Attorney Discipline

Practice of law while suspended

People v. Vigil (2008) 169 Cal.App.8

In re Johnson (1992) 1 Cal.4th 689. “representation by an attorney who has submitted a resignation with disciplinary proceedings pending, and has as a result been placed on inactive status, denies a criminal defendant the counsel guaranteed by article I, section 15 of the California Constitution”;

People v. Ngo (1996) 14 Cal.4.th 30

People v. Anderson (2015) 234 Cal.App.4th 1411

People v. Shea (July 31, 2009, No. A121745)

People v. Medler (1986) 177 Cal.App.3d 927

Prosecutors

In People v. Ah Wee (1874) 48 Cal. 236, the trial court, over objection, permitted three prosecutors to argue the case to the jury. Defendant had only two counsel, each of whom addressed the jury. The California Supreme Court rejected the argument that the trial court erred by allowing more than two arguments on behalf of the People. (Id. at p. 238.) It stated: “As we construe [§ 1095], its object was to give both the prosecution and the defense, in a capital case, the right to have the case presented to the jury by at least two counsel; and to distinguish the case in this respect from the inferior grades of crime in which the argument may, in the discretion of the Court, be restricted to one counsel on each side. But it was not intended to limit the power of the Court in any criminal case to allow as many counsel as in its discretion should seem proper, to address the jury, whether upon the part of the people or of the defendant.” (People v. Ah Wee, supra, 48 Cal. at pp. 238–239.) Defendants offer no reason to depart from this rationale merely because we are concerned with all phases of trial, not just final argument. Forsythe alleges that while one prosecutor was questioning the witness, the other was preparing, researching, and comparing notes on testimony, rendering the proceedings “about as fair as a tag team match with one side limited to one wrestler.” However, he offers no proof in the record of this, nor does any defendant establish that prejudice resulted. People v. Pitts (1990) 223 Cal.App.3d 606, 818 [273 Cal.Rptr. 757, 872]

On a criminal trial the court may, in its discretion, allow the prosecuting attorney additional counsel. (People v. Blackwell (1864) 27 Cal. 65)

Finally, we note that it has long been the law in California that the trial court may permit private counsel to assist the district attorney in a given prosecution. Thus, in People v. Blackwell (1864) 27 Cal. 65, 1864 WL 715, our high court said: “It appears from the record that the court, by the request of the district attorney, permitted other counsel to assist him at trial. Before trial commenced, however, the counsel of the appellant moved the court to vacate the order. The motion was overruled and the defendant excepted. People v. Dehle (2008) 166 Cal.App.4th 1380, 1389

United States v. Providence Journal Co. (1988) 485 U.S. 693

People v. Carlucci (1979) 23 Cal.3d 249

Macon v. Lynch (C.D. Cal, Sept. 8, 2022 NO. 21-cv-06857-JAK-KES) 2022 WL 16541872

And so it is unsurprising that many courts refuse to stamp “invalid” an indictment signed by a prosecutor with bar-license problems if other evidence shows the government backed the prosecution — with some cases explicitly saying that in such a situation, the complaining party cannot prove prejudice. Kelley v. United States (1st Cir. 2021) 989 F.3d 67, 70

Federal courts addressing the issue have found that prosecution by an unlicensed attorney does not violate a defendant's due process rights. See Munoz v. Keane, 777 F.Supp. 282, 283–84 (S.D.N.Y.1991), aff'd sub. nom., Linares v. Senkowski, 964 F.2d 1295 (2d Cir.1992); see also Rogers v. United States, 2010 WL 3023303, at *8 (M.D.N.C. July 27, 2010); Hamilton v. Roehrich, 628 F.Supp.2d 1033, 1054 (D.Minn.2009). The Southern District of New York reasoned that “[w]hile it is obviously preferable that a prosecutor be licensed to practice law in the jurisdiction in which he or she practices, the fact that a prosecutor is not admitted does not necessarily undermine the fairness of the trial process.” Munoz, 777 F.Supp. at 285. Noting that the Second Circuit had previously held that a criminal defendant must be represented by licensed counsel, the district court explained that “[w]hile a prosecutor is obligated to seek justice, not only a conviction, a criminal defendant does not rely on a prosecutor to protect his rights” and, “[a]s a result, the fact that a prosecutor may be unlicensed to practice law has far fewer repercussions for the defendant than if his own counsel is not admitted.” Id. at 286. The court rejected the defendants' argument that a per se due process violation occurred when a prosecutor was unlicensed because, “[w]here, as here, defense counsel and an impartial trial judge are capable of monitoring the prosecutor's conduct in order to ensure that no constitutional violations occur, it would be inappropriate to conclude that a due process violation automatically results from the prosecutor's unlicensed status.” Id. The Court declines to recognize a constitutional right to be prosecuted by a licensed attorney. Accordingly, the Court finds that Defendants' due process rights were not violated. U.S. v. Garcia-Andrade (S.D. Cal., Aug. 6, 2013, No. 13-CR-993-IEG) 2013 WL 4027859, at *10

Woods v. United States (M.D. North Carolina Nov. 16, 2010, Nos. 1:09CV917, 1:06CR189–2) 2010 WL 4746138

Although the practice of law by an unlicensed or improperly licensed prosecutor is an unusual situation, it is not unique or unprecedented. In fact, it has occurred on several occasions in courts across the country. Most courts facing the dilemma have ruled that a defendant does not have a constitutional right to a properly licensed prosecutor, that the prosecution of a case by an unlicensed or improperly licensed prosecutor does not automatically violate a defendant's rights, and/or that a defendant must show some sort of prejudice in order to challenge his conviction. Hamilton v. Roehrich, 628 F.Supp.2d 1033, 1050–54 (D.Minn.2009); Munoz v. Keane, 777 F.Supp. 282, 284–87 (S.D.N.Y.1991), aff'd sub nom. Linares v. Senkowski, 964 F.2d 1295 (2d Cir.1992); People v. Carter, 77 N.Y.2d 95, 106–07, 566 N.E.2d 119, 123–24 (1990); Ali v. Minnesota, Civil No. 09–1389, 2010 WL 145280, at *5 (D.Minn. Jan. 8, 2010). At least one court has held that a prosecution pursued by a prosecutor without a proper license is still valid because, although not qualified for her job as a prosecutor, she was nevertheless given the job by the government. This made her a “de facto officer” whose acts on behalf of the government were valid. Parker v. United States, Nos. 4:98CR00236GH, 4:03CV00058GH, 2006 WL 2597770, at *13–15 (E.D.Ark. Sept. 8, 2006); United States v. Deaton, Nos. 4:99CR87GH, 4:04CV2252GH, 2005 WL 1922877, at *3–5 (E.D.Ark. Aug. 9, 2005). There is a decision from Illinois in which a state court held that prosecutions by an unlicensed prosecutor are per se invalid. People v. Dunson, 316 Ill.App.3d 760, 763–70, 737 N.E.2d 699, 702–06 (2000). Nevertheless, the court in Dunson relied solely on state, not federal, law and declined to decide whether or not a due process violation had occurred. No case of which the court is aware has held that there is a federal constitutional right to a properly licensed prosecutor or that prosecution by an unlicensed prosecutor invalidates a conviction or plea agreement based on any federal right in the absence of a showing of prejudice.

This court agrees with the cases concluding that there is no constitutional right to a properly licensed prosecutor and that a defendant or petitioner must show prejudice in order to raise a claim based on a prosecutor's licensing deficiencies.

Here, we agree with the Court, in Munoz v. Keane, supra, that Hamilton does not have a constitutional right to be prosecuted by a licensed attorney. Hamilton has not offered any legal support for such a constitutional right, nor has our independent research disclosed any.11 In addition, even if Hamilton had a constitutional right to be prosecuted by an licensed attorney, we conclude that any alleged error was harmless, because Hamilton has not demonstrated any prejudice that arose from Graham's conduct. See, Munoz v. Keane, supra at 286–87; State v. Ali, supra at 108–09. Hamilton v. Roehrich (D. Minn. 2009) 628 F.Supp.2d 1033, 1054

Contrary to petitioners' claims, a prosecution conducted by an unlicensed attorney does not “violate[ ] a defendant's right to fair procedure [or] deprive[ ] him of constitutional safeguards guaranteed under the Due Process Clause.” (Linares Petition at 13). The due process clause requires a fair trial, not a perfect one. Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986). While it is obviously preferable that a prosecutor be licensed to practice law in the jurisdiction in which he or she practices, the fact that a prosecutor is not admitted does not necessarily undermine the fairness of the trial process.

Munoz v. Keane (S.D.N.Y. 1991) 777 F.Supp. 282, 285, aff'd sub nom. Linares v. Senkowski (2d Cir. 1992) 964 F.2d 1295

We simply cannot find that the federal constitutional right asserted is dictated by precedent. Indeed, appellants do not cite even one federal case that closely resembles ours. Linares v. Senkowski (2d Cir. 1992) 964 F.2d 1295, 1297

Whatever may be said about Penofsky's conduct, the fact remains that his unlicensed status did not, without more, undermine the underlying prosecutorial jurisdiction possessed by the Special Narcotics Prosecutor or affect his permission to be present before the Grand Jury as an Assistant District Attorney (see, CPL 1.20[31], [32]; 190.25[3][a] ). In holding that the Assistant District Attorney's nonlawyer status did not result in a loss of jurisdiction so as to require a dismissal under CPL 210.35(5) (see, People v. Dunbar, 53 N.Y.2d 868, 440 N.Y.S.2d 613, 423 N.E.2d 36, supra; People v. Di Falco, 44 N.Y.2d 482, 406 N.Y.S.2d 279, 377 N.E.2d 732, supra), we note that the purpose of the provision upon which defendant relies (CPL 190.25[3][a] ) is to ensure the secrecy of the Grand Jury proceedings (see, Bellacosa, Practice Commentary, McKinney's Cons. Laws of N.Y., Book 11A, CPL 190.25, at 215–216). The question of whether a duly sworn Assistant District Attorney has been admitted to the Bar has no bearing on whether his presence compromises the secrecy of the proceedings. Moreover, neither the Constitution nor any statute requires that a District Attorney or an Assistant District Attorney be an admitted lawyer People v. Carter (1990) 77 N.Y.2d 95, 105 [566 N.E.2d 119, 123]

Defendants do not have a constitutional right to be tried by a licensed attorney. Hamilton v. Roehrich, 628 F.Supp.2d 1033 (D.Minn.2009) (Magnuson, J.); see also Munoz v. Keane, 777 F.Supp. 282 (S.D.N.Y.1991). The court in Hamilton held that while it is “obviously preferable” that a prosecutor be licensed to practice law in the jurisdiction in which he or she practices, the fact that a prosecutor is not licensed does not necessarily undermine the fairness of the trial. Ali v. Minnesota (D. Minn., Jan. 8, 2010, No. CIV 09-1389 JMR FLN) 2010 WL 145280, at *5

For several reasons, we reject Ali's request for the application of a per se rule. We find the reasoning of the New York state and federal courts to be persuasive, and we conclude that to be entitled to a new trial, Ali must show prejudice resulting from the fact that he was prosecuted by an attorney whose license to practice law was on restricted status. First, requiring a showing of prejudice is consistent with our supreme court's decision in Abbott. Although the issue here concerns a prosecutor whose license to practice law was on restricted status, rather than a defect in a prosecutor's appointment, as in Abbott, we conclude that there are substantial similarities between the two issues, and, therefore, requiring a showing of prejudice to warrant a reversal and a new trial is appropriate. State v. Ali (Minn. Ct. App. 2008) 752 N.W.2d 98, 108

Deaton is not entitled to relief on this ground. The Arkansas courts have found that prosecutors who did not have actual authority to prosecute a defendant were acting as a “de facto official” and the defendant could not collaterally attack the prosecutor's lack of authority to prosecute. See Bell v. State, 334 Ark. 285, 299 (1998) (assistant attorney general appointed as special deputy prosecutor who did not meet residency requirement was de facto official); State v. Roberts, 255 Ark. 183 (1973)., (deputy prosecutor not reappointed was de facto official); Chronister v. State, 55 Ark.App. 93 (1996) (city attorney who did not have authority to prosecute state misdemeanor prosecution was de facto official) U.S. v. Deaton (E.D. Ark., Aug. 9, 2005, No. 4:04CV2252GH) 2005 WL 1922877, at *3

110 CRIMINAL LAW > XXXI. COUNSEL, k1690-k2210

(A) COUNSEL FOR PROSECUTION, k1690-k1709 (174)

Prosecutor immunity

Prosecutors are protected by immunity from claims that rely upon decisions made and actions taken by the attorneys within the scope of their roles as advocates. Kalina v. Fletcher, 522 U.S. 118, 125-26, 130-31, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997); Imbler v. Pachtman, 424 U.S. 409, 430-31, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976).