I was reading a few of the legal threads in this forum, and I was struck by a question: Suppose I’m charged with a crime, and I have a friend who I know is a very persuasive person, but has no legal training. Can I have him represent me at trial? Has this ever happened? Has the non-lawyer ever won?
I believe you will see an answer here momentarily from a lawyer telling you that would be practicing law without a license. IANAL.
If you don’t have attorney-client-privilege with your layperson-friend, would you care if the prosecution put your friend on the witness stand to extract information about you-the-defenedient?
Hmmmm…good point. OK, we’ll have to get him a priesthood in the universal church before we start, and then we can still have protected discussions under the guise of him ministering to me.
Actually, wait, upon a close reading of Wikipedia, attorney-client privilege may hold even if he’s not a trained legal professional: “in connection with this communication, is acting as an attorney,” so he only has to be acting as an attorney, which my friend is doing.
On edit, there’s an AND in that string of sentences, so he has to be an attorney-at-law, or acting for one. Hmmmm…
But I could represent myself, which isn’t practicing law without a license, is it? (Unless that’s how the man gets ya). Isn’t this a similar thing?
I always wondered what happened to him.
You can represent yourself. But someone who does not have a license to practice law could not represent you. They would in fact be engaging in the practice of law without a license, and they would probably get their ass kicked in court anyway (just like you will if you go pro se).
There are even unsettled issues about having someone represent you in things like an administrative proceeding. The current legal climate seems to be leaning away from even allowing that.
In New York State, at least, the receipt of any renumeration for legal advice or representation as attorney (other than an agreed-upon fee or charge-at-agrreed-rate for acts performed explicitly as attorney-in-fact, e.g., reimbursement for time taken off from work in order to review and sign legal papers you are specifically authorized to sign as your principal’s attorney-in-fact), that constitutes practicing law without a license.
I could give legal advice for free (and it would probably be worth what I charged for it:D). I could do legal research – and in fact did do so, as a state employee – and be paid for it. But I could not give legal advice for payment. My (non-lawyer) supervisor and I were scrupulous not to say anything that could be construed as telling the people we were doing the research for wjat to do. We could write the research up in such a way as to lead them to the appropriate conclusion, but were careful not to say or even suggest they should draw that conclusion.
Depending on the state’s proceduiral and defining-attorney-relationship statute and the court’s rules of procedure, I’d say that a non-lawyer might well be able to appear in behalf of a friend, and might even have a legally-cognizable attorney-client relationship, but that he would need to take care not to trespass on what is delimited to licensed attorneys. (And this is said as my personal non-lawyer opinion, without renumeration and without research into relevant law. IANAL, YANMC, and if anbyone is serious about actually doing this, they should consult their state’s Bar Association or local Legal Aid people and the court in question, IMO.)
IANAL
One comment I heard - the judge will often give a great deal of leeway to a person defending themselves; but any lawyer is expected to know the rules and minutae of the law. (Look at the umpteen rules of evidence that popped up in another thread last month). I suspect a judge would not be happy to allow a committee of amateurs to start wasting his time.
Yeah, it’s trivia, but the rules are there and explicit and worked out over the centuries to ensure that everyone knows exactly what evidence and lines of questioning are permissible, how to subpoena witnesses, what qualifies as an expert witness, what lines of questioning are permitted, etc. The golden tongue has very little to do with it.
I also suspect very few people, especially prepared prosecution witnesses, fall for the Perry-Mason-Law-and-Order crack 'em on the witness stand technique. The judge is more likely to catch points of law than fancy talk, so I hope it’s a jury trial. And even juries are a lot smarter than people give them credit for - and the judge gets last say with his instructions and can remind the jury of the exact point of law.
Not only that, but the Sixth Amendment guarantees you the right to counsel. Various courts have held this to mean adequate counsel. If the judge let your friend represent you, and you are convicted, you’d have a virtually automatic appeal on the grounds that you were not represented by a competent attorney.
In places with a UK history, there used to be a process called having a “McKenzie friend” to assist you at the Bar table. The idea was that they could help you with papers, prompt you, etc. In practice, because of the sock-puppet effect of the McKenzie friend asking questions through the notional litigant, this often devolved to the McKenzie friend actually taking a speaking role.
The principle behind it was a kindly one - people who were inarticulate could at least elevate themselves to the level of an articulate unrepresented litigant.
But it didn’t last long. Judges quickly discovered that there is a reason for the ethical obligations which bind advocates. Mackenzie friends were apt to lie, mislead, misrepresent the evidence, and generally try to act like TV lawyers, which often did more harm than good. Their availability is, IME, discouraged.
Attempts to use them in criminal trials don’t arise often, but when they do it is commonly as a result of the fact that the defendant has a crank view of the law to advance, and wants the non-lawyer author of the crank view to advance it. Or they have been persuaded that some gaol-house “lawyer” is better than any real practitioner and wants said fellow convict to speak for them. Either situation is unsavoury from the point of view of the courts and is usually not in the interests of the criminal defendant.
The court has a discretion in these matters, and usually won’t exercise it in these sorts of cases.
In US Tax Court,sometimes a Enrolled Agent can represent you, if he has been admitted. I believe there may be a few other exceptions like that in special courts.
Enrolled Actuaries? 
As an aside, one consequence of this rule is that a corporation appearing in court must always be represented by a lawyer. A non-lawyer CEO can’t try to defend the corporation by claiming that the corporation is representing itself.
Even more off-topic: Back when I was a law clerk, I sat in on a civil trial once where both parties (individuals) were proceeding without lawyers. It was excruciating.
This is what I came in here to say. A lawyer not admitted to the bar is automatically ineffective (i.e. inadequate under the 6th amendment) regardless of how well he does at trial. If you lose you’ll get another trial.
More interestingly, I don’'t know what would happen if you won the case with an unlicensed attorney. Anyone know?
No for almost all purposes. But yes is the exception. Suppose you think that your buddy is a bona fide lawyer and so does everyone else. He represents you, you are acquitted, and go your merry way. But suppose he loses, and you do time and while in the slam, you look up his bar number and find out he doesn’t have one. That’s probably grounds for a new trial because of ineffective assistance of counsel assuming he botched some obvious point. He is then likely to be prosecuted for practicing without a license, usually a misdemeanor in my jurisdiction. But at least he has the right to choose either himself or a real lawyer.
You’d win, period; depending on the matter.
Now, with that being said, understand that I (yes, IAAL) practice in a jurisdiction, where, under certain circumstances, non-lawyers can represent clients. Some are paralegals, who can only practice at certain courts and within certain narrowly-defined constraints (e.g. speeding ticket specialists in traffic court). Others are law students, volunteering for the law school’s legal clinic. If these unlicensed, non-lawyer folks win the case; well, the case is won. But as far as I am aware, no layperson not belonging to the above two groups can represent anybody at trial.
FWIW, I recall a few times when I was in court, waiting for my client’s matter to be called; and the judge politely but firmly told somebody that since they were not a lawyer, they could not represent their friend, no matter how much the friend (who was also in court) said it was okay. The friend had to either represent themself, or hire a lawyer. If the friend wished, the judge would gladly hold the matter over until a lawyer could be retained. But the judge refused to hear the somebody who wanted to represent the friend.
This is the case in Immigration Court as well, but the exception is limited to a few highly experienced paralegals, who are employees of nonprofit agencies that represent immigrants. They first need to, well, apprentice under an attorney experienced in the area of law, and then apply for some kind of certification to be allowed to represent people in immigration hearings. The ones I’ve seen in action did a better job than a lot of immigration attorneys, but sometimes that’s not saying very much. (There’s also an exception for law students, but they are generally just helping the supervising attorney prepare the case, not actually representing the person in court.)
Eva Luna, former interpreter/court clerk, Office of the Immigration Judge
Well said.
As you see by some of the wild questions and answers in these SD boards, even with people who have an interest in trivia and an inclination to learn stuff, the lack of knowledge of the “nuts and bolts” of law is frightening. Go to a board full of yahoos (Digg comes to mind) and the legal ignorance (general ignorance) is astounding over something that could be so crucial to daily life.
I cringe when someone tries to fix their own computer without knowledge. I assume lawyers cringe just as much when someone without law spouts a patently absurd opinion that any first-year law student should be able to refute. Speech is bad enough, but when someone puts their future residence or financial well-being on the line based on faulty “advice” it’s even scarier.
A Mckenzie friend is not strictly speaking someone who fits the scope of the OP. That friend is there to assist a litigant in person, s/he is not representing the litigant.
Now to answer the question, well there are two answers, No and happens all the time. For the time being I will disregard specialist tribunals or small claims courts and the like, and concentrate on regular criminal, civil and appellate courts.
Being a lawyer or being legally qualified in almost all common law juridictions does not on its own entitle you per se to appear in court, you need to have somethig called rights of audience in that court to appear before it. How such rights of audience is granted of course varies amongst jurisictions, but if you don’t have rights of audience you can’t appear for the most part. So this explains to No answer I gave.
Yet, you often have non-lawyers appearing in court representing clients. The most common way is when law students appear, remember in almost all jurisdictions, law students do not enjoy rights of audience. Law students generally appear in court as a result of some legal clinic or similar programme in their law school and they are overseen by their supervisor, technically it is the supervisor who is the lawyer and the students are just helping.
Another way is when a a junior who does not have rights of audience, appears in a case and argues before the court in a case where his senior has been instructed.