Monday, December 19, 2005

Court of Appeals: Representation by "impostor" posing as attorney subject to showing of prejudice if co-counsel duly admitted

People v Jacobs, 2005 WL 3452323, 2005 NY Slip Op 09574 [available here]

When James Jacobs stood trial under a 10 count indictment for robbery, assault and "related charges", he (quite reasonably) thought that both of the lawyers defending him were duly licensed attorneys. Turns out, one of his attorneys--the one who gave the opening statement, put on the defense witnesses, made the motion for a trial order of dismissal, and lodged various objections during the course of the trial--was not actually a lawyer, but rather a "law school graduate who has passed the bar but [wa]s masquerading as a duly licensed attorney". (People v Jacobs, __ NY3d __ [G.B. SMITH, J., dissenting].) Although the Court of Appeals has previously "held that when 'a defendant in a criminal proceeding has unwittingly 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" (Jacobs, __ NY3d at ___, quoting People v Felder47 NY2d 287, 291 [1979]), Chief Judge Kaye's majority opinion in Jacobs draws a distinction with this prior precedent and affirms Mr. Jacobs' conviction:

A defendant is entitled to the effective assistance of counsel. And because counsel 'can mean nothing less than a licensed attorney at law', a defendant who is represented only by a layperson has been completely deprived of counsel and is entitled to per se reversal of a resulting conviction. But when, as here, a defendant has been at all times represented by an admitted attorney, mere participation of a non-lawyer in the defense does not, without more, mandate reversal.

Rather, because the active participation of a licensed attorney throughout a defendant's trial should generally suffice to ensure that the defendant's rights are protected, a conviction should not be reversed in the absence of a showing of prejudice.

(Jacobs, __ NY3d at __. [citations omitted].)

Judge G.B. Smith dissented. While his dissenting opinion agrees for the most part with the majority's legal guideposts (i.e. that per se reversal is only appropriate in instances of total deprivation of counsel), he argues that the fact that an unlicensed layperson was solely responsible for representing defendant at key stages of the proceeding--including at opening statements, during the defense case, and while arguing for a trial order of dismissal--the deprivation of defendant's right to counsel was complete for those stages. From the dissent:

[A]t a bare minimum, the right to counsel means the right of a defendant to be represented by a licensed attorney at law during all phases of the criminal proceeding. Here, defendant was not afforded such protection during his opening statement and the presentation of his case. [...]

Because this case involves the absolute deprivation of counsel during those portions of the trial handled by an imposter, not representation, related to those portions of the trial conducted by a duly licensed counsel, that may or may not have been effective and meaningful, the Felder rule, that defendant is not required to demonstrate that he was prejudiced in terms of his representation, applies.

(Jacobs, __ NY3d at __ [G.B. SMITH, J., dissenting].)

If the licensed attorney in Jacobs was the supervisor of the unlicensed attorney, I would be comfortable with the majority's opinion, because under those facts one could be reasonably assured that the non-licensed impostor's actions at trial were being monitored (and presumably subject to the pre-approval of) a licensed attorney. But this was not the case in Jacobs--the licensed attorney and the non-licensed imposter were colleagues who split up the trial duties as a matter of efficiency, and no supervisory relationship existed. (Jacobs, __ NY3d at __.) Thus, one of the factual planks of the majority's reasoning--that "the active participation of a licensed attorney throughout a defendant's trial should generally suffice to ensure that the defendant's rights are protected"--does not really support the weight put upon it by the majority. For all we (or the Court) know, the licensed co-counsel was doing the crossword while the imposter was opening; or perhaps the only attorney at the defense table was putting the finishing touches on her closing argument while the imposter was making the motion for a trial order of dismissal.

That said, surely the factual scenario giving rise to the Jacobs decision is a rare one, so the majority's opinion should not have much fallout.

Nicole over at Sui Generis has her own take on Jacobs here. Sui Generis has also been added to the Blawgs list over at the left.