Summary
holding that in ineffective assistance of counsel context, "the failure of an attorney to remit his state bar dues is strong evidence that such attorney is no longer sufficiently interested in the practice of law to adequately defend his client's interests"
Summary of this case from In re LewisOpinion
Docket No. 78-175.
Decided March 6, 1979. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Robert M. Morgan, Assistant Prosecuting Attorney, for the people.
Hemming Barrese, for defendant on appeal.
Before: D.E. HOLBROOK, JR., P.J., and D.E. HOLBROOK and CYNAR, JJ.
Defendant was found guilty of armed robbery, contrary to MCL 750.529; MSA 28.797, in a bench trial held in Detroit Recorder's Court. The complaint on which defendant was arraigned alleged that, armed with a knife, the defendant robbed a pizza deliverer of approximately $130 in cash and one pizza. The complainant testified at defendant's trial that he could smell alcohol on the defendant and that the defendant's speech was slightly slurred at the time of the robbery. Additional testimony was offered in the defendant's behalf tending to show inebriation and possible lack of the requisite specific intent. Evidence contradicting this alleged condition was offered by the prosecution, and the court, sitting as trier-of-fact, found that defendant did entertain the intent to permanently deprive the complainant of the subject items.
Defendant was sentenced to serve a 3-1/2 to 7 year prison term; he appeals of right, raising a single allegation of error. Defendant contends he was denied the effective assistance of counsel, a constitutional guarantee derived from US Const, Am VI and Am XIV and specifically recognized in Gideon v Wainwright, 372 U.S. 335; 83 S Ct 792; 9 L Ed 2d 799; 93 ALR2d 733 (1963), in that unknown to the defendant his retained counsel had been suspended from the practice of law in Michigan for failure to pay bar dues. While defendant relies primarily upon his attorney's loss of status as evidence of a per se deprivation of his right to assistance of counsel, defendant also alleges rather generally that his attorney did not pursue the defendant's intoxication defense with sufficient effort.
Defendant alleges that his retained attorney was declared ineligible to practice law in the State of Michigan on January 22, 1977, due to his failure to remit state bar association dues. Counsel subsequently appeared on the defendant's behalf on two occasions during 1977. The defendant claims that counsel was not reinstated until December 15, 1977. The defendant's allegations are neither supported nor contradicted by the existing record.
The governing legislation, MCL 600.901, et seq.; MSA 27A.901, et seq., and the appropriate Supreme Court promulgated rules concerning the State Bar of Michigan, rules 4(a) and 4(b), clearly provide that payment of state bar dues is a prerequisite to the practice of law in Michigan. There is little question that the courts of this state possess the authority to deny one who fails to pay his bar dues the right to practice law in Michigan. See Ayres v Hadaway, 303 Mich. 589; 6 N.W.2d 905 (1942). Furthermore, we hold, as the fifth Federal circuit concluded in a similar case, that it is "not * * * unreasonable to assume that one of * * * [the dues-requirement] purposes was to eliminate those who, though trained in the law, were not interested in practicing the profession". McKinzie v Ellis, 287 F.2d 549, 551 (CA 5, 1961), cert den, 361 U.S. 869; 80 S Ct 130; 4 L Ed 2d 108 (1959). This being the case, the allegations raised by the defendant require a bifurcated analysis: first, does the defendant's retained attorney's suspension from practice for failure to pay dues ipso facto establish that the defendant was denied the effective assistance of counsel; and second, if not, does the record below suggest that, in fact, counsel's failure to pay dues evidenced that he no longer entertained sufficient interest in the practice of law to render the defendant adequate assistance of counsel.
In McKinzie, supra, the fifth circuit held that a defendant's guilty plea entered upon the advice of court-appointed counsel must be reversed where it was later learned that counsel similarly had been dropped from membership in the Texas State Bar for nonpayment of dues. The facts of the instant case differ only in that defendant unknowingly retained a suspended attorney. This fact alone does not render defendant's claim nugatory, since it is clearly established that the waiver of a constitutionally derived right must be intentional and therefore must be knowingly made. Johnson v Zerbst, 304 U.S. 458; 58 S Ct 1019; 82 L Ed 1461 (1938), and People v Michael Brown, 72 Mich. App. 7; 248 N.W.2d 695 (1976).
The New York Supreme Court recently confronted a question similar to that faced by the fifth circuit in McKinzie. In People v Felder, 61 App. Div. 2d 309, 311; 402 N.Y.S.2d 411 (1978), a 3-2 decision, the New York court affirmed the convictions of three defendants who were represented by a "Layman masquerading as a lawyer". The majority, relying on Harrington v California, 395 U.S. 250; 89 S Ct 1726; 23 L Ed 2d 284 (1969), and other cases, held that since the defendants were adequately represented, any error in the case was harmless beyond a reasonable doubt, not requiring reversal. The dissent, noting that the defendants retained attorney "never completed law school, never passed a Bar examination and had never been admitted to practice in this or any other jurisdiction", Felder, supra, at 317, adopted the following language from People v Cox, 12 Ill.2d 265, 269; 146 N.E.2d 19 (1957):
"`We must agree with the defendant that the term "counsel", as it is employed in the constitutional provisions relied upon means a duly licensed and qualified lawyer, and not an attorney in fact or a layman.'"
The dissent concluded at 318:
"I do not believe it is at all germane that this layman may have acted more or less capably than the most skilled lawyer. Surely, one need not expound upon the State's concern in licensing the profession of law. Whether he did so expertly or inexpertly is totally irrelevant. In licensing, the admitting court or State assures and certifies that the licensee has met minimal standards of education and character promulgated and adhered to by his peers over the centuries."
In People v Perez, 82 Cal.App.3d 45; 147 Cal.Rptr. 34 (1978), a case involving the appointment of a supervised law student to represent the defendant in a felony prosecution, a unanimous panel of the California Court of Appeals concluded that the doctrine of harmless error had no application where inadequate assistance of counsel is alleged. The court, citing Gideon, supra, concluded, at 147 Cal.Rptr. 44, contrary to the decision reached by the majority in Felder, that "the denial of the right to counsel at any critical stage is reversible per se". (Emphasis supplied.)
While we recognize that the constitutional guarantee of the right to effective assistance of counsel deserves the utmost protection, we disagree with the contention that defendant's retained attorney's suspension for failure to pay dues automatically necessitates the reversal of defendant's conviction. The instant case is not a matter of a "layman masquerading as a lawyer", Felder, supra, at 311; only a few months earlier defendant's attorney was fully qualified to represent him. No aspersions have been cast upon defendant's counsel's character.
There remains, however, the concern shown by the Court in McKinzie over the implications, in terms of quality of representation, arising out of counsel's having neglected to pay his annual dues. We hold, in accordance with the policy underlying the legislation and court rules above, that the failure of an attorney to remit his state bar dues is strong evidence that such attorney is no longer sufficiently interested in the practice of law to adequately defend his client's interests. For this reason, we remand the instant matter for an evidentiary hearing in order that the following may be established: first, whether defendant's allegations with respect to his attorney's suspension from practice are accurate; second, whether the defendant received inadequate assistance of counsel under the test set forth in People v Garcia, 398 Mich. 250; 247 N.W.2d 547 (1976), and People v Foster, 77 Mich. App. 604; 259 N.W.2d 153 (1977).
Remanded for proceedings consistent with this opinion. We do not retain jurisdiction.
D.E. HOLBROOK, JR., P.J., concurred.
I agree with the majority's conclusion that the failure of defendant's attorney to pay his bar dues does not make out a per se case of ineffective assistance of counsel.
However, I see no need for a remand in this case. My review of the trial record indicates that counsel did a fine job of representing defendant at trial. He objected to evidence, cross-examined witnesses and did a capable job of presenting an intoxication defense. Not surprisingly, on appeal, defendant is unable to point to any specific conduct constituting ineffective assistance of counsel.
Under these circumstances I believe a remand is unnecessary. No violation of the standard set forth in People v Garcia, 398 Mich. 250; 247 N.W.2d 547 (1976), occurred here. Therefore, I would affirm.