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I’m Not a Lawyer, But I Play One On TV

According to the NY Court of Appeals, as long as a defendant is represented by at least one admitted attorney, there is no violation of the 6th Amendment right to effective assistance of counsel.  That’s good news for prosecutors.

In People v. Jacobs, decided on December 15, 2005, the defendant appealed from his conviction of Grand Larceny in the Fourth Degree.  Two Bronx assistant Public Defenders had been assigned to his case from the outset and both participated during his bench trial.  It was later learned that one of his attorneys was not licensed to practice law, although she’d attended law school and had passed both the bar exam and the MPRE.  The admitted attorney was not the unlicensed attorney’s supervisor.

The Court described that the unlicensed attorney’s participation in Jacob’s case as minimal in that she had: 1) delivered the opening statement to the jury, 2) conducted a direct exam of the sole defense witness, 3) objected a number of times at trial, and 4) moved to dismiss the People’s case.  The dissent also noted that she’d participated in opposing a motion for recusal of the trial judge.

In People v. Felder, 47 N.Y.2d 287, 291 (1979),the Court had previously held that when “a defendant in a criminal proceeding has unwittingly been represented by a layman masquerading as an attorney but in fact not licensed to practice law, his conviction must be set aside without regard to whether he was individually prejudiced by such representation.” In People v. Jacobs, the Court declined to extend that rule to every scenario, including Mr. Jacob’s situation. 

Accordingly, the Court concluded that because the admitted attorney was present and “available to ensure that defendant received the effective assistance of counsel” and because the defendant failed to point out any errors in representation committed by the unlicensed attorney, that his 6th Amendment right to effective assistance of counsel had not been violated.

I find this holding to be problematic. The defendant was represented at various stages of his case by the unlicensed attorney alone. And, her representation was substantial, in my opinion. That the admitted attorney was present is of no matter.  She had no knowledge that her co-counsel was unlicensed, and, therefore, had no reason to believe that extra-vigilant scrutiny of the actions of her unlicensed co-counsel was warranted. 

Furthermore, the Court should not have even considered the issue of whether any errors had actually occurred.  The thrust of its prior holding in Fisher was that representation by unlicensed counsel is all that is needed and the lack of prejudice from said representation is irrelevant.

Licensure of attorneys is required for a reason: to protect clients and ensure that they are represented by competent counsel.   Mr. Jacobs was represented by unlicensed counsel at numerous stages during his case.  At the very least, he should have been granted a new trial.

Comments

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wdegraw

No doubt. Bad opinion. Turner is good law for all the reasons you pointed out. I didn't read Jacobs, but did the opinion point out the very stringent and limited rules for when non-admitted persons CAN represent defendants in criminal proceedings. It is limited to law students in duly supervised and registered clinical programs. Even then, only in Criminal Court, handling misdemeanors. Why open the door wider? Like you wrote, to now apply an error standard ub this realm sets a dangerous and arbitrary precedent.

I don't think this opinion makes prosecutors happy. No prosecutor wants to risk a conviction because the defense attorney wasn't admitted. Plus, most prosecutors will tell you - they like trying cases against the best defense attorneys. For lots of reasons, but mostly because its the most fun. That may sound flip, but take it in the proper context.

Finally, a programming note. Nicole, sometimes when I try to comment on your posts, I get bounced directly to a site called blogarama.com. It only happens on your site, and usually only when I am using the Mac. Don't know why, but you may want to troubleshoot that.

slickdpdx

I disagree with you both. Whether an 'attorney' was licensed in the relevant state (or at all) is certainly an especially pertinent consideration in determing whether a defendant had effective assistance of counsel, but it doesn't seem like it should be the only consideration. That would be elevating form over substance and protecting the interests of the wrong folks (lawyers, not their clients.) The constitution requires effective assistance for the defendant, it's not a bar enforcement mechanism.

Nicole Black

Slickdpdx--while the Federal Constitution may only require a certain level of effective assistance of counsel, states can provide for additional protections, and NY did so until this opinion. The standard was set at a higher level in Felder, and in my opinion, the Court departed from its precedent in this case.

Richard Ames

"Licensure of attorneys is required for a reason: to protect clients and ensure that they are represented by competent counsel."

Wow! I didn't think anyone still believed the official version anymore. Where have you been? Licensure of attorneys is required to protect the economic interests of attorneys, nothing else. I'm an attorney myself and know of more than a few attorneys with licenses who are neither qualified nor competent. I have absolutely no doubt that someone without a license might be able to learn enough law and have enough skill to more than adequautely represent a client.

Nicole Black

Richard--The reason I gave is the purported rationale for licensure of attorneys, although requiring a license certainly serves the *purpose* of protecting the economic interests of attorneys. I won't argue with that.

And, I agree that there absolutely exist incompetent licensed attorneys, and vice versa. But, up until the Court's decision in Jacobs, that was irrelevant and as long as the defendant was unwittingly represented by an unlicensed attorney, it constituted a per se violation of the right to effective assistance of counsel.

The Court seems to have backpeddled subtantially from that holding in this case.

wdegraw

I enjoy few things more than disagreeing with Nicole, but the courts should not put themselves in the position of having to decide whether a defendant got adequate representation from an attorney who happened to be unlicensed. True, these scenarios are rare, but that would make it all the more difficult to come up with a bright line standard. Also, what effect should the skill of the prosecutor have in these situations? For instance, if the unlicensed attorney tried a case against a new prosecutor, would that matter as much as if he had tried a case against a skilled and seasoned prosecutor?

My sense is that the unlicensed mouthpiece in Jacobs did a damn good job - despite the ultimate results of the case - but so what. Plus, if I have to pay hundreds of dollars in bar fees every year (for various jurisdictions) so should everyone else.

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