2/27/12. TLOA A Review of Jurisdictional Licensing Requirements in the U.S.

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1 TLOA A Review of Jurisdictional Licensing Requirements in the U.S. Patricia Rae Lenzi Program Attorney NTJC With thanks to Professor Alfredo Garcia, St. Thomas University School of Law, Miami FL Dorothy Alther, California Indian Legal Services, Senior Attorney Christine Folsom-Smith, Director, National Tribal Judicial Center What Do You Need to Issue Enhanced Sentencing Under TLOA in Your Tribal Court? A Defense attorney - 25 USC 1302(c) "(1) provide to the defendant the right to effective assistance of counsel at least equal to that guaranteed by the United States Constitution; and 1

2 What Do You Need to Issue Enhanced Sentencing Under TLOA in Your Tribal Court? A Defense attorney - 25 USC 1302(c) (2) at the expense of the tribal government, provide an indigent defendant the assistance of a defense attorney licensed to practice law by any jurisdiction in the United States that applies appropriate professional licensing standards and effectively ensures the competence and professional responsibility of its licensed attorney." What Do You Need to Issue Enhanced Sentencing Under TLOA in Your Tribal Court? A Defense attorney - 25 USC 1302(c) (2) at the expense of the tribal government, provide an indigent defendant the assistance of a defense attorney licensed to practice law by any jurisdiction in the United States that applies appropriate professional licensing standards and effectively ensures the competence and professional responsibility of its licensed attorney." What Do You Need to Issue Enhanced Sentencing Under TLOA in Your Tribal Court? A Law-trained judge 25 USC 1302(c) "(3) require that the judge presiding over the criminal proceeding (A) has sufficient legal training to preside over criminal proceedings; and (B) is licensed to practice law by any jurisdiction in the United States " 2

3 In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. (US Const. 6 th Amendment)(emphasis added) (spelling as in original text) Strickland v. Washington U.S. 668 (1984) United States v. Cronic U.S. 648 (1984) Strickland v. Washington U.S. 668 (1984) The benchmark for judging any claim of ineffectiveness must be whether counsel s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Strickland at

4 Strickland v. Washington U.S. 668 (1984) Two prong test (1) performance of counsel was deficient; and (2) the deficient performance prejudiced the defendant (Strickland at 687) If you can t meet both prongs of test, the convictions stand and Constitutional standard has been met An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. Strickland at 691, citations omitted. It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. Virtually every act or omission of counsel would meet that test. Strickland at 693, citations omitted. 4

5 United States v. Cronic U.S. 648 (1984) Check-kiting case Appointed attorney had no trial experience, no criminal law experience, was a real estate lawyer, who had very little time to prepare; and put on no defense Close enough for Supreme Court Every experienced criminal defense attorney once tried his first criminal case. Moreover, a lawyer's experience with real estate transactions might be more useful in preparing to try a criminal case involving financial transactions than would prior experience in handling, for example, armed robbery prosecutions. The character of a particular lawyer's experience may shed light in an evaluation of his actual performance, but it does not justify a presumption of ineffectiveness in the absence of such an evaluation. Cronic at 665. (emphasis added) PADILLA v. KENTUCKY S.Ct (2010) (No ) ONLY if VAWA amendment and reauthorization gives tribes jurisdiction over non-indians - this will apply in TLOA sentencing-enhanced cases against non- Indians. 5

6 PADILLA v. KENTUCKY S.Ct (2010) (No ) Court must give advisement during taking of plea - to defendant who could face deportation if convicted Maybe it will extend to sex offenders Unique Direct consequence The severity of consequence -and if there is a close connection to the criminal process What do U.S. States / Territories Require and Still Meet the 6 th Amendment They each set own standards to issue licenses to attorneys They each set own standards for judicial authority and qualifications US Jurisdictions Where Person Can Seek Initial License as Attorney Without a JD California Virginia Washington (state) Wyoming Vermont Maine New York New Hampshire (if through Daniel Webster Honors Program at NH School of Law) 6

7 U.S. Jurisdictions Where A Person Can Obtain Attorney License if First Licensed as Attorney in Another Territory or State of U.S. and NO JD Required District of Columbia Rhode Island Hawaii Florida Iowa South Dakota (maybe) Tennessee Vermont Wisconsin Virginia California Washington (state) New Hampshire (if you were first licensed in VT) Michigan Maryland Arizona EXCEPTION to law reader type states is Wyoming MUST HAVE JD - even if applying as attorney admittee 7

8 What Constitutes Sufficient Training in Non- Law School jurisdictions? Essentially an apprenticeship in a law office or with a judge Varies on # hours and years, but generally 3-4 years can be just 1 year with 2 more years of any law school Tests required along the way Course of Study may have to be approved by state licensing authority in advance, or along the way Ethical Standards AKA ensuring professional responsibility in a jurisdiction s attorneys MPRE the Multistate Professional Responsibility Exam CLEs in ethics and professional responsiblity MPRE* or Not? Most US jurisdictions require it Not required in Connecticut (must alternatively pass an ethics class) Maryland Wisconsin American Samoa Puerto Rico Washington state (until 2013, then MPRE is sufficient) TLOA (but something must be required under 25 USC 1302(c )(1) and (3)) 8

9 Ethics or CLE? Some states require no CLEs others require no ethics or professional responsibility hours but do require CLEs Alaska District of Columbia Connecticut Hawaii Maryland Massachusetts Michigan South Dakota American Samoa What do U.S. States / Territories Decide Regarding Limits of Judicial Authority? Judges may be non-attorneys who have limited jurisdiction Non-felonies or only through preliminary hearing Civil cases under a certain $ value What do U.S. States / Territories Decide Regarding Limits of Judicial Authority? Judges may non-jd, but are attorneys who do not have limited jurisdiction Any case at any level is ok 9

10 Some U.S. Jurisdictions Where You Can Serve as Judicial Officer Without a Law Degree* US Supreme Court no limit on cases that can be heard 64 of 110 never went to law school California* District of Columbia* Rhode Island* There are more * You will still have to be a licensed attorney 6 th Amendment Right to Counsel Constitution does not apply in tribal court UNLESS congress says it does Congress stated tribal court defense attorneys must meet standards of Constitutional requirements if enhanced sentencing is sought Long line of cases make it clear that 6 th Amendment right to counsel means attorney and not lay advocate or legal advocate EXERCISE YOUR RIGHTS AS A SOVEREIGN NATION Call the people employed to provide indigent criminal defense a defense attorney. Each tribe can set its own standards for them education, continuing training, testing, whatever licensing standards meet the tribe s needs. Each tribe can have the standard include adhering to a Code of Ethics or Rules of Court or Code of Professional Responsibility passed by the tribe 10

11 Each tribe can decide if law school attendance or graduation, is needed or not, before attorney applicant can take tribal bar exam it is the tribe s choice on that ABA-approved school or non-aba approved (or simply if approved by the tribe states do that!) Other tribally-approved course of study under a tribally licensed attorney or judge or if certified by a training entity as having completed course Require a JD from an ABA-approve (or non-approve) law school, plus MPRE at expense of applicant, is sufficient Permit that graduates of law school need not take tribal bar exam, but other requirements are sufficient Determine that 4 years paralegal experience plus course in Indian law plus tribal bar exam is sufficient State that only persons licensed to practice law in state jurisdiction will be permitted to be licensed as attorneys before the tribe State that all persons licensed to practice before state courts are permitted to apply for license to practice in tribal court if certain criteria are met 11

12 Set your standard for judges. Judges can be licensed to practice law by the tribe (in the tribe s jurisdiction) if: They are a state-licensed attorney; or They are a law school graduate; or They pass a tribal bar exam and have completed certain training requirements such as earning a certificate of completion of Basic Skills for Tribal Court judges plus Advance Skills for Tribal Court judges plus Appellate Skills for Tribal Court Judges or any one of same; or Other training standards are met that the tribe feels is sufficient EXAMPLE: To become a licensed attorney with this Tribe, an applicant must meet one of the following conditions: 4 years as a licensed Tribal Advocate, plus 80 hours of continuing legal training over the course of 4 years, plus working under the supervision of an attorney or judge for at least one year; or Graduation from any law school that confers a degree of juris doctor or L.L.B. or L.L.M.; or Proof of a current license to practice law in any jurisdiction in the United States; or A Bachelor s degree in Native American Studies, or Criminal Justice, or Pre-Law Studies, or other Tribally-approved course of study; plus passage of the Tribe s Bar Exam, plus at least 80 hours of training in Tribal Court Advocacy 12

13 Set Standards for Maintaining Licensure MCLEs Ethics training Ethics Code / PR Code compliance Fees to Tribal Court? Annual instead of lifetime? THANK YOU! 13