UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 2, No.2SPRING 1979
People v. Perez - An Initial Look At The Sixth Amendment Status Of Student Practice Rules
Catherine Walker
Despite the advent of the limited practice of law by law students as early as 1957,(fn1) a California Court of Appeals(fn2) in 1978 became the first court to examine the sixth amendment status(fn3) of student representation in state criminal prosecutions. In People v. Perez,(fn4)a California appellate court concluded that a lawyer-supervised law student, certified(fn5) for limited practice by the California Student Practice Rules,(fn6) is per se ineffective counsel in felony trials.(fn7) Ostensibly to protect the defendant's right to effective counsel,(fn8) Perez struck down the student practice rules without considering the proper function of certification in sixth amendment analysis.(fn9) 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(fn10) certified for limited practice by the California State Bar. With Perez's signed consent,(fn11) the student appeared on behalf of Perez at trial, conducting the defense under the deputy defender's direct supervision.(fn12) As the attorney supervised in silence,(fn13) the student examined witnesses, made objections and motions, and presented the closing argument to the jury, who ultimately convicted Perez on the felony charge.(fn14) Perez appealed, contending that despite the presence of an attorney of record, his representation by a law student violated his sixth amendment right to assistance of counsel.(fn15)
In reviewing Perez's sixth amendment claim, the appellate court treated the supervising attorney and the certified student as individuals with separate duties rather than as a team with a shared duty to render effective assistance. The court first reviewed the supervising attorney's role, holding his silent supervision amounted to pro forma representation lacking constitutionally required zeal(fn16) and disqualified him as effective counsel under sixth amendment principles.(fn17) Concerning the student's participation, the court held the student's in-court representation of Perez to be the unlawful practice of law by an unlicensed person, without statutory or judicial authorization.(fn18) The state argued authorization existed under California certification rules,(fn19) which permit a student, under a supervising attorney's immediate guidance, to represent felony defendants.(fn20) The court rejected this argument on two grounds.(fn21) First, the California Supreme Court had not officially approved the rules promulgated by the State Bar in 1970.(fn22) As the only body empowered to confer the right to practice law in California, the state supreme court's failure to adopt the rules rendered them an invalid exercise of licensing power by the State Bar.(fn23) Second, and more significant, the Perez court interpreted the sixth amendment to the Federal Constitution as proscribing supervised student representation in felony trials.(fn24)
The Perez court's rationale for the sixth amendment proscription of student felony representation has both a procedural and a substantive dimension. The procedural aspect of the decision inheres in the court's reliance on Justice Brennan's concurring opinion in Argersinger v. Hamlin.(fn25) In Argersinger, the United States Supreme Court extended the right to counsel to all criminal defendants facing possible imprisonment.(fn26) In his concurring opinion Justice Brennan voiced an expectation that students could make a significant contribution to the representation of the poor in many cases, including those reached by the Argersinger decision.(fn27) Because Argersinger involved a misdemeanor charge, the Perez court interpreted Justice Brennan's concurrence procedurally as restricting student representation to misdemeanor cases.(fn28) The substantive aspect, which focuses on defense counsel's actual performance,(fn29) surfaces in the court's discussion of the professional capabilities of student counsel.(fn30) By contrasting in the abstract "the conceded premise of the incompleteness of the training of the law student with the competence requirement of the licensed attorney in the trial arena,"(fn31) the court concluded, without examining the student's individual performance, that law students, as a class, are inherently incompetent to handle felony representation.(fn32)
The Perez court's summary conclusion that the certified student was per se ineffective counsel failed to advance the substantive sixth amendment guarantee of representation by reasonably competent counsel.(fn33) Although the student's involvement at trial presented a novel sixth amendment appeal,(fn34) an analogue existed in challenges to counsel's effectiveness involving a licensed attorney. Under modern sixth amendment analysis,(fn35) the mere presence of the licensed attorney at trial is not decisive, but is only a consideration in determining whether defendant received reasonably effective assistance.(fn36) Membership in the bar serves as evidence that counsel is minimally qualified and thus reasonably likely to be effective. Bar membership alone, however, cannot answer whether counsel in fact rendered effective aid in any particular case.(fn37) Only by scrutinizing counsel's individual performance in a specific case, can a court truly determine whether counsel rendered constitutionally adequate assistance.
In Perez, the law student's compliance with the California student practice rules serves a function analogous to the licensed attorney's membership in the bar. Certification is evidence that the student is reasonably likely to be effective in performing the authorized activities. Certification requirements, like bar membership, assure minimum qualifications for the scope of practice involved. Once a student satisfies those requirements a court should presume the student's competence to render assistance within the scope of authorized activities. Rather than presuming the student's competence and inquiring whether the student in fact rendered reasonably effective assistance, the Perez court summarily found ineffective representation.
The Perez per se rule creates an absolute bar to felony representation by students identified by a licensing body as qualified to satisfy sixth amendment guarantees under specified conditions. In proposing the practice rules, the California State Bar determined that certified students under direct supervision are presumptively capable of furnishing constitutionally effective assistance to all defendants.(fn38) As the legislative and administrative branch of the California Supreme Court,(fn39) the only governmental body with the power to admit persons to the practice of law,(fn40) the State Bar acted pursuant to its statutory duty(fn41) in promulgating the rules. By authorizing supervised student participation in activities formerly restricted to licensed attorneys,(fn42) certification encourages students to develop the practical skills often neglected by traditional legal education.(fn43) The student does not practice, however, at the expense of a defendant's constitutional rights because the rules require the student's academic preparedness,(fn44) the defendant's consent upon full disclosure of the student's role,(fn45) the supervising attorney's personal presence at the student's court appearance,(fn46) and the attorney's assumption of personal professional responsibility for the student's work.(fn47) The Perez court refused to defer to the State Bar's judgment that these requirements guarantee the student's minimum qualifications and provide basic protections to the client.(fn48) In its appellate capacity, the Perez court's responsibility was not to review the validity of certification rules the state judiciary...
