 |
Joel Brown |
|
Some States Seek Change in How Lawyers Are Regulated Vesna Jaksic Several states have been considering initiatives to limit judicial powers over such things as overseeing attorney admissions and discipline and determining who should be allowed to sit for the bar exam. Last year, bills over such issues were introduced in legislatures in Missouri, Montana and Wisconsin. None was enacted, but this year, similar initiatives are already under way in Arizona, South Carolina and Wisconsin. In South Carolina, a Republican legislator has proposed two bills that aim to take away the state Supreme Court's authority over bar admissions and attorney discipline. Dr. Kristopher "Kris" Crawford, a physician who sits on the state House Judiciary Committee, said a board consisting of mostly lawyers should be created to regulate the profession instead. "We give the sole authority for the regulation and admission of practice of law to the Supreme Court, which has the fundamental outcome of depriving lawyers of having a self-regulated profession," Crawford said. In an e-mail statement, the president of the South Carolina Bar called the proposed initiatives "troubling." "In order to dispense justice under the rule of law, the court system must be independent from outside influences of any kind, including the legislative and executive branches of government," said the Bar's president, Lanneau Wm. Lambert Jr., the managing partner in the Columbia, S.C., office of Turner Padget Graham & Laney. Similarly, an initiative in Arizona aims to shift the authority over bar licensing and discipline from the state Supreme Court to a legislative commission. "Most of the professions have their own board, and I guess we'd like to do that with lawyers, too," said Ted King, a retiree who chairs a group called the Committee for the Preservation of Constitutional Government, which is spearheading the initiative. King said he has not been able to get a legislator to introduce the initiative as a bill, so he is trying to collect enough signatures to get it on the November ballot. Daniel McAuliffe, president of the State Bar of Arizona, said he does not support such efforts. "It's trying to chip away at the authority of the courts," said McAuliffe, a partner in the Phoenix office of Snell & Wilmer. In Wisconsin, which has a biannual legislative session, resolutions are still pending from last year that would get rid of the current requirement for attorneys to join the State Bar of Wisconsin and pay dues and an annual $50 fee to help fund indigent defense. Republican Sheryl Albers proposed the bills in order to start a discussion about whether the state bar should be voluntary, as it briefly was in the 1990s, said her legislative aide, Kurt Simatic. As for the fees for indigent defense, they should be paid by the Legislature, he said. Thomas J. Basting Sr., the state bar's president and a member of Midwest Mediation LLC in Madison, Wis., said the organization's 50-plus-member board voted against the proposal. It would not only take vital funding away from the state bar but would encroach on the separation of powers, he said. Last year, several bills aimed at the legal profession never made it through. In Montana, Republican state Sen. Jerry O'Neil proposed a bill that would have allowed graduates of schools not accredited by the American Bar Association to sit for the bar. O'Neil said he is not sure if he will run again when his term expires at the end of this year, but he hopes someone will re-introduce the bill. In Missouri, Republican state Rep. Carl Bearden -- who has since resigned -- proposed a bill that would have allowed Legislature members with eight years of experience to take the bar exam. Rep. Bryan Stevenson, a Republican who chairs the state House Judiciary Committee, said he would oppose any such bills if re-introduced this year. "I spent three years and hundreds of thousands of dollars going to law school, and I feel it's a very valuable education," he said. "And if you're going to practice law, then you need to go through that process to take the bar." Intern's Use in Court Slammed By Sarah Prohaska Public Defender Diamond Litty calls it a clerical glitch and an unintended oversight. Her political opponents, however, say the discovery that a legal intern in her office was allowed to handle cases in court in St. Lucie and Indian River counties for several weeks without a required certification from the Florida Supreme Court is much more than a glitch. Donald Chinquina, a Fort Pierce lawyer running against Litty this year for the public defender seat, said he knew it might appear politically motivated, but he felt an ethical obligation to speak out about the situation. He said he was so concerned about potential repercussions for the defendants whose cases were involved that he filed a complaint against Litty last week with the Florida Bar. State rules require a lawyer to be a licensed member of the bar, but grant an exception for certified legal interns. These are typically law school students or someone who has graduated from law school, passed the bar and is waiting to be licensed. To speak on behalf of clients in court, the legal intern must have a letter of clearance from the state Supreme Court, said Lori Holcomb, a lawyer who specializes in unlicensed practice of law for the Florida Bar. "You need that piece of paper or to be sworn in as an attorney," Holcomb said. Litty insists the fact that one of her interns - who is now fully certified - represented indigent clients late last year without Supreme Court clearance was not intentional, nor was it the intern's fault. She said the intern involved, David Simmons, is fully qualified and has graduated from law school and passed the bar exam. He's just waiting to be sworn in as a lawyer and licensed. Typically, it takes about two weeks for the office to get the paperwork back from the high court for a qualified employee to work as a certified legal intern, she said. The public defender's office sent Simmons' application to the court late last year, and officials thought it had come back as usual within two weeks, Litty said. As a result, Simmons was allowed to handle some cases in felony court in Indian River County and misdemeanors in St. Lucie County with supervision, Litty said. Office acted immediately Litty said she wasn't sure how the office discovered it had not received Simmons' approval. But as soon as officials realized it, they took him out of court and informed the two judges in whose courtrooms he had worked. She said they later found out the applications had become backed up at the Supreme Court clerk's office because of the holidays. "The moment we realized, we immediately notified judges and pulled him out of the courtroom," Litty said. "It was an oversight. What normally routinely happens with the paperwork did not happen." Late last week, Simmons was approved for certification by the Supreme Court, and was back in the courtroom handling misdemeanors in St. Lucie County. He said Friday that he wasn't aware at the time that he didn't have the certification, but declined to comment further. He also confirmed he took the bar exam last summer and passed it. "David is great. He meets and goes above the requirements for a certified legal intern," Litty said. "He's very bright and very competent." Chinquina, Litty's rival, said the fact that Simmons eventually received approval didn't change his opinion that what had happened was more than an oversight and could have widespread repercussions. He said the defender's office needs to inform every client whom Simmons represented in court without certification. He thinks it could be used as basis for appeal or to have a plea thrown out. "I'm speechless she would call it a clerical error," Chinquina said. "We are all drilled in law school that you don't practice law without a license. I put the blame squarely on the public defender. There's no excuse not to check these things." Possible factor in appeal At least one client whose trial Simmons handled in October, under the supervision of one of the public defender's board-certified trial attorneys, said he's concerned about the situation and plans to bring it up in his appeal. James Wymer, 39, of Vero Beach was found guilty by a jury of battery on a law enforcement officer, resisting an officer without violence and refusing to sign a citation in Indian River County. He's now serving nine months in jail. "I think this is a big legal mistake," said Wymer, who said he didn't know Simmons wasn't a licensed lawyer. Bar rules require a client to sign a waiver in writing consenting to the use of an intern. Fort Pierce lawyer Rusty Akins, who has been in contact with Wymer about possibly handling his appeal, said he too thinks every client Simmons represented while uncertified should be informed. He agrees with Chinquina that it could affect the cases' outcomes. "If an intern does not have the proper certification, it's wrong to represent clients in court," said Akins, who added that he did not fault Simmons but rather the public defender's office. Chinquina said he filed a complaint Friday asking the Florida Bar to investigate the situation. He also wants to make sure the defender's office is following the rules that require indigent clients to consent in writing to using a certified legal intern, and that the interns are supervised at every critical stage of a proceeding. Litty said she didn't think that what she described as a paperwork glitch would have widespread repercussions. For defendants to get new trials, they must show prejudice on the part of her office, she said, which didn't happen in these cases. She thinks most of the controversy is spurred by election-year politics. She declined to comment on Chinquina's bar complaint, saying only, "We follow the rules."
|
|
A Feast
|
