Was defendant’s attorney in the previous criminal case actually licensed to practice law at the time of the previous conviction?  If not, in some circumstances this will give rise to cause to vacate the conviction.

 

Defense counsel is not per se ineffective if s/he has been suspended from the practice of law at the time of the representation.[17]  Per se ineffectiveness is limited to situations in which (1) the attorney was connected with the commission of the crime with which the defendant was charged, or (2) the attorney had never met the substantive requirements for the practice of law.  In cases in which the attorney was suspended from practice, there was some possibility of a conflict of interest, since the suspended attorney might fear discovery, but this conflict was “much less severe . . . than that of an attorney who is connected with the crime or who has never been licensed to practice law in any jurisdiction.”[18]

 

            The defendant must show prejudice from representation by non-counsel.[19]

 

Under California law, however, if the reason that the “attorney” was not licensed was because counsel had resigned from the Bar with charges of moral turpitude pending against him or her at that time, the conviction must be vacated based on the denial of counsel.[20]  Likewise, the defendant has been denied the right to be represented by counsel where the “attorney” had “never been admitted to the practice of law or . . . fraudulently procured admission, or . . . resigned from the State Bar . . .” before representing defendant.[21]  On the other hand, the mere fact that defendant’s attorney was “involuntarily” placed on inactive status for the failure to comply with continuing education requirements “does not, in itself, amount to the denial of counsel.”[22]  Similarly, the defendant has not been denied his or her constitutional rights to counsel where trial counsel was suspended from the practice of law for the first three days of a six-day trial because of commingling of funds.[23]

 

[17] Hurel-Guerrero v. United States, 186 F.3d 275 (2d Cir. 1999); Bellamy v. Cogdell, 974 F.2d 302 (2d Cir. 1992) (en banc); Solina v. United States, 709 F.2d 160 (2d Cir. 1983).

[18] United States v. Maria-Martinez, 143 F.2d 914, 918 (5th Cir. 1998) (declining to apply per se rule where attorney was barred from practice in the Fifth Circuit but “was a member of the Texas bar throughout the proceedings”).

[19] United States v. Ross, 338 F.3d 1054 (9th Cir. August 11, 2003) (defendant required to show prejudice even when attorney was suspended before trial began and had never been admitted to federal practice; as long as lawyer had been admitted at one time, bar status at trial not dispositive).

[20] In re Johnson, 1 Cal.4th 689, 702 (1992).

[21] See People v. Ngo, 14 Cal.4th 30, 32 (1996); In re Johnson, 1 Cal.4th 689, 701-702 (1992).

[22] People v. Ngo, 14 Cal.4th 30, 38 (1996).

[23] People v. Barillas, 45 Cal.App.4th 1233, 1239-1241 (1996).

Ninth Circuit

POST CON RELIEF - GROUNDS - COUNSEL - COUNSEL OF CHOICE
United States v. Ensign, 491 F.3d 1109 (9th Cir. July 5, 2007) (district court's refusal to allow attorney to represent defendant pro hac vice did not violate constitutional right to counsel of choice).