The right to (unlicensed) counsel

I recently read this article about a Louisiana public defender’s office that hired a new assistant public defender.  Unfortunately, the new hire wasn’t actually an attorney!  Woops.  Having a law license is, of course, a prerequisite for being a criminal defense lawyer.  In reference to the above story, someone I know rhetorically asked: “Could you just envision the Supreme Court of Wisconsin (SCOW) upholding a defendant’s conviction on appeal even though the defendant’s ‘lawyer’ wasn’t actually a lawyer?”  As the above question implies, if a defendant is represented by a fake lawyer, any conviction in the case should be reversed.  The applicable legal standard is Strickland’s two-part test on the ineffective assistance of counsel (IAC). 

The first prong of the IAC test addresses whether the lawyer’s performance was deficient.  In the fake lawyer scenario, above, the defendant didn’t actually have a lawyer, something that is required by the Sixth Amendment (and probably other laws as well).  Therefore, the performance is, obviously, per se deficient.

The second question in an IAC claim is whether the defendant suffered prejudice from the deficient performance.  In the case of a fake lawyer, however, this prong isn’t (or at least shouldn’t be) applicable.  When a defendant is “represented” by someone he thinks is a lawyer, but actually isn’t, we have one of those rare cases where courts don’t require the defendant to identify specific harm.  As Jeffrey Kirchmeier explained:

Several courts have found per se prejudice in the situation where a criminal defendant’s counsel was not licensed to practice law. In United States v. Novak, the United States Court of Appeals for the Second Circuit applied a per se prejudice standard when a criminal defendant was represented by a person who had obtained admission to the bar through fraudulent means and who was subsequently disbarred. Because counsel had not met the state’s substantive requirements for admission to the New York State Bar, the court reasoned there was no foundation for an assumption that the attorney had the legal skills to be admitted properly to the bar.

Despite this very reasonable rule—i.e., before the defendant can receive the effective assistance of an attorney he first must have an attorney—my answer to the above question was as follows: Yes, I can absolutely imagine SCOW affirming a defendant’s conviction even though he was represented by a fake lawyer.  This is, after all, SCOW—a group of judicial activists that will go to the ends of the earth to benefit the state at the expense of the defendant. 

In fact, not only can I imagine SCOW denying a defendant’s appeal based on “representation” by a fake lawyer, but I could even write SCOWs decision for it.  I’m paraphrasing myself here, but I previously wrote that SCOW’s decision denying such an appeal would read something like this:    

Defendant Smith would have us abandon Strickland’s two-part framework and adopt a per se rule requiring a finding of IAC because his fake lawyer didn’t have a law license.  We decline Smith’s invitation.  Such a rigid rule would require reversal—thus placing excessive burdens on the learned trial judge and the prosecutor—whenever defense counsel failed to maintain a license for any reason, including merely failing to: (a) report CLE credits, (b) pay bar dues on time, or (c) graduate from law school and get admitted to the bar.  Smith’s argument, therefore, is a nonstarter.

We instead turn to the substance of fake counsel’s representation in this case.  Smith has failed to demonstrate the requisite prejudice from fake counsel’s actions; Smith’s IAC claim therefore fails.  Indeed, the Sixth Amendment guarantees the defendant effective counsel, not licensed counsel.  We assume, without deciding, that at the time of the founding, attorneys’ licenses probably did not even exist.  We therefore decline to walk down the dangerous path of judicial activism that Smith proposes.  We will not entertain his wide-ranging, far-reaching arguments which, we suspect, could not have been envisioned by the Founders.  

Literally within two minutes of my above foray into what I thought was satire, I found this On Point blog post sitting in my email inbox.  In a case of truth being as entertaining as satire (and as strange as fiction), SCOW had just issued an actual decision in a case where a defendant was represented by an “attorney” without a license! 

The facts in this new case, State v. Cooper, were a bit different than those of the fake lawyer in Louisiana.  In Cooper, the defendant was trying to withdraw his plea—something that should be fairly easy under the “fair and just” standard.  One of his reasons was that he learned his attorney wasn’t licensed for nearly an entire month in the middle of the “representation.”  Granted, this is less severe than the Louisiana fake lawyer scenario, but in addition to being unlicensed for a stretch of time, the sometimes-but-not-always attorney in Cooper also failed the defendant in several identifiable ways.  SCOW conceded the following:

[T]he Office of Lawyer Regulation [OLR] referee concluded, as a matter of law, that [defense counsel’s] misconduct prevented [defendant Cooper] from adequately understanding and participating in his own defense in violation of SCR 20:1.4(a)(2). After reviewing the referee’s report, we accepted his factual findings as taken from the OLR’s complaint. We also agreed with the referee that those factual findings are sufficient to support a legal conclusion that [defense counsel] engaged in the professional misconduct set forth in the 19 counts contained in the OLR’s complaint.

Slam dunk for the defendant, right?  Even aside from the lawyer’s 19 counts of misconduct that prevented him from adequately understanding what was happening and, therefore, precluded his participation in his own defense, the lawyer wasn’t even licensed to practice law for a one-month span during the case!  Surely, SCOW will let the defendant withdraw his plea to at least pretend it’s important for defense lawyers go to law school, get admitted to the bar, participate in CLEs, and maintain their licenses to practice law.  Wrong.  SCOW wasn’t persuaded by the defendant, or even by a clear, well-reasoned dissenting opinion.  Instead, SCOW wrote this:

Even if we agreed that [the defense lawyer’s] misconduct rose to the level of deficient performance within the meaning of Strickland (a question on which we express no opinion), Mr. Cooper would nonetheless be unable to prove the prejudice element of the Strickland analysis.

SCOW couldn’t even concede what it had previously and explicitly decided: the attorney committed 19 ethical violations and prevented the defendant from understanding the case and participating in his own defense.  Instead, SCOW brilliantly “express[ed] no opinion.”  An opinion would have been too much to muster.

As The Dog’s readers may suspect based on SCOW’s sparkling analysis, its decision isn’t even worth reading.  It is disingenuous and flat-out embarrassing to anyone with a law degree (regardless of license status).  SCOW spends most of its time torturing plain language and drawing irrational distinctions in an attempt to defend itself from the dissenting opinion by Justices Dallet and A.W. Bradley.  In fact, SCOW even ignored the licensure issue entirely—or, at least, put less effort into it than I did when writing my satirical court opinion (above). 

In sum, I can save The Dog’s readers some time.  Here are two takeaways from SCOW’s decision.  First, as I satirically wrote, a defendant is entitled to effective counsel, not licensed counsel.  And second, counsel can still be effective even when the representation, or lack thereof, “prevented [the defendant] from adequately understanding and participating in his own defense.”

The upshot?  The Sixth Amendment right to counsel is dead.