Patterico's Pontifications

10/13/2008

Court’s Worst Nightmare

Filed under: Law — DRJ @ 2:59 pm



[Guest post by DRJ]

Gwen Bergman was convicted last May in Denver federal court on charges she tried to hire a hitman to kill her son’s father. Her family says they paid her attorney over $50,000 for her defense. Turns out her attorney wasn’t even an attorney:

“Kieffer, who maintains law offices in Santa Ana, Calif., and Duluth, Minn., told clients that he attended the Antioch School of Law in Washington, D.C., and that he was licensed to practice law.

In June, The Denver Post found that Kieffer did not attend law school, and he has since admitted to the courts that he does not have a law license.

Court records show Kieffer represented at least 16 clients in 10 federal jurisdictions over the past decade.”

This is the court system’s worst nightmare but, on the bright side, I think Gwen Bergman has a good shot at an appeal.

— DRJ

38 Responses to “Court’s Worst Nightmare”

  1. I could see if the attorney was court appointed, but why are there grounds for appeal if she hired him? Is it that the court is required to verify his credentials/ability to represent her in court?

    Otherwise I see a great way to avoid prison. Keep hiring uncredentialed legal help.

    Mike Johnson (a7da41)

  2. Suppose he’d gotten her acquitted. Could she be tried again?

    I assume not, but the argument would be that the original was a mis-trial and doesn’t count.

    Steven Den Beste (99cfa1)

  3. Okay, at risk of being banned, this just goes to show that “lawyering” ain’t that hard.

    In fact, law is the only profession that I can think of that has manufactured it’s own complex reality. Engineers build things that follow the natural laws of physics. Doctors use the natural laws of life to find cures and to heal people. Lawyers, however, create and interpret the laws that control their universe. I know most other professionals: doctors, engineers, chemists, military officers etc. would LOVE to be in that position.

    JFH (c87afd)

  4. However he does appear to have more experience than a certain senator currently running for president.

    Old Coot (b63ab3)

  5. However he does appear to have more experience than a certain senator currently running for president.

    Comment by Old Coot
    thats cold

    Joe - Dallas (d7c430)

  6. Perhaps he’d be interested in defending this guy.

    Old Coot (b63ab3)

  7. The Court’s “WORST” nightmare is that this guy did better than most law school grad/admitted-to-the- bar attorneys and carried off his ruse before those “ever-so-smart” and so-thoroughly-vetted federal judges, who, in the end, couldn’t tell the friggin’ difference!

    What an embarrassment! To the Bench that is!

    Earl T (15b5d1)

  8. I don’t know if the fact that the “lawyer” never even attended law school let alone was never a properly admitted member of any bar violates the Sixth Amendment in each and every case, but I can’t think of a better argument that the defendant was prejudiced by an unfair trial. It’s kind of ironic that this fake lawyer probably was more skilled and knowledgeable at criminal defense work than most recent law school graduates with fresh law licenses so that the trial might not in fact have been objectively unfair, but I think an appeals court will give the defendant the benefit of the doubt here in large part to protect another interest besides that of the people vs. the defendant: the integrity of the court system.

    It’s hard to put the blame for this on anyone but the fake lawyer. If you walk into an established law office and some guy represents he is a law school graduate and member of one or more bars, and can point to ten years of practicing law, who is really going to question or check up on that seeing as most non-lawyers wouldn’t really know where to start?

    And you really can’t blame the courts. It is very common for lawyers to get admitted pro hac vice. That means, if you are say admitted to practice in the State of NY only, you can ask a court to let you handle a case, and just that case, in another jurisdiction such as TX. When I was practicing civil litigation, I had probably twice as many cases in other jurisdictions than in the jurisdictions (two states and about six Federal courts) where I was actually member of the bar. All that usually takes is a boiler-plate motion supported by affidavit by the lawyer that they are qualified; I don’t recall ever having to provide supporting documents like law school transcripts or State bar certification for any of my pro hac motions. It would also be extremely burdensome for the courts to have to conduct an investigation every time this is done, as they are common and routine.

    This type of thing is so rare that it probably doesn’t make sense to change the current system. As DRJ says, this is a court’s worst nightmare, but fortunately not a common one.

    Aplomb (b6fba6)

  9. This is clearly the fault of the Bu$Hitler/McCain/Rethuglikkkan scheme of deregulation.

    JD (f7900a)

  10. I wonder if he’ll represent himself in the impending trail for fraud…

    Scott Jacobs (d3a6ec)

  11. What’s his record with those 16 clients?

    Arthur (7d1b26)

  12.      Aplomb, in Comment # 8 opines that it would be extremely burdensome for the court’s to investigate every time someone becomes of record as counsel in a case. I disagree.
         Most, if not all, state bars (or whatever they are called in any particular state) have the names of admitted members available on the Internet. Of course, someone using the name of a real lawyer would pose a more difficult problem.
          However, think of the problems faced by voter registration checkers receiving hundreds and thousands of last minute voter registration packets from the ACORN guys.

    Ira (28a423)

  13. I think Gwen Bergman has a good shot at an appeal.

    Ok, that’s the understatement of the day.

    And, BTW, for Sixth Amendment ineffective assistance of counsel, the standard for retained and appointed attorneys is the same.

    nk (f2ee58)

  14. Just goes to show that the bar’s monopoly on non-self representation should be abandoned.

    Soronel Haetir (644722)

  15. The real shame is that practicing law without a license is a misdemeanor or petty offense. But I wonder whether there could not be a mail/wire fraud case.

    nk (f2ee58)

  16. #14,

    You have an almost absolute right to represent yourself. Just as you have an almost absolute right to remove your own appendix. I do not recommend either.

    nk (f2ee58)

  17. Comments are turned back on. I left the screen for this post up while I did some other things and I think I accidentally turned off comments when I closed the screen. Sorry about that …

    DRJ (c953ab)

  18. A likely story!

    You’re just all touchy about this subject… :)

    Scott Jacobs (d3a6ec)

  19. I think I’ve seen other stories about this guy?

    SPQR (26be8b)

  20. Was he an effective counsel?

    JD (f7900a)

  21. My question goes to process:
    Why isn’t there a quick, reliable method of checking atty ID’s?
    A proper photo ID issued by each State’s BAR, mag-stripe on the back for swiping, centralized data-base for checking.
    If we can do “Insta-Check” for gun-purchases, you would think we could check the validity of lawyer ID’s?
    Both entail a risk to life and limb (or freedom).

    Another Drew (1d7115)

  22. Are there any states where you can not go to law school, pass the Bar, and be allowed to practice?

    Fritz (9cc64f)

  23. I am truly interested to find out if he did a good job representing her. Apparently, he did at the very least, a passable job, as the opposing counsel and Judge did not catch on. The other thing that I am curious about is if his lack of a law degree shows de facto ineffectiveness of counsel. Does simply not having a law degree make that argument for her? That would also lead me to question when she found out, and if that played any role in her allowing this to proceed, knowing it could result in an appeal should she lose.

    JD (f7900a)

  24. Fritz,

    I asked this before… There’s like two that don’t require graduation from Law School, which I think is BS.

    If you can pass the state bar WITHOUT lawschool, you’re obviously pretty freaking smart…

    Scott Jacobs (d3a6ec)

  25. Anyone remember a Judge Clark, advisor to RR.
    Took the BAR after reading the relevant texts, ended up on the CA Supreme Court IIRC, went to DC with RR, and returned to CA during the 1st term to his family ranch.

    Another Drew (1d7115)

  26. I believe that Cali is one of those states where you just need to pass the BAR…

    Scott Jacobs (d3a6ec)

  27. Fritz #22,

    I looked at your questions last year and found this ABA chart that shows what each state requires for admission to practice law. The state rules vary tremendously. For instance, only 7 states allow attorneys to take the bar exam after studying in a law office: California, Maine, New York, Vermont, Virginia, Washington, and Wyoming.

    DRJ (c953ab)

  28. As for this case, thankfully this situation doesn’t come up much but my guess is this would be per se ineffective assistance of counsel no matter how well he did.

    DRJ (c953ab)

  29. per se – de facto. I guess that is why I am not a lawyer 😉

    Why wouldn’t his actual effectiveness as counsel be an issue?

    JD (f7900a)

  30. JD,

    In my opinion, bar licensing exists to protect the profession and the public. It protects attorneys by preventing unlicensed people from practicing law, but it also protects the public by setting a minimum education and standard that a lawyer has to meet to practice law. Unlicensed legal advocates might meet those standards but they probably wouldn’t, and the last thing you need when you have legal trouble is to have more legal trouble because your advocate wasn’t competent.

    It’s also administratively easier and inspires greater confidence if we have a rule that (1). Lawyers have to be licensed and (2), If they aren’t, they can’t provide adequate representation no matter how adequate they really were. I wouldn’t be confident in a hospital that let a layman operate on me and then told me “So what?” because everything turned out fine (or, worse yet, if it didn’t). I’d have similar concerns about a court that said the same thing regarding my imposter attorney.

    DRJ (c953ab)

  31. Oh, I get that part, DRJ. I am just curious as to why in a claim of ineffectiveness of counsel, that the first legal hurdle would not be to actually have to show that he was ineffective.

    JD (f7900a)

  32. Because before you can be considered effective or ineffective, you have to be counsel. The lady was not represented by counsel and in the absence of a knowing waiver, on the record, she was deprived of her Sixth Amendment rights. Ineffectiveness is the last question. “Do you have an attorney?” is the first.

    nk (f2ee58)

  33. Is this the same Howard Kieffer?
    http://www.ocweekly.com/1997-09-25/columns/a-wylie-strategy/

    Ken Hahn (6b4ba8)

  34. LMHO! Now this IS the funniest news of the year. That chap should be given an award. A movie about him should be done. I would nominate Richard Gere to play him in the movie. The movie should called “The True Liar.” or “Liar Lawyer!” LOL!

    love2008 (1b037c)

  35. DRJ, why “on the bright side”? Because she was convicted or because of supposedly ineffective counsel? Unless you think the facts of the case didn’t support her guilt, the way you worded it is unclear.

    I’m one who thinks the real appeal issue should be “effectiveness”, not licensure.

    49erDweet (d336eb)

  36. “It would also be extremely burdensome for the courts to have to conduct an investigation every time this is done, as they are common and routine.”

    The investigation (by courts and the lawyers vouching for him) would require only a five minute phone call or internet search to a bar association to see if he is licensed. This does seem too bad considering the millions Kieffer made, the widows homes he stole, the retirements he wiped out and the lives he ruined.

    Of course in the 20 districts and 4 appeals courts where he was admitted they didn’t even ask wha state he was licensed in. If they had they would have found he was only a high school graduate.

    What’s really bad is that this four time felon was figured out by US Attorney William Siller and the 9th Circuit in 2006. What did they do? Sent him on his way to do more fleecing.

    Why can’t any of these 20 districts and circuit courts even file charges?

    Bill (f31563)

  37. Is this the same Howard Kieffer?
    http://www.ocweekly.com/1997-09-25/columns/a-wylie-strategy/

    Yes Ken that is the same guy. Isn’t it something that he went on so long? Especially since the US Attorney and courts had him solved for sure in 2006 and just let him keep fleecing families and ruining lives.

    No he wasn’t any good and he didn’t have any sucess for clients. Just picked a lot of cash and a few widow’s homes along the way.

    Joe (f31563)

  38. 49erDweet,

    The whole thing is a nightmare but this gives the defendant the possibility of a new trial. That’s what I meant by the bright side.

    Further, I agree with you that the issue is effectiveness of counsel, but I think courts would hold that an unlicensed person acting as an attorney is per se ineffective.

    DRJ (cb68f2)


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