Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
8-23-1995
Vance v Lehman
Precedential or Non-Precedential:
Docket 94-1766
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995
Recommended Citation
"Vance v Lehman" (1995). 1995 Decisions. Paper 234.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/234
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1995 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
N0. 94-1766
RUSSELL L. VANCE
v.
JOSEPH LEHMAN, COMMISSIONER, DEPARTMENT OF CORRECTIONS;
THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA;
THE DISTRICT ATTORNEY FOR PHILADELPHIA COUNTY
Russell Vance,
Appellant
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civil Action No. 94-cv-00997)
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 13, 1995
BEFORE: STAPLETON, GREENBERG and COWEN, Circuit Judges
(Opinion Filed August 23, 1995)
Daniel M. Preminger
Suite 1050
42 South 15th Street
Robinson Building
Philadelphia, PA 19102
Attorney for Appellant
Deborah Fleisher
Assistant District Attorney
Donna G. Zucker
Chief, Federal Litigation
Ronald Eisenberg
Deputy District Attorney
Arnold H. Gordon
First Assistant District Attorney
Lynne Abraham
District Attorney
1
1421 Arch Street
Philadelphia, PA 19102-1582
Attorneys for Appellees
OPINION OF THE COURT
STAPLETON, Circuit Judge:
Petitioner-appellant Vance was convicted of murder in
the Philadelphia Court of Common Pleas. In this habeas corpus
proceeding, he collaterally attacks the validity of his
conviction on the ground that he did not receive the "Assistance
of Counsel for his defence" as mandated by the Sixth Amendment.
The license of Vance's lawyer to practice law in Pennsylvania was
"revoked" shortly after the conclusion of his representation of
Vance because he had made material misrepresentations of fact on
his application for admission to the Pennsylvania Bar. The
district court declined to grant relief, and for the reasons that
follow, we will affirm.
I.
Russell Vance was charged with the murder and
involuntary manslaughter of his landlord, as well as with robbery
and possession of an instrument of crime. Vance engaged the
services of Lewis Small, Esquire, to represent him in connection
with these charges. Small turned the matter over to an associate
in his office, Richard Potack, Esquire, who was ultimately
appointed by the court to represent Vance on April 15, 1985.
2
After a two day suppression hearing and other pretrial
proceedings, a jury was selected in early February of 1986. After
opening arguments and the calling of the first witness, Vance
decided to enter a plea of guilty to the murder charge. The court
then conducted a three day degree of guilt hearing, found Vance
guilty of murder in the first degree, and sentenced him to life
imprisonment.
Several days later, Vance filed a pro se motion to
withdraw his guilty plea, and subsequently, he submitted an
amended motion alleging ineffective assistance of counsel. A new
attorney was appointed to represent Vance, and the court held an
evidentiary hearing. Ultimately, it vacated Vance's sentence and
granted his motion to withdraw his plea. The Commonwealth
appealed. The Pennsylvania Superior Court reversed and
reinstated the judgment of sentence, Commonwealth v. Vance, 546
A.2d 632 (Pa. Super. Ct. 1988). Vance filed a Petition for
Allowance of Appeal to the Supreme Court which was denied.
Commonwealth v. Vance, 557 A.2d 723 (Pa. 1989). After an
unsuccessful post-conviction relief proceeding in the state
courts, Vance filed this federal habeas proceeding.
The record reveals a number of facts about Vance's
counsel of which Vance and the trial judge were unaware at the
time of trial. Potack graduated from Howard University School of
Law in May of 1975 and passed the California Bar Examination that
summer. He was admitted to the California Bar in December of
1975 and practiced law in that state for the next eight years.
His practice included criminal defense representations.
3
Potack began using cocaine regularly in 1980. Between
mid-1981 and the fall of 1983, former clients filed at least ten
complaints against him with the California disciplinary
authorities. In November of 1983, while these matters were under
investigation, Potack voluntarily ceased practicing law in
California, and in December, moved to Philadelphia.
Potack successfully took the Pennsylvania Bar
examination in February of 1984 and was admitted to that bar in
May. On his application for permission to take the bar
examination, he falsely represented that no charges for
professional misconduct were presently pending against him, that
no such charges had been filed in the past, and that he had not
undergone treatment for the use of drugs. In addition, he
represented that he had not been arrested or prosecuted for any
crime when he knew there were outstanding warrants for his arrest
for passing worthless checks in California.
Two weeks after he began his representation of Vance,
Potack entered a stipulation with the California disciplinary
authorities regarding the professional misconduct complaints
against him. He stipulated that while he was an attorney, he had
(1) withdrawn from employment without refunding unearned fees
paid in advance in four cases; (2) represented clients with
conflicting interest without obtaining the consent of all
concerned parties; (3) failed to use reasonable diligence and his
best judgment for the purpose for which he was employed in four
cases; and (4) failed to deposit funds received on behalf of a
client in a separate, identifiable bank account. On June 21,
4
1985, the disciplinary authorities recommended to the California
Supreme Court that Potack be suspended from the practice of law
for three years, that the suspension be stayed, and that he be
placed on probation on the conditions that he serve a one year
suspension, make restitution, pass the professional
responsibility examination, and participate in a drug
rehabilitation program. The record does not disclose the date
upon which Potack's suspension in California commenced.
On January 13, 1986, approximately three weeks before
the jury was selected for Vance's trial, the Pennsylvania State
Board of Law Examiners petitioned the Pennsylvania Supreme Court
to revoke Potack's admission to the bar. The Board's petition
alleged that if it had known of Potack's failure to truthfully
answer questions inquiring into professional and criminal
misconduct and narcotics abuse, it would not have given him
permission to sit for the Pennsylvania Bar Exam and would have
found that he did not meet the Board's character standards to
practice law. The Supreme Court of Pennsylvania granted the
Board's "Petition to Revoke Admission to the Bar" on April 16,
1986.
When Vance's trial judge vacated his sentence and
permitted him to withdraw his guilty plea, she acted in part
based on her view that the April 16, 1986 order of the
Pennsylvania Supreme Court had the "effect of making [Potack's]
membership in the Pennsylvania Bar void ab initio." App. 44D.
Citing People v. Washington, 384 N.Y.S.2d 691 (N.Y. Sup. Ct.
1976), for the proposition that the term "counsel" in the Sixth
5
Amendment referred to "a duly licensed lawyer and nothing less,"
id. at 692, she held that Vance had not received the
constitutionally required assistance of counsel for his defense.
App. 44D, 52D.
The Superior Court took a different view of the
predicate state law issue. It rejected the view that Potack's
membership in the Pennsylvania Bar had been void ab initio.
Commonwealth v. Vance, 546 A.2d at 636. Accordingly, it held
that "[a]t the time Mr. Potack represented [Vance], he was a
member of the Pennsylvania Bar" and authorized by Pennsylvania
law to conduct Vance's defense. Id. at 635.
II.
Vance's federal habeas corpus petition does not seek
relief on the ground that Potack did or failed to do something
during his representation of Vance that breached his professional
responsibilities in a way that prejudiced the defense of the
case. Vance's brief before us tacitly recognizes that the record
will not support a contention that he is entitled to a new trial
under the standard announced in Strickland v. Washington, 466
U.S. 668 (1984); the record does not affirmatively show that
counsel's performance was deficient and that this deficient
performance prejudiced the defense. Rather, Vance presses the
theory accepted by the Court of Common Pleas: the representation
by Potack was a per se violation of the Sixth Amendment without
regard to the quality of his performance.
6
We begin our analysis of Vance's contentions with the
basic principles underlying right to counsel jurisprudence.
The right to the effective assistance of
counsel is . . . the right of the accused to
require the prosecution's case to survive the
crucible of meaningful adversarial testing.
When a true adversarial criminal trial has
been conducted -- even if defense counsel may
have made demonstrable errors -- the kind of
testing envisioned by the Sixth Amendment has
occurred.
United States v. Cronic, 466 U.S. 648, 656 (1984) (footnote
omitted). Accordingly, "[a]bsent some effect of challenged
conduct on the reliability of the trial process, the Sixth
Amendment guarantee is generally not implicated." Id. at 658.
Nevertheless, as Vance stresses, there are "circumstances that
are so likely to prejudice the accused that the cost of
litigating their effect in a particular case is unjustified." Id.
The circumstances in which prejudice has been found so
likely as to be presumed are very rare. The Court in Cronic set
forth a few examples that illustrate the degree of risk of
prejudice that must be present before its demonstration is
excused. If the defendant has no representation of any kind, his
conviction is per se invalid. Id. at 659. The same is true if,
for any reason, the defendant's counsel is prevented from
assisting him during a critical stage of the proceeding. Id.
"Similarly, if counsel entirely fails to subject the
prosecution's case to meaningful adversarial testing [by
foregoing cross-examination of the prosecutor's witnesses], then
there has been a denial of the Sixth Amendment rights that makes
7
the adversary process itself presumptively unreliable." Id.
(citing Davis v. Alaska, 415 U.S. 308 (1974)).
Another situation which would warrant the application
of a per se rule finding a violation of the Sixth Amendment is
where the defendant is represented by someone with little or no
legal training who is masquerading as an attorney. See Harrison
v. United States, 387 F.2d 203, 212 (D.C. Cir. 1967) ("layman
masquerading as a qualified attorney" cannot provide assistance
of counsel), rev'd on other grounds, 392 U.S. 219 (1968); People
v. Felder, 391 N.E.2d 1274, 1275 (N.Y. 1979) (assistance of
counsel denied where legal representative was not a member of the
bar and had not completed law school); Cf. United States v.
Wilhelm, 570 F.2d 461, 465 (3d Cir. 1978) ("Counsel" within the
meaning of the Sixth Amendment contemplates one with professional
qualifications, not lay persons). While Vance acknowledges that
there is a difference between such an imposter and one in
Potack's position, he insists that the likelihood of prejudice to
his case was sufficiently great to warrant the same result.
The courts have consistently looked to the licensing
authorities of the legal profession to determine in circumstances
of this kind the boundaries of the per se exception to the
Strickland rule. If a lawyer is authorized by those authorities
to practice law, his or her performance on a criminal defendant's
behalf is acceptable for Sixth Amendment purposes so long as the
Strickland criteria are not met. See Reese v. Peters, 926 F.2d
668, 670 (7th Cir. 1991) ("The constitutional question is whether
the court has satisfied itself of the advocate's competence and
8
authorized him to practice law."); Bellamy v. Cogdell, 974 F.2d
302, 306-07 (2d Cir. 1992) (en banc) (per se rule only applied
where lawyer is not licensed or where there is conflict of
interest), cert. denied, 113 S. Ct. 1383 (1993). See also United
States v. Stevens, 978 F.2d 565, 568 (10th Cir. 1992) (lawyer
disbarred from federal court but not from state court provides
assistance of counsel in federal trial); United States v.
Hoffman, 733 F.2d 596 (9th Cir.) (representation in federal court
by one suspended from practice by state bar not equivalent to
representation by one who has never been qualified to practice in
any jurisdiction), cert. denied, 469 U.S. 1039 (1984). On the
other hand, with exceptions for licensing defects unrelated to a
person's competence to practice law,1 the courts have generally
viewed representation by someone not authorized to practice law
as a per se violation of the Sixth Amendment. Reese, 926 F.2d
668; United States v. Novak, 903 F.2d 883 (2d Cir. 1990); United
States v. Mouzin, 785 F.2d 682, 697 (9th Cir.), cert. denied, 479
U.S. 985 (1986); Solina v. United States, 709 F.2d 160 (2d Cir.
1983); People v. Felder, 391 N.E.2d 1274 (N.Y. 1979); Huckelbury
v. State, 337 So.2d 400 (Fla. Dist. Ct. App. 1976).
1
E.g., Reese v. Peters, 926 F.2d 668 (7th Cir. 1991)
(suspension for failure to pay bar dues); United States v.
Costanzo, 740 F.2d 251 (3d Cir. 1984) (failure to be admitted pro
hac vice), cert. denied, 472 U.S. 1017 (1985); Wilson v. People,
652 P.2d 595 (Colo. 1982) (representative met substantive
requirements but failed to take the formal oath for membership in
the bar), cert. denied, 459 U.S. 1218 (1983); Ex parte Engle, 418
S.W.2d 671 (Tex. Crim. App. 1967) (representation begun before
formal admission to bar took place). But see McKenzie v. Ellis,
287 F.2d 549, 551 (5th Cir. 1961) (representation by attorney who
failed to pay state bar dues and was therefore not authorized to
practice constituted violation of due process).
9
In this case, Pennsylvania's intermediate appellate
court has held that under Pennsylvania law, Potack was authorized
to practice before the courts of that state at the time he
represented Vance. Pennsylvania's highest court has declined to
review that decision and Vance has pointed to nothing suggesting
that that court would reach a different result were it to
consider the issue. Under these circumstances, we accept the
holding of the Superior Court as the law of Pennsylvania. See
West v. American Tel. & Tel. Co., 311 U.S. 223, 236-237 (1940).
Vance acknowledges that Sixth Amendment jurisprudence
has traditionally looked to the licensing authorities of the
legal profession to set the boundaries of the per se violation
rule. He insists, however, that Potack's state-conferred
authority should not control here for two reasons. First, Vance
points to the allegation of the Board's petition that it would
not have recommended his admission to the Pennsylvania Bar had it
known that he had lied on his application. Second, he asserts
that Potack was laboring under a conflict of interest during his
representation of Vance. Neither of these arguments persuades us
that the risks of prejudice to Vance were sufficient to warrant
application of the per se rule. Moreover, we believe that
application of the per se exception in circumstances of this kind
would impose an intolerable burden on trial courts and create an
intolerable degree of uncertainty about the finality of criminal
judgments.
Potack was far from an untrained imposter. He was a
graduate of an accredited law school, he had been certified by
10
the California Bar authorities as competent to practice law in a
process untainted by misrepresentation, he had practiced law for
over a decade, and he had been tested and found knowledgeable
about Pennsylvania practice and procedure. The only thing that
distinguished him from the majority of attorneys who represent
defendants day in and day out in our criminal justice system was
that he had been guilty of prior, but unrelated, breaches of his
professional responsibility.
As Vance stresses, during the representation, Potack
had stipulated to having breached his professional responsibility
to several former California clients and stood accused of having
lied on his Pennsylvania Bar Exam application. These were
serious breaches of professional ethics. They cannot be, and
have not been, condoned. At the same time, experience has taught
that lawyers, like other human beings, occasionally fall from
grace. This is an unfortunate fact of life and is, of course,
one of the principal reasons why the legal profession has
disciplinary systems. Our courts have traditionally relied upon
these systems to adjudicate and evaluate alleged professional
defalcations. As a result, where breaches of professional
responsibility are unrelated to the representation of the
defendant, courts have not regarded the imposition of sanctions
as relevant to the adequacy of an attorney's representation and
have not given disbarment orders retroactive effect for Sixth
Amendment purposes. United States v. Mouzin, 785 F.2d 682, 698
(9th Cir.), cert. denied, 479 U.S. 985 (1986). In those
instances where lawyers have been sanctioned or disbarred for
11
conduct predating but unrelated to a criminal representation, the
risk to the defendant has not been considered sufficient to
warrant application of the per se rule. Waterhouse v. Rodriguez,
848 F.2d 375, 383 (2d Cir. 1988) (disbarment of defendant's
counsel during pretrial suppression hearing did not result in
denial of defendant's Sixth Amendment right to effective
assistance of counsel where attorney was member of bar when
hearing began and ceased representation immediately after
learning of disbarment); Mouzin, 785 F.2d at 698 (disbarment from
court of appeals for conduct unrelated to ongoing representation
in district court does not render such representation
ineffective); Roach v. Martin, 757 F.2d 1463, 1479-80 (4th Cir.),
cert. denied, 474 U.S. 865 (1985) (state bar authorities'
investigation of lead counsel during trial did not warrant
presumption of prejudice); Hoffman, 733 F.2d at 602 (attorney's
suspension from practice by his home state bar during federal
district court trial not cause for per se finding of
ineffectiveness); United States v. Sielaff, 542 F.2d 377, 380
(7th Cir. 1976) (subsequent disbarment of petitioner's counsel
"was irrelevant to his performance at petitioner's trial");
Hernandez v. Wainwright, 634 F. Supp. 241, 246 (S.D. Fla. 1986)
(trial counsel's disbarment five years after defendant's
conviction was not sufficient to find that counsel had rendered
ineffective assistance at trial absent showing of direct nexus
with prejudice at trial), aff'd, 813 F.2d 409 (11th Cir. 1987).
If courts were to accept the rule for which Vance
contends, trial judges would no longer be able to rely on the
12
existence of de jure authority to practice law. Their only
recourse would be to conduct an in-depth inquiry into the moral
character of defense counsel in each and every case. Given the
difficulty of marshalling the relevant information, even then,
they would have little assurance that the particular criminal
case before them could be tried to an unimpeachable judgment.
We find this case readily distinguishable from United
States v. Novak, 903 F.2d 883 (2d Cir. 1990), upon which Vance
principally relies. In Novak, the defendant had been represented
by a person who had fraudulently gained admission to the New York
Bar by applying for an exemption from the bar exam requirement
which was intended for those whose legal studies were interrupted
by military service and for which he was ineligible. The court
found a per se Sixth Amendment violation. Because defense
counsel had never been validly licensed to practice in any state
and, thus, "[h]is competence to practice law had never been
tested," the court found the situation there to be like that of
an imposter. Novak, 903 F.2d at 890. In this case, Potack had
been admitted to practice in California and had demonstrated his
mastery of Pennsylvania law and practice. While he had
previously engaged in professional misconduct unrelated to
Vance's case, that does not cause us to question what seems
readily apparent from a review of the record -- Potack exposed
the government's case to "the crucible of meaningful adversarial
testing." Cronic, 466 U.S. at 656.
Nor does Vance's allegation of a conflict of interest
undermine our confidence in the integrity of the proceedings
13
before the Court of Common Pleas. Vance suggests that Potack's
self-interest conflicted with Vance's interest in mounting a
vigorous and aggressive defense. His theory is that Potack may
have refrained from conducting such a defense for fear of
prompting an investigation into his (Potack's) background.
Vance is correct in pointing out that some conflicts of
interest have been found to justify invocation of the per se
violation rule. "Prejudice is presumed," however, "only if the
defendant demonstrates that counsel 'actively represented
conflicting interests' and that 'an actual conflict of interest
adversely affected his lawyer's performance.'" Strickland, 466
U.S. at 692 (quoting Cuyler v. Sullivan, 446 U.S. 335, 348, 350
(1980)) (emphasis supplied). More specifically, the defendant
must identify something that counsel chose to do or not do, as to
which he had conflicting duties, and must show that the course
taken was influenced by that conflict. See Burger v. Kemp, 483
U.S. 776 (1987); United States v. Gambino, 788 F.2d 938 (3d
Cir.), cert. denied, 479 U.S. 825 (1986). If the defendant
carries this burden, the requisite degree of risk of prejudice is
established and the defendant does not have to demonstrate that
the result of his trial would have been different absent the
conflict. Strickland, 466 U.S. at 692 (citing Cuyler v.
Sullivan, 446 U.S. at 349-50).
In the cases relied upon by Vance, Novak and Solina,
counsel was not properly licensed to practice law. Accordingly,
the representation of the defendant was itself a crime -- i.e.,
the unauthorized practice of law. In these circumstances, a
14
vigorous and successful defense of the client might well
influence the exercise of the prosecutor's discretion in the
future should the absence of a license subsequently come to
light. Novak, 903 F.2d at 890; Solina, 709 F.2d at 164. While
we are not certain that the defendants in these cases satisfied
the criteria set forth by the Supreme Court in its conflicts of
interest jurisprudence, we can understand the concerns that led
these courts to the result reached.2
Courts have reached a different result, however, where
a conflict of interest has been alleged involving an attorney who
was authorized to practice law, but was the subject of a
professional misconduct investigation. In these circumstances,
the courts have been unwilling to find a per se violation based
on the theory that the defense of the criminal case would be
prejudiced by the attorney's desire not to alienate the
prosecutor or the court. See Waterhouse, 848 F.2d at 383
(attorney had no reason to fear that vigorous defense would
expose him to unrelated charges of misappropriation of client
2
This court had a similar concern in United States v. DeFalco,
644 F.2d 132 (3d Cir. 1979), which involved a similar, but more
egregious, conflict. There we applied the per se violation rule
in a case where the defendant's lawyer, while litigating the
defendant's appeal, had been indicted and pleaded guilty in the
same district court the defendant had been convicted in and had
negotiated a plea bargain for himself with the same United States
Attorney's Office that had tried the defendant's case. We were
concerned about the direct conflict between counsel's duty to
persuade the appellate court of error in the defendant's trial
proceedings and his self-interest in not alienating the
prosecutor with whom he was negotiating and the court by which he
would be sentenced. Our holding there was a narrow one,
expressly limited to these facts, and is not implicated here. Id.
at 136-37.
15
funds); Mouzin, 785 F.2d at 699 (attorney's disbarment from
appellate court, without more, does not place attorney into
adversarial position with defendant being tried in district
court); Roach, 757 F.2d at 1479-80 (conflict of interest should
not be presumed absent showing that investigation into attorney's
conduct by licensing authorities simultaneously with attorney's
representation of defendant impaired attorney's ability to defend
client); Hoffman, 733 F.2d at 602 (attorney's suspension from his
home state bar and his failure to inform federal district judge
did not place him "in an adversarial position relative to" the
defendant). Where, as here, the professional misconduct charge
and the criminal defense are wholly unrelated, nothing done or
foregone in the criminal defense can effect the result in the
ethics proceedings and we perceive no actual conflict between the
lawyer and his client. If anything, we believe a lawyer under
fire for past misconduct is likely to be highly motivated to give
the best professional representation possible. Waterhouse, 848
F.2d at 383.
In this case, Potack was authorized to practice law and
his representation of Vance was not a crime. Accordingly, he had
no fear of subsequently being the subject of a judgment by
Pennsylvania's prosecuting authorities. Moreover, the petition
to revoke Potack's license was filed well before Vance's trial
began and his plea was entered. The facts concerning Potack's
past were thus already known to the Pennsylvania courts and
disciplinary authorities before these critical phases of the
proceeding. Even with respect to the earlier part of the
16
representation, however, we perceive no actual conflict. We
believe a lawyer who wishes to minimize his chances of coming to
the attention of the disciplinary authorities has every reason to
render the best possible professional representation.
III.
Vance's lawyer had previously violated his professional
responsibilities on a number of occasions. Those violations were
unrelated to Vance's defense, however, and the record does not
suggest any similar defalcation here. To the contrary, the
record indicates that Potack rendered a professionally competent
and vigorous performance. While it is, of course, possible that
Potack did not live up to his professional responsibilities to
Vance in some way unreflected in the record, the potential for
prejudice to Vance under the circumstances of this case is not
sufficiently great to place this case in the same category with
the cases that have applied a per se rule. The judgment of the
district court will be affirmed.
17