Status of Student Practice Rules People v. Perez—An Initial Look at the Sixth Amendment

People v. Perez - An Initial Look At The Sixth Amendment Status Of Student Practice Rules Despite the advent of the limited practice of law by law students as early as 1957,' a California Court of Appeals' in 1978 3 became the first court to examine the sixth amendment status of student representation in state criminal prosecutions. In People v. Perez,4 a California appellate court concluded that a lawyer-supervised law student, certified' for limited practice by 1. See, e.g., MASS. SuP. JUD. CT. R. 3:11 (1957), reprinted in F. KLEIN, S. LELmKo, & J. MAvrrY, BAR ADMISSION RULES AND STUDENT PRACTICE RULES 1064-65 (1978) [hereinafter cited as STUDENT PRACTICE RULES]; Wyo. BAR R. 18 (1957), reprinted in STUDENT PRACTICE RULES, supra, at 1155-57. Currently 47 states, the District of Columbia, 24 United States District Courts, and four United States Courts of Appeals have student practice rules. See generally STUDENT PRACTICE RULES, supra, at 913-77. For a thorough history of student practice and its pedagogic underpinnings, see Student Practiceas a Method of Legal Education and a Means of ProvidingLegal Assistance to Indigents: An Empirical Study, 15 WM. & MARY L. REv. 363 (1973) [hereinafter cited as Empirical Study]. 2. Court of Appeals, Fourth District, Division 1. Interestingly, prior to Perez, the Fourth District was the only California Court of Appeals disallowing student practice before its courts. Under the STATE BAR OF CALIFORNIA RULES GOVERNING THE PRACTICAL TRAINING OF LAW STUDENTS (adopted 1970) [hereinafter cited as CAL. STATE BAR Rs.], reprinted in STUDENT PRACICE RULES, supra note 1, at 1008-13, individual judges have absolute discretion to permit or prohibit law student participation in proceedings before them. CAL. STATE BAR Rs., supra, at VI.A.(3). 3. The sixth amendment provides that "[iln all criminal prosecutions the accused shall enjoy the right . . . to have the assistance of counsel for his defense." U.S. CONST. amend. VI. The United States Supreme Court has applied the sixth amendment right to counsel to state prosecutions through the due process clause of the fourteenth amendment. Argersinger v. Hamlin, 407 U.S. 25 (1972); Gideon v. Wainwright, 372 U.S. 335 (1963). Accord, United States v. DeCoster, 487 F.2d 1197 (D.C. Cir. 1973). Two state courts have dealt with appeal issues collateral to the sixth amendment status of the participating law students. In State v. Daniels, 346 So. 2d 672 (La. 1977), the Louisiana Supreme Court held that the defendant had fully consented to student participation in his defense and no reversible error resulted from the substitution of a second supervising attorney for the initial supervising attorney who was called out of town. In People v. Masonis, 58 Mich. App. 615, 228 N.W.2d 489 (1975), the court held that defense counsel's explicit announcement at the beginning of the trial that he was a certified law student satisfied the Michigan student practice rules and that the trial court had no duty to advise defendant personally that his appointed counsel was a law student. One commentator suggests student practice does not pose any threat to sixth amendment rights; rather, carefully constructed programs for student representation contribute meaningfully to the substantive right to counsel. See Monaghan, Gideon'sArmy: Student Soldiers, 45 B.U.L. REV. 445 (1965). 4. 147 Cal. Rptr. 34 (1978) (hearing granted by the California Supreme Court, Aug. 16, 1978) (no official citation exists for the Perez case because the supreme court's decision to hear the Perez appeal vacated the appellate court decision, rendering it a nonopinion unpublished in the official reporter). 5. Throughout this note, "certified law student" will mean a law student who has been authorized for limited practice within a jurisdiction by complying with the require- 1979] Student Practice Rules the California Student Practice Rules,' is per se ineffective counsel in felony trials.' Ostensibly to protect the defendant's right to effective counsel,' Perez struck down the student practice rules without considering the proper function of certification in sixth amendment analysis.9 Moreover, the court misapplied sixth amendment principles in concluding that the Constitution does not allow student representation in felony trials, irrespective of the presence of a supervising attorney at trial. In Perez, although a licensed supervising attorney maintained full responsibility for the conduct of the case, the student represented the defendant at trial. Prior to Perez's trial for second-degree burglary, the court appointed as Perez's counsel a deputy public defender, who then obtained the assistance of a law student'" certified for limited practice by the California State ments established by the authorizing body of the jurisdiction, generally the judiciary in its rule-making capacity. For a tabloid survey of student practice rules throughout the country, see STUDENT PRAccE RULES, supra note 1, at 960-77. 6. The California State Bar Association promulgated the student practice rules to provide practical training in lawyering skills neglected by traditional legal education. Memorandum of the State Bar of California at 21, In re of the Approval of the State Bar of California Rules Governing the Practical Training of Law Students (submitted Sept. 5, 1978) (memorandum sought California Supreme Court approval nunc pro tunc of the student practice rules) [hereinafter cited as Memorandum]. Although the California Supreme Court received copies of the California student practice rules immediately after the State Bar adopted them, the court never officially approved the rules. The Perez court concluded the rules authorized a species of admission to practice unapproved by the supreme court. 147 Cal. Rptr. at 43. Thus the law student's representation of Perez was the unlawful practice of law. Id. This conclusion prompted the California Bar to submit the memorandum to the state supreme court. Supreme court approval of the rules, however, does not resolve the constitutional issue the appellate court raised sua sponte regarding the effectiveness of the student's representation. See 147 Cal. Rptr. at 36, 43 n.3. 7. The court distinguished student representation in felony trials from student representation in misdemeanor trials, concluding the sixth amendment permitted the latter but prohibited the former. See 147 Cal. Rptr. at 39-41. The United States Supreme Court decision in Argersinger v. Hamlin, 407 U.S. 25 (1972), implicitly rejects this distinction for purposes of substantive right to counsel analysis. See S. KRANTz, C. SMrrH, D. RossMAN, P. FROYD, & J. HOFFMAN, RIGHT TO COUNSEL IN CRIMINAL CASES: THE MANDATE OF ARGERSINGER v. HAMLIN 3-177 (1976) [hereinafter cited as S. KRANTZ & C. SMrrIH]; notes 26, 29, & 35 infra. 8. For general examinations of the sixth amendment right to effective counsel, see Bazelon, The Defective Assistance of Counsel, 42 U. CN. L. REv. 1 (1973 (...truncated)