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

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

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.

• 2 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

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).