*1 PEOPLE v PUBRAT 8, 1994, July Docket No. 162555. Submitted at Detroit. Decided 1, 1994, August appeal sought. at 9:05 a.m. Leave to pleaded Walter Pubrat nolo contendere in the Detroit Recorder’s Court, J., O’Brien, charges attempted John Patrick lar- ceny building carrying weapon. ap- in a and a concealed He pealed, claiming permitted that he should be to withdraw his because, plea hearing and he was represented by person a whose license to law had been suspended disciplinary for reasons. Appeals Court held: right The defendant was denied his to counsel under the right circumstances of this case. Denial of the to counsel is never harmless error. Reversed and remanded. Right Suspended Attorneys. — —
Constitutional Law to Counsel who, contendere, A defendant a of nolo is convicted person and sentenced while whose license to suspended law has been reasons is counsel; denied the because denial of the counsel can never be considered the conviction of appeal. such a defendant must be reversed on Kelley, Attorney General, Frank J. Thomas L. Casey, General, O’Hair, Solicitor John D. Prosecut- ing Attorney, Timothy Baughman, A. Chief of Training, Appeals, Research, and A. Robert Prosecuting Attorney, Radnick, Assistant for the people.
Peggy appeal. Madden, K. for the defendant on References 2d, Am Jur Criminal Law 732. § representation by person prac- Criminal defendant’s not licensed to tice law as violation of to counsel. 19 ALR5th 351. Accused’s to counsel under the Federal Constitution —Su- preme Court 18 L Ed 1420. cases. 2d Sawyer, P.J., Before: A. S. Weaver JJ. Turner,* pleaded
Sawyer, P.J. Defendant nolo contendere *2 attempted larceny building, 750.92; in MCL 750.360; 28.592, MSA 28.287 and MCL MSA carrying weapon, 750.227; a concealed MCL MSA proba- placed years’ 28.424. Defendant was on five appeals tion. He now we reverse. only argument appeal
Defendant’s on is that he permitted plea should be to withdraw his because attorney he was not practice an licensed to Michigan. agree. in law the State We by Defendant was in the trial court apparently James Cohen. Cohen was licensed to practice law the time he his entered initial appearance by matter, in this but time of the the taking plea of the Cohen had been 1 suspended practice question from the of law. The validity then is whether the of defendant’s is serving vitiated the fact the that individual as attorney proceedings his at those was not licensed practice law. Por the reasons to be discussed below, it we believe that does the render invalid. only Michigan other case of which we are aware similar is that addressed a issue v App
Brewer, 88 Mich 307 NW2d Brewer, In the defendant was this Court addressed a which case
represented attorney an who * assignment. judge, sitting Appeals by Circuit on the Court of suspended practice initially Mr. license to law Cohen’s be high cause of a conviction of a Mich B J 432 court misdemeanor.' 69 (1990). Thereafter, petition granted. his for reinstatement was (1992). However, grievance appealed Mich B J 210 administrator Board, Attorney Discipline that the hen’s license to and has (1993). to the which reinstatement reversed hearing granting Accordingly, panel’s order reinstatement. Co 6, 1992, suspended law was effective October apparently suspended remained ever 72 Mich B J 90 since. suspended had cause of a failure to from been law be-
pay bar dues. The Court adopt requiring reversal, declined to a rule but did remand the matter to trial court to determine light suspension, whether, of the the defendant deprived had been counsel. Id. at 762. of the effective assistance We need not determine whether Brewer was correctly because, view, decided our there exists important suspension an distinction between for pay failure to dues and attorney
reasons. In the situation where suspended pay dues, for the failure to that failure necessarily ability. does not reflect That is, noted, could, as the Brewer Court id. at it necessarily, but does not by reflect a lack of interest continuing law. On hand, the other it could also reflect financial diffi- *3 by simple neglect culties the or in the pay suspension Indeed, failure to the bar dues. the pay from for the failure to dues reflects as much an enforcement mechanism for the collec- mandatory tion of ing competent dues as it is a method ensur- representation.
and ethical theOn hand, other reflects a lack of either reasons
competency by or ethics attorney being disciplined. question Other states that have considered the representation of the effect of an individual not varying licensed results. For law have reached
example,
People Felder,
in
v
61 AD2d
(1978),
309;
layman may have acted more or less lawyer. Surely, one need not the most skilled licensing expound upon the State’s concern expertly or profession inexpertly admitting Whether he did so of law. licensing, In totally irrelevant. assures and certifies that court of State has met minimal standards of educa- the licensee tion and character his promulgated and adhered suggest I if we peers over the centuries. that occurred, rendering a wé are condone what here deni-, also, and, public grievous disservice to the pursuit. and learned grating our honorable has the We believe that the dissent Felder view of the matter. The conclusion that better of the to counsel can deemed denial harmless be. particular under the circumstances of a of the case overlooks the fact that denial counsel can never be deemed Perez, harmless. Washington, supra see also Strickland v 668, 692; 2052; 80 L 2d 674 US Furthermore, 104 S Ct Ed the fact that defendant was denied established virtue of the to him at the to counsel is person standing fact that time of the next having sentencing, although áttorney previously state, not this been attorney.. at the relevant times an elaborate means to The state has undertaken Supreme attorney. who can be an determine Court developed procedures by has extensive attorneys wish to become which individuals who stringent require- meet certain educational must background undergo ments, check deter- must *5 attorney, mine their character and and must submit fitness be an to a bar examination to deter- competence attorney. mine their to be an Further- Supreme place more, the Court has in an elabo- attorneys, rate mechanism to ensure that once practice suspending licensed, revoking law, remain fit to or attorneys prove the licenses of those who themselves unfit. view,
In our the state cannot now disavow those procedures practice and restrictions on the of law merely it because is convenient to do so in order to repercussions having avoid the allowed an unli- play attorney censed individual to the role of an prosecution. a criminal The state has defined what attorney and, an when defendant entered his sentenced, and was Mr. Cohen did not meet attorney. Moreover, definition of an this does supra, not involve a situation such Brewer, as in using licensing power where the state is its pieces extract a few of silver for the benefit of the discipli- association, bar nary but a situation where the positively authorities have determined that practice an individual was fit not to continue the and, indeed, of law thereafter made a second deter- mination that the individual was not fit to return petition to the of law for rein- statement. short,
In the trial court should never have al- Mr. lowed Cohen to as an in its courtroom after Mr. Cohen’s from of law on October 1992. The trial having dispensed obligation court’s with its only attorneys practice ensure that licensed law it, front of we cannot now absolve the denial defendant’s simple. to counsel. The formulation is Defendant had the to be supra. person repre- Gideon, counsel. who not, sented defendant was either at the time of the 206 Mich attorney. or the Therefore, defendant was denied his to counsel. Because denial to counsel can never be considered defendant’s conviction must be set aside. proceedings
Reversed and remanded for further opinion. consistent with this We do not retain *6 jurisdiction. J.,
S. A. Turner, concurred. (concurring). J. I concur in the result Weaver, only.