counsel is critical and should not be subordinated to judicial efficiency."

It is interesting to see that a dissenting judge of the top state court implicitly recognizes that courts make opinions in important cases, on fundamental constitutional issues, based on self-serving consideration of their own convenience other than the reasons articulated in judicial opinions.

The dissenting judge logically concluded that:

"If the state believes an attorney is unfit to practice law, then I believe that a defendant represented by a suspended attorney is automatically entitled to a review of the effectiveness of that attorney's representation."

The dissenting judge actually lashed out at the majority of his colleagues by saying:

"In the instant case, [the defense counsel's] suspension arising out of a drug conviction, coupled with the continued representation of the defendant in violation of the rules of suspension, is enough to raise a serious question about whether defendant was denied effective counsel. 

A contrary holding by this Court mocks the notion of a constitutionally guaranteed right to counsel and weakens the significance of the licensing requirements of the legal profession."

"Weakens the significance" is the understatement of the century.  The majority opinion DESTROYED the claim that attorney licensing and attorney monopoly ensures consumer protection in court representation.

After People v Pubrat, there is no legal grounds in Michigan (and in states following this decision) to assert that:

  1. attorney licensing, and attorney monopoly on court representation, exists for protection of consumers of legal services; or
  2. that attorney disciplinary process is "civil" and "remedial" (instead of punitive), in order to deny attorneys higher procedural protections in such disciplinary proceedings.

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