People v. Wilson

KIRSHBAUM, Judge,

dissenting.

Because I fear the rule adopted and applied by the majority will prove frail armor for the safeguarding of the fundamental constitutional right here in issue, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), I respectfully dissent.

By failure to take the oath subjecting him to the ethical rules of the legal profession, defendant’s representative was precluded from practicing law. To measure the federal constitutional concept of “counsel” in terms of the actual performance of individuals with diverse qualifications in given cases merely invites difficult future distinctions and establishes no solid basis for predicting results of future disputes over the “adequacy” of particular non-lawyer endeavors. Indeed, one is left with no real distinction between serving as one’s own counsel and employment of an attorney at law.

I find the reasons and the rule articulated in People v. Felder, 47 N.Y.2d 287, 391 N.E.2d 1274, 418 N.Y.S.2d 295 (1979) most persuasive, and conclude that a person must be admitted formally to the practice of law in some jurisdictions before that person can satisfy a defendant’s constitutional right to assistance of counsel. The results reached in Farr v. United States, 314 F.Supp. 1125 (W.D.Mo.1970) aff’d, 436 F.2d 975 (8th Cir.), cert. denied 402 U.S. 947, 91 S.Ct. 1639, 29 L.Ed.2d 116 (1971), and Johnson v. State, 225 Kan. 458, 590 P.2d 1082 (1979), relied upon by the majority here, can be achieved by careful application of this formulation of a per se rule; hence, those decisions are not contrary to such principle.

Application of such a per se threshold test in this case would require reversal of defendant’s conviction. However adoption'of such rule would establish a clear, uniform and fair standard for those few instances when one who seeks to exercise the Sixth Amendment right to obtain assistance of counsel discovers that the person retained is in fact not an attorney at law.