                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-23-1995

Vance v Lehman
Precedential or Non-Precedential:

Docket 94-1766




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             UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                      N0. 94-1766


                     RUSSELL L. VANCE

                           v.

JOSEPH LEHMAN, COMMISSIONER, DEPARTMENT OF CORRECTIONS;
   THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA;
      THE DISTRICT ATTORNEY FOR PHILADELPHIA COUNTY

                     Russell Vance,
                        Appellant



    On Appeal From the United States District Court
       For the Eastern District of Pennsylvania
          (D.C. Civil Action No. 94-cv-00997)


    Submitted Pursuant to Third Circuit LAR 34.1(a)
                   February 13, 1995

BEFORE:   STAPLETON, GREENBERG and COWEN, Circuit Judges

            (Opinion Filed August 23, 1995)


                    Daniel M. Preminger
                    Suite 1050
                    42 South 15th Street
                    Robinson Building
                    Philadelphia, PA 19102
                      Attorney for Appellant

                    Deborah Fleisher
                    Assistant District Attorney
                    Donna G. Zucker
                    Chief, Federal Litigation
                    Ronald Eisenberg
                    Deputy District Attorney
                    Arnold H. Gordon
                    First Assistant District Attorney
                    Lynne Abraham
                    District Attorney


                           1
                          1421 Arch Street
                          Philadelphia, PA 19102-1582
                            Attorneys for Appellees



                       OPINION OF THE COURT




STAPLETON, Circuit Judge:


            Petitioner-appellant Vance was convicted of murder in

the Philadelphia Court of Common Pleas.   In this habeas corpus

proceeding, he collaterally attacks the validity of his

conviction on the ground that he did not receive the "Assistance

of Counsel for his defence" as mandated by the Sixth Amendment.

The license of Vance's lawyer to practice law in Pennsylvania was

"revoked" shortly after the conclusion of his representation of

Vance because he had made material misrepresentations of fact on

his application for admission to the Pennsylvania Bar.    The

district court declined to grant relief, and for the reasons that

follow, we will affirm.



                                I.

          Russell Vance was charged with the murder and

involuntary manslaughter of his landlord, as well as with robbery

and possession of an instrument of crime.     Vance engaged the

services of Lewis Small, Esquire, to represent him in connection

with these charges.   Small turned the matter over to an associate

in his office, Richard Potack, Esquire, who was ultimately

appointed by the court to represent Vance on April 15, 1985.


                                2
            After a two day suppression hearing and other pretrial

proceedings, a jury was selected in early February of 1986. After

opening arguments and the calling of the first witness, Vance

decided to enter a plea of guilty to the murder charge. The court

then conducted a three day degree of guilt hearing, found Vance

guilty of murder in the first degree, and sentenced him to life

imprisonment.

            Several days later, Vance filed a pro se motion to

withdraw his guilty plea, and subsequently, he submitted an

amended motion alleging ineffective assistance of counsel.         A new

attorney was appointed to represent Vance, and the court held an

evidentiary hearing.    Ultimately, it vacated Vance's sentence and

granted his motion to withdraw his plea.      The Commonwealth

appealed.    The Pennsylvania Superior Court reversed and

reinstated the judgment of sentence, Commonwealth v. Vance, 546

A.2d 632 (Pa. Super. Ct. 1988).       Vance filed a Petition for

Allowance of Appeal to the Supreme Court which was denied.

Commonwealth v. Vance, 557 A.2d 723 (Pa. 1989).      After an

unsuccessful post-conviction relief proceeding in the state

courts, Vance filed this federal habeas proceeding.

             The record reveals a number of facts about Vance's

counsel of which Vance and the trial judge were unaware at the

time of trial.     Potack graduated from Howard University School of

Law in May of 1975 and passed the California Bar Examination that

summer.     He was admitted to the California Bar in December of

1975 and practiced law in that state for the next eight years.

His practice included criminal defense representations.


                                  3
          Potack began using cocaine regularly in 1980.    Between

mid-1981 and the fall of 1983, former clients filed at least ten

complaints against him with the California disciplinary

authorities.   In November of 1983, while these matters were under

investigation, Potack voluntarily ceased practicing law in

California, and in December, moved to Philadelphia.

          Potack successfully took the Pennsylvania Bar

examination in February of 1984 and was admitted to that bar in

May.   On his application for permission to take the bar

examination, he falsely represented that no charges for

professional misconduct were presently pending against him, that

no such charges had been filed in the past, and that he had not

undergone treatment for the use of drugs.   In addition, he

represented that he had not been arrested or prosecuted for any

crime when he knew there were outstanding warrants for his arrest

for passing worthless checks in California.

          Two weeks after he began his representation of Vance,

Potack entered a stipulation with the California disciplinary

authorities regarding the professional misconduct complaints

against him.   He stipulated that while he was an attorney, he had

(1) withdrawn from employment without refunding unearned fees

paid in advance in four cases; (2) represented clients with

conflicting interest without obtaining the consent of all

concerned parties; (3) failed to use reasonable diligence and his

best judgment for the purpose for which he was employed in four

cases; and (4) failed to deposit funds received on behalf of a

client in a separate, identifiable bank account.   On June 21,


                                4
1985, the disciplinary authorities recommended to the California

Supreme Court that Potack be suspended from the practice of law

for three years, that the suspension be stayed, and that he be

placed on probation on the conditions that he serve a one year

suspension, make restitution, pass the professional

responsibility examination, and participate in a drug

rehabilitation program.   The record does not disclose the date

upon which Potack's suspension in California commenced.

          On January 13, 1986, approximately three weeks before

the jury was selected for Vance's trial, the Pennsylvania State

Board of Law Examiners petitioned the Pennsylvania Supreme Court

to revoke Potack's admission to the bar.   The Board's petition

alleged that if it had known of Potack's failure to truthfully

answer questions inquiring into professional and criminal

misconduct and narcotics abuse, it would not have given him

permission to sit for the Pennsylvania Bar Exam and would have

found that he did not meet the Board's character standards to

practice law.   The Supreme Court of Pennsylvania granted the

Board's "Petition to Revoke Admission to the Bar" on April 16,

1986.

          When Vance's trial judge vacated his sentence and

permitted him to withdraw his guilty plea, she acted in part

based on her view that the April 16, 1986 order of the

Pennsylvania Supreme Court had the "effect of making [Potack's]

membership in the Pennsylvania Bar void ab initio."     App. 44D.

Citing People v. Washington, 384 N.Y.S.2d 691 (N.Y. Sup. Ct.
1976), for the proposition that the term "counsel" in the Sixth


                                5
Amendment referred to "a duly licensed lawyer and nothing less,"

id. at 692, she held that Vance had not received the

constitutionally required assistance of counsel for his defense.

App. 44D, 52D.

          The Superior Court took a different view of the

predicate state law issue.   It rejected the view that Potack's

membership in the Pennsylvania Bar had been void ab initio.

Commonwealth v. Vance, 546 A.2d at 636.      Accordingly, it held

that "[a]t the time Mr. Potack represented [Vance], he was a

member of the Pennsylvania Bar" and authorized by Pennsylvania

law to conduct Vance's defense.       Id. at 635.



                               II.

          Vance's federal habeas corpus petition does not seek

relief on the ground that Potack did or failed to do something

during his representation of Vance that breached his professional

responsibilities in a way that prejudiced the defense of the

case.   Vance's brief before us tacitly recognizes that the record

will not support a contention that he is entitled to a new trial

under the standard announced in Strickland v. Washington, 466
U.S. 668 (1984); the record does not affirmatively show that

counsel's performance was deficient and that this deficient

performance prejudiced the defense.      Rather, Vance presses the

theory accepted by the Court of Common Pleas:       the representation

by Potack was a per se violation of the Sixth Amendment without

regard to the quality of his performance.




                                  6
            We begin our analysis of Vance's contentions with the

basic principles underlying right to counsel jurisprudence.
          The right to the effective assistance of
          counsel is . . . the right of the accused to
          require the prosecution's case to survive the
          crucible of meaningful adversarial testing.
          When a true adversarial criminal trial has
          been conducted -- even if defense counsel may
          have made demonstrable errors -- the kind of
          testing envisioned by the Sixth Amendment has
          occurred.


United States v. Cronic, 466 U.S. 648, 656 (1984) (footnote

omitted).    Accordingly, "[a]bsent some effect of challenged

conduct on the reliability of the trial process, the Sixth

Amendment guarantee is generally not implicated."   Id. at 658.
Nevertheless, as Vance stresses, there are "circumstances that

are so likely to prejudice the accused that the cost of

litigating their effect in a particular case is unjustified." Id.

            The circumstances in which prejudice has been found so

likely as to be presumed are very rare.    The Court in Cronic set

forth a few examples that illustrate the degree of risk of

prejudice that must be present before its demonstration is

excused.    If the defendant has no representation of any kind, his

conviction is per se invalid.   Id. at 659.   The same is true if,

for any reason, the defendant's counsel is prevented from

assisting him during a critical stage of the proceeding.     Id.

"Similarly, if counsel entirely fails to subject the

prosecution's case to meaningful adversarial testing [by

foregoing cross-examination of the prosecutor's witnesses], then

there has been a denial of the Sixth Amendment rights that makes



                                 7
the adversary process itself presumptively unreliable."   Id.

(citing Davis v. Alaska, 415 U.S. 308 (1974)).

          Another situation which would warrant the application

of a per se rule finding a violation of the Sixth Amendment is

where the defendant is represented by someone with little or no

legal training who is masquerading as an attorney.   See Harrison

v. United States, 387 F.2d 203, 212 (D.C. Cir. 1967) ("layman

masquerading as a qualified attorney" cannot provide assistance

of counsel), rev'd on other grounds, 392 U.S. 219 (1968); People

v. Felder, 391 N.E.2d 1274, 1275 (N.Y. 1979) (assistance of

counsel denied where legal representative was not a member of the

bar and had not completed law school);    Cf. United States v.

Wilhelm, 570 F.2d 461, 465 (3d Cir. 1978) ("Counsel" within the

meaning of the Sixth Amendment contemplates one with professional

qualifications, not lay persons).   While Vance acknowledges that

there is a difference between such an imposter and one in

Potack's position, he insists that the likelihood of prejudice to

his case was sufficiently great to warrant the same result.

          The courts have consistently looked to the licensing

authorities of the legal profession to determine in circumstances

of this kind the boundaries of the per se exception to the
Strickland rule.   If a lawyer is authorized by those authorities

to practice law, his or her performance on a criminal defendant's

behalf is acceptable for Sixth Amendment purposes so long as the

Strickland criteria are not met.    See Reese v. Peters, 926 F.2d

668, 670 (7th Cir. 1991) ("The constitutional question is whether
the court has satisfied itself of the advocate's competence and


                                8
authorized him to practice law."); Bellamy v. Cogdell, 974 F.2d

302, 306-07 (2d Cir. 1992) (en banc) (per se rule only applied

where lawyer is not licensed or where there is conflict of

interest), cert. denied, 113 S. Ct. 1383 (1993).   See also United

States v. Stevens, 978 F.2d 565, 568 (10th Cir. 1992) (lawyer

disbarred from federal court but not from state court provides

assistance of counsel in federal trial); United States v.

Hoffman, 733 F.2d 596 (9th Cir.) (representation in federal court

by one suspended from practice by state bar not equivalent to

representation by one who has never been qualified to practice in

any jurisdiction), cert. denied, 469 U.S. 1039 (1984).   On the

other hand, with exceptions for licensing defects unrelated to a

person's competence to practice law,1 the courts have generally

viewed representation by someone not authorized to practice law

as a per se violation of the Sixth Amendment.   Reese, 926 F.2d

668; United States v. Novak, 903 F.2d 883 (2d Cir. 1990); United

States v. Mouzin, 785 F.2d 682, 697 (9th Cir.), cert. denied, 479

U.S. 985 (1986); Solina v. United States, 709 F.2d 160 (2d Cir.

1983); People v. Felder, 391 N.E.2d 1274 (N.Y. 1979); Huckelbury
v. State, 337 So.2d 400 (Fla. Dist. Ct. App. 1976).
1
  E.g., Reese v. Peters, 926 F.2d 668 (7th Cir. 1991)
(suspension for failure to pay bar dues); United States v.
Costanzo, 740 F.2d 251 (3d Cir. 1984) (failure to be admitted pro
hac vice), cert. denied, 472 U.S. 1017 (1985); Wilson v. People,
652 P.2d 595 (Colo. 1982) (representative met substantive
requirements but failed to take the formal oath for membership in
the bar), cert. denied, 459 U.S. 1218 (1983); Ex parte Engle, 418
S.W.2d 671 (Tex. Crim. App. 1967) (representation begun before
formal admission to bar took place). But see McKenzie v. Ellis,
287 F.2d 549, 551 (5th Cir. 1961) (representation by attorney who
failed to pay state bar dues and was therefore not authorized to
practice constituted violation of due process).


                                9
          In this case, Pennsylvania's intermediate appellate

court has held that under Pennsylvania law, Potack was authorized

to practice before the courts of that state at the time he

represented Vance.    Pennsylvania's highest court has declined to

review that decision and Vance has pointed to nothing suggesting

that that court would reach a different result were it to

consider the issue.   Under these circumstances, we accept the

holding of the Superior Court as the law of Pennsylvania.      See

West v. American Tel. & Tel. Co., 311 U.S. 223, 236-237 (1940).

          Vance acknowledges that Sixth Amendment jurisprudence

has traditionally looked to the licensing authorities of the

legal profession to set the boundaries of the per se violation

rule.   He insists, however, that Potack's state-conferred

authority should not control here for two reasons.     First, Vance

points to the allegation of the Board's petition that it would

not have recommended his admission to the Pennsylvania Bar had it

known that he had lied on his application.   Second, he asserts

that Potack was laboring under a conflict of interest during his

representation of Vance.    Neither of these arguments persuades us

that the risks of prejudice to Vance were sufficient to warrant

application of the per se rule.    Moreover, we believe that

application of the per se exception in circumstances of this kind

would impose an intolerable burden on trial courts and create an

intolerable degree of uncertainty about the finality of criminal

judgments.

          Potack was far from an untrained imposter.    He was a

graduate of an accredited law school, he had been certified by


                                  10
the California Bar authorities as competent to practice law in a

process untainted by misrepresentation, he had practiced law for

over a decade, and he had been tested and found knowledgeable

about Pennsylvania practice and procedure.    The only thing that

distinguished him from the majority of attorneys who represent

defendants day in and day out in our criminal justice system was

that he had been guilty of prior, but unrelated, breaches of his

professional responsibility.

          As Vance stresses, during the representation, Potack

had stipulated to having breached his professional responsibility

to several former California clients and stood accused of having

lied on his Pennsylvania Bar Exam application.    These were

serious breaches of professional ethics.     They cannot be, and

have not been, condoned.   At the same time, experience has taught

that lawyers, like other human beings, occasionally fall from

grace.   This is an unfortunate fact of life and is, of course,

one of the principal reasons why the legal profession has

disciplinary systems.   Our courts have traditionally relied upon

these systems to adjudicate and evaluate alleged professional

defalcations.   As a result, where breaches of professional

responsibility are unrelated to the representation of the

defendant, courts have not regarded the imposition of sanctions

as relevant to the adequacy of an attorney's representation and

have not given disbarment orders retroactive effect for Sixth

Amendment purposes.   United States v. Mouzin, 785 F.2d 682, 698

(9th Cir.), cert. denied, 479 U.S. 985 (1986).     In those

instances where lawyers have been sanctioned or disbarred for


                                11
conduct predating but unrelated to a criminal representation, the

risk to the defendant has not been considered sufficient to

warrant application of the per se rule.   Waterhouse v. Rodriguez,

848 F.2d 375, 383 (2d Cir. 1988) (disbarment of defendant's

counsel during pretrial suppression hearing did not result in

denial of defendant's Sixth Amendment right to effective

assistance of counsel where attorney was member of bar when

hearing began and ceased representation immediately after

learning of disbarment); Mouzin, 785 F.2d at 698 (disbarment from

court of appeals for conduct unrelated to ongoing representation

in district court does not render such representation

ineffective); Roach v. Martin, 757 F.2d 1463, 1479-80 (4th Cir.),

cert. denied, 474 U.S. 865 (1985) (state bar authorities'

investigation of lead counsel during trial did not warrant

presumption of prejudice); Hoffman, 733 F.2d at 602 (attorney's

suspension from practice by his home state bar during federal

district court trial not cause for per se finding of

ineffectiveness); United States v. Sielaff, 542 F.2d 377, 380

(7th Cir. 1976) (subsequent disbarment of petitioner's counsel

"was irrelevant to his performance at petitioner's trial");

Hernandez v. Wainwright, 634 F. Supp. 241, 246 (S.D. Fla. 1986)
(trial counsel's disbarment five years after defendant's

conviction was not sufficient to find that counsel had rendered

ineffective assistance at trial absent showing of direct nexus

with prejudice at trial), aff'd, 813 F.2d 409 (11th Cir. 1987).

          If courts were to accept the rule for which Vance

contends, trial judges would no longer be able to rely on the


                               12
existence of de jure authority to practice law.    Their only

recourse would be to conduct an in-depth inquiry into the moral

character of defense counsel in each and every case.    Given the

difficulty of marshalling the relevant information, even then,

they would have little assurance that the particular criminal

case before them could be tried to an unimpeachable judgment.

            We find this case readily distinguishable from United

States v. Novak, 903 F.2d 883 (2d Cir. 1990), upon which Vance

principally relies.    In Novak, the defendant had been represented

by a person who had fraudulently gained admission to the New York

Bar by applying for an exemption from the bar exam requirement

which was intended for those whose legal studies were interrupted

by military service and for which he was ineligible.    The court

found a per se Sixth Amendment violation.    Because defense

counsel had never been validly licensed to practice in any state

and, thus, "[h]is competence to practice law had never been

tested," the court found the situation there to be like that of

an imposter.    Novak, 903 F.2d at 890.   In this case, Potack had

been admitted to practice in California and had demonstrated his

mastery of Pennsylvania law and practice.    While he had

previously engaged in professional misconduct unrelated to

Vance's case, that does not cause us to question what seems

readily apparent from a review of the record -- Potack exposed

the government's case to "the crucible of meaningful adversarial

testing."   Cronic, 466 U.S. at 656.
            Nor does Vance's allegation of a conflict of interest

undermine our confidence in the integrity of the proceedings


                                 13
before the Court of Common Pleas.     Vance suggests that Potack's

self-interest conflicted with Vance's interest in mounting a

vigorous and aggressive defense.      His theory is that Potack may

have refrained from conducting such a defense for fear of

prompting an investigation into his (Potack's) background.

            Vance is correct in pointing out that some conflicts of

interest have been found to justify invocation of the per se

violation rule.   "Prejudice is presumed," however, "only if the

defendant demonstrates that counsel 'actively represented

conflicting interests' and that 'an actual conflict of interest

adversely affected his lawyer's performance.'"      Strickland, 466

U.S. at 692 (quoting Cuyler v. Sullivan, 446 U.S. 335, 348, 350

(1980)) (emphasis supplied).    More specifically, the defendant

must identify something that counsel chose to do or not do, as to

which he had conflicting duties, and must show that the course

taken was influenced by that conflict.     See Burger v. Kemp, 483

U.S. 776 (1987); United States v. Gambino, 788 F.2d 938 (3d

Cir.), cert. denied, 479 U.S. 825 (1986).      If the defendant

carries this burden, the requisite degree of risk of prejudice is

established and the defendant does not have to demonstrate that

the result of his trial would have been different absent the

conflict.   Strickland, 466 U.S. at 692 (citing Cuyler v.
Sullivan, 446 U.S. at 349-50).

            In the cases relied upon by Vance, Novak and Solina,

counsel was not properly licensed to practice law.     Accordingly,

the representation of the defendant was itself a crime -- i.e.,

the unauthorized practice of law.     In these circumstances, a


                                 14
vigorous and successful defense of the client might well

influence the exercise of the prosecutor's discretion in the

future should the absence of a license subsequently come to

light.   Novak, 903 F.2d at 890; Solina, 709 F.2d at 164.    While

we are not certain that the defendants in these cases satisfied

the criteria set forth by the Supreme Court in its conflicts of

interest jurisprudence, we can understand the concerns that led

these courts to the result reached.2

          Courts have reached a different result, however, where

a conflict of interest has been alleged involving an attorney who

was authorized to practice law, but was the subject of a

professional misconduct investigation.   In these circumstances,

the courts have been unwilling to find a per se violation based

on the theory that the defense of the criminal case would be

prejudiced by the attorney's desire not to alienate the

prosecutor or the court.   See Waterhouse, 848 F.2d at 383

(attorney had no reason to fear that vigorous defense would

expose him to unrelated charges of misappropriation of client

2
  This court had a similar concern in United States v. DeFalco,
644 F.2d 132 (3d Cir. 1979), which involved a similar, but more
egregious, conflict. There we applied the per se violation rule
in a case where the defendant's lawyer, while litigating the
defendant's appeal, had been indicted and pleaded guilty in the
same district court the defendant had been convicted in and had
negotiated a plea bargain for himself with the same United States
Attorney's Office that had tried the defendant's case. We were
concerned about the direct conflict between counsel's duty to
persuade the appellate court of error in the defendant's trial
proceedings and his self-interest in not alienating the
prosecutor with whom he was negotiating and the court by which he
would be sentenced. Our holding there was a narrow one,
expressly limited to these facts, and is not implicated here. Id.
at 136-37.


                                15
funds); Mouzin, 785 F.2d at 699 (attorney's disbarment from

appellate court, without more, does not place attorney into

adversarial position with defendant being tried in district

court); Roach, 757 F.2d at 1479-80 (conflict of interest should

not be presumed absent showing that investigation into attorney's

conduct by licensing authorities simultaneously with attorney's

representation of defendant impaired attorney's ability to defend

client); Hoffman, 733 F.2d at 602 (attorney's suspension from his

home state bar and his failure to inform federal district judge

did not place him "in an adversarial position relative to" the

defendant).    Where, as here, the professional misconduct charge

and the criminal defense are wholly unrelated, nothing done or

foregone in the criminal defense can effect the result in the

ethics proceedings and we perceive no actual conflict between the

lawyer and his client.   If anything, we believe a lawyer under

fire for past misconduct is likely to be highly motivated to give

the best professional representation possible.    Waterhouse, 848

F.2d at 383.

          In this case, Potack was authorized to practice law and

his representation of Vance was not a crime.    Accordingly, he had

no fear of subsequently being the subject of a judgment by

Pennsylvania's prosecuting authorities.    Moreover, the petition

to revoke Potack's license was filed well before Vance's trial

began and his plea was entered.    The facts concerning Potack's

past were thus already known to the Pennsylvania courts and

disciplinary authorities before these critical phases of the

proceeding.    Even with respect to the earlier part of the


                                  16
representation, however, we perceive no actual conflict.   We

believe a lawyer who wishes to minimize his chances of coming to

the attention of the disciplinary authorities has every reason to

render the best possible professional representation.



                               III.

          Vance's lawyer had previously violated his professional

responsibilities on a number of occasions.   Those violations were

unrelated to Vance's defense, however, and the record does not

suggest any similar defalcation here.   To the contrary, the

record indicates that Potack rendered a professionally competent

and vigorous performance.   While it is, of course, possible that

Potack did not live up to his professional responsibilities to

Vance in some way unreflected in the record, the potential for

prejudice to Vance under the circumstances of this case is not

sufficiently great to place this case in the same category with

the cases that have applied a per se rule.   The judgment of the

district court will be affirmed.




                                17
