: Without fear of successful contradiction it may be stated that no practitioner in the Florida Bar upon hiring a newly graduated lawyer would send him to court alone to try a criminal or personal injury case. The same is true, a fortiori, of the y law student. The men who are responsible under the proposed rule for his activity are themselves responsible members of the Bar. They include the faculties of accredited law schools, duly elected public defenders and conscientious trial and appellate judges. It may be even asserted that these men are more concerned with these problems than are the general members of the Bar since they individually and collectively are much closer to the problem of law student participation than is the rank and file member of the Bar who has only an indirect respon sibility in this area. The practice of the Public Defender for Pinellas County has been to supervise for a period of some mont those assistants coming to him who are already members of the B before he is willing to allow them to try a case alone. That h would force upon law students greater responsibility in this regard than he demands of his licensed assistants is, of course inconceivable. A completely literal interpretation of the term "general supervision" as used in the proposed rule technically would allow a third year law student to try a capital case with the physical presence of the Public Defender or other duly lice practitioner provided he did so with the permission of the law school faculty, the Public Defender himself, and the trial judg It is not for such widespread authority that we contend. There -11 is a wide discretion granted under the rule to the controlling bodies of the law school, public defender office, and trial courts of the state of Florida. This wideness of discretion, however, carries its own checks and balances so that under no circumstances, as a practical matter, would a law student ever find himself in the previously hypothesized situation. That the rule theoretically could be abused is no reason to deny it. By way of analogy there can conceivably be instances in which a trial judge or appellate judge may abuse the power of his office. That he will do so is not presumed nor is the fact that he possibly could abuse his power a reason to deny him any power at all. There are, however, many functions which the embryo lawyer can perform and perform efficiently with a minimum of supervision: (1) He may argue motions under the general supervision of the Public Defender, trial judge, and law school faculty. (2) He may make some nonjury arguments with clearance the law school faculty, Public Defender, and trial judge. (3) He may prepare briefs and make oral arguments in certain appellate matters under the general supervision of the law school faculty, Public Defender and appellate court. (4) He may make appearances in the Justice of Peace courts for purposes of determining probable cause under the general supervision of the law school faculty, Public Defender and Justice of the Peace. (5) He may interview the indigent defendant in jail under general supervision of the law school faculty and Public fender. -12 (6) He may conduct investigations and interview witnesses. (7) As will be further noted in problem VI infra, it is even conceivable that schools - - as is done at Harvard and some other he may represent the defendant in some minor misdemeanor cases while under the general supervision of the law school faculty, Public Defender and trial judge. We should not confuse the "unauthorized practice of law" problems with this problem of law student participation for training purposes. These students are students who are to become full fledged members of the Bar within weeks - they are not real estate brokers and insurance salesmen who are devoid of any training in the law and not disciplined by the Bar or the courts. VI THE RULE WOULD BE A VIOLATION OF THE PRINCIPLE LAID DOWN IN This is perhaps the most difficult problem presented by the proposed rule but certainly not an insurmountable one. The sixth amendment of the Federal Constitution provides: "In all criminal prosecutions, the accused shall have the right to have the assistance of counsel for his defense." Since 1938 this had been construed to mean that in federal courts counsel must be provided for defendants unable to employ counsel unless the right is competently and intelligently waived The United States Supreme Court had also held in the case of -13 Betts v. Brady, 316 U.S. 455, 62 S. Ct. 1252, 86 L.Ed. 1595 that a provision of the Bill of Rights which is fundamental and essential to a fair trial is made obligatory on the states by the fourteenth amendment. The landmark case of Gideon v. Wainright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) established the proposition that the provision for counsel in the sixth amendment was a fundamental right which was essential to a fair trial and that it was therefore binding on the states by the fourteenth amendment. The problem presented by the proposed rule is whether or est student participation in a case coming within the purview of the Gideon rule would qualify as counsel so as to meet the requirements of the rule. We may consider at least six possible answers to this particular objection to the rule. (1) Who is counsel within particular jurisdiction is to be determined by the authorities and rule-making bodies of that particular jurisdiction and is not to be dictated on a federal level. The Supreme Court of the United States would not be anxious to get into any odious comparisons as between the various states for their requirements concerning admission to the Bar. To put it shortly, counsel in a particular jurisaction, and with particular reference to Florida, is who the Supreme Court says is counsel. If the Supreme Court of this state deems that senior law students meeting the necessary requirements and coming within the necessary limitations can be counsel for limited purposes then they should be considered counsel for purposes of the Gideon rule. (2) As a practical matter no case would be assigned to any law student. All cases would be assigned to the Public Defender who is attorney of record for the indigent defendant. The law student, while assisting him in the preparation and conduct of the case, would be at all times in an agency relationship and subject to his supervision. This could be construed to mean that counsel for the indigent defendant is at all times the Public Defender and that responsibility for the conduct of the case must necessarily fall upon him and therefore the defendant has had "counsel." (3) The Gideon rule as yet does not apply to misdemeano nor is it at all certain that it applies at all stages of the criminal process. For example, the Gideon rule may not in al cases extend as far back as the preliminary hearing. This means that if the jurisdiction of the Public Defender should be enlarged to encompass misdemeanors or if he should find th facilities to extend his services to indigent clients at the preliminary hearing level there would be vast areas in which the law student could work without the problem of the Gideon rule. Common practice in the state of Florida places the law enforcement officer in the position of not only investigator but prosecutor in that in the absence of the state or county -15 |