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What if your lawyer isn't really a lawyer?

Bruce GottliebPosted Wednesday, July 15, 1998, at 5:11 PM ET

Wednesday's New York Times reports that a con man with no legal degree served as a lawyer for perhaps 100 defendants. This is said to be good news for convicted defendants and bad news for prosecutors. At first glance, this seems backwards. Would you be happy to hear that your cardiac surgeon is a fraud?

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The reason convicted defendants are happy is because this news entitles them to retrials. The constitution guarantees accused criminals a defense conducted by a licensed attorney. Because in this instance their counsel was not really an attorney, convicted defendants can demand a new trial (with an authentic attorney, of course). Though the law is not clear on the subject, in all likelihood defendants need not even show that their ersatz attorney was incompetent. (Initial reports suggest that, in fact, he was quite competent.) It is enough to show that he was not licensed. For example, defendants represented by disbarred attorneys have been awarded retrials without proving that their defense was inadequate.

What's so great about a retrial? It is true that, in principle, a retrial can still result in a conviction. But if prosecution witnesses have died or forgotten things, then their testimony won't be used in the retrial. Even transcripts from the previous trial won't be used in the retrial, since they were admitted when the defendant had inadequate counsel.

Explainer thanks Professor Geoffrey Hazard of the University of Pennsylvania Law School.