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special to the national law journal What happens when your lawyer gets disbarred three weeks before your trial and, without letting you know about this development, goes on to defend you anyway? In Florida, at least, you get a new trial. Florida’s 1st District Court of Appeal has affirmed a trial court’s decision to vacate Jean Joubert’s second-degree murder conviction, holding that since his trial attorney was granted a disciplinary resignation-effectively the same as a disbarment-three weeks before Joubert’s trial, Joubert’s Sixth Amendment right to counsel was violated. State v. Joubert, No. 3D02-1166 (Fla. Dist. Ct. App. 2003). Joubert’s trial attorney, Steven Scott, was accused of misappropriating funds and agreed to a disciplinary resignation from the bar. In an order that noted, “disciplinary resignation is tantamount to disbarment,” the Florida Supreme Court accepted Scott’s resignation, effective on May 24, 2001. Joubert’s trial took place about three weeks later, from June 12 to June 15, with Scott as trial counsel, despite his disbarment and affidavit to the Florida Supreme Court promising he would cease all representations. Joubert was convicted and sentenced to life imprisonment. Moves to vacate He moved to vacate the conviction, arguing that since Scott was not licensed at the time of Joubert’s trial, he was denied effective assistance of counsel. The trial court agreed and vacated the conviction. The state appealed, arguing that, under the U.S. Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668 (1984), Joubert had to show he was prejudiced by Scott’s disbarment. Joubert disagreed. “The primary threshold question is: was there counsel?” said Miami solo practitioner Kenneth Speiller, Joubert’s appellate counsel. “In this case, there wasn’t. Scott wasn’t licensed.” Florida Assistant Attorney General Frank Ingrassia, who argued the case for the state, saw it differently. “Once you have a license, you’re counsel,” Ingrassia said. “If the discipline is unrelated to the case, a Strickland analysis applies, and the defendant must show prejudice.” Ingrassia said that the state is seeking a rehearing. It has also asked the court to certify the case as one of great public importance because there is no case directly on point. “The state’s argument makes no sense,” said Speiller. “Under that argument, some guy off the street could go to a law library for a few weeks, represent a murder defendant at trial and it would be okay.” The appellate court agreed that Joubert’s right to counsel was violated, distinguishing Joubert from other cases applying a Strickland analysis. In some cases, counsel had been only temporarily suspended for failure to pay dues. In other cases, counsel was actually licensed on days germane to the case.

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