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Diploid
Cuban



Registered: 01/09/03
Posts: 19,274
Loc: Rabbit Hole
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Re: Ask a defense attorney [Re: Diploid]
#16741083 - 08/27/12 12:53 AM (11 years, 8 months ago) |
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So, is it legal for me to lie to the police? Say they ask me my name, and I give it as required by law, then they command me to produce ID.
If I'm walking legally on a sidewalk not driving a car, do I have to produce ID if I have it when commanded to by the police? Can I refuse? Can I just keep quiet and refuse? Is my best option after giving my name to tell them I refuse to speak to them further without an attorney.
One more question. How does "false arrest" work. If I'm arrested without cause, say by a pissed off cop doing his alpha wolf dance, do I have recourse? Is there any consequence for the police?
-------------------- Republican Values: 1) You can't get married to your spouse who is the same sex as you. 2) You can't have an abortion no matter how much you don't want a child. 3) You can't have a certain plant in your possession or you'll get locked up with a rapist and a murderer. 4) We need a smaller, less-intrusive government.
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sonamdrukpa
Wayfarer


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Re: Ask a defense attorney [Re: Enlil]
#16741430 - 08/27/12 03:42 AM (11 years, 8 months ago) |
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Quote:
Enlil said: I can't tell you the chances of getting caught...that'd take a crystal ball. If you have weed in your room, you're going to get convicted...whether you take the fall of all of the stuff in the house is anyone's guess...that's going to depend on many different things.
So say you've got a bust of a married couple's house, the cops find weed in the bedroom, but the couple claim that it was the husband's personal stash and that the wife never even knew about it. If the DA doesn't have anything to contradict that notion, would you expect the charges against the wife to be dropped? And generally in those sorts of situations would it be possible to get the charges against the wife dropped or reduced in exchange for a guilty plea from the husband?
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Enlil
OTD God-King




Registered: 08/16/03
Posts: 67,521
Loc: Uncanny Valley
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Re: Ask a defense attorney [Re: Diploid]
#16741661 - 08/27/12 05:52 AM (11 years, 8 months ago) |
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Quote:
Diploid said: So, is it legal for me to lie to the police?
Every state has some law against lying to the police, but the details are different depending on the state. Most such laws say that it's illegal to knowingly make a false statement with the police with the intent of hindering a prosecution of a crime. Under this type of law, an insignificant lie is going to be hard to prosecute.
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Say they ask me my name, and I give it as required by law, then they command me to produce ID.
That depends on the state law. If the law requires you to produce ID if you have it, then you probably have to do so. The SCOTUS has never, to my knowledge, reviewed that issue. It would probably be considered constitutional to require you to produce any state issued ID you possess because the ID is the property of the state. Having said that, it is unlikely that a state could require one to have or carry ID.
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If I'm walking legally on a sidewalk not driving a car, do I have to produce ID if I have it when commanded to by the police? Can I refuse? Can I just keep quiet and refuse? Is my best option after giving my name to tell them I refuse to speak to them further without an attorney.
See above answer. Also, keep in mind that the 5th amendment protection against self-incrimination does not include a right not to produce physical evidence against oneself. It is a protection against forced testimony only.
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One more question. How does "false arrest" work. If I'm arrested without cause, say by a pissed off cop doing his alpha wolf dance, do I have recourse? Is there any consequence for the police?
The tort of "false arrest" is not often used against police. It is a tort generally brought against a civilian citizen.
Police officers have "qualified immunity" for their actions on duty. This means that they are immune to lawsuits for anything they do as long as it isn't clearly a violation of the law. Proving that something is not only a violation, but an obvious violation, is not very easy.
Police departments have "sovereign immunity" from lawsuits...this means that you can't sue them without their consent. Most states have some laws allowing the citizen to sue the police for certain actions, but they are limited circumstances.
Most lawsuits against police officers and departments are brought under 42 U.S.C. § 1983. These claims are nice because if you win, your lawyer gets paid "reasonable attorneys fees." That makes it much easier to find a lawyer to represent you in these claims. Also, they are federal claims, so they can be brought in federal court. This helps to cut down the personal bias a particular state judge might have for his local police.
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Enlil
OTD God-King




Registered: 08/16/03
Posts: 67,521
Loc: Uncanny Valley
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Quote:
bushrat said:
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Enlil said: There are dishonest people in every profession, but I am pretty proud to say that lawyers are generally among the most honest people you can find.
false.
You believe this because you're butthurt about some lawyer hurting your feelings. In reality, lawyers are held to a very high standard ethically. We can be disbarred or suspended for the slightest of infractions. In my home state, a lawyer can be disbarred for life for accidentally putting money in the wrong bank account.
You might be fired by mcdonalds if you pocketed $5 from the cash register...A lawyer would be unable to practice for the rest of his life.
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Enlil
OTD God-King




Registered: 08/16/03
Posts: 67,521
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Quote:
sonamdrukpa said: So say you've got a bust of a married couple's house, the cops find weed in the bedroom, but the couple claim that it was the husband's personal stash and that the wife never even knew about it. If the DA doesn't have anything to contradict that notion, would you expect the charges against the wife to be dropped? And generally in those sorts of situations would it be possible to get the charges against the wife dropped or reduced in exchange for a guilty plea from the husband?
That's generally exactly how it works out. Either the wife is given a deal to have charges dismissed in exchange for testimony against husband, or the husband is given an offer of dismissal for his wife in exchange for his guilty plea.
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thunderkitten
extraordinary machine


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Re: Ask a defense attorney [Re: Enlil]
#16741699 - 08/27/12 06:17 AM (11 years, 8 months ago) |
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I have a really left-field question that I hope you can shed some light on, it has nothing to do with criminal defense but at this point a person off the street could tell me more than I know and you're much more qualified.
My boyfriend has a totally insane mother, and by insane I mean she is homeless and has every intention to stay that way. Not only is she homeless but she has many medical issues that she refuses meds for, has violent tendencies, and has been known to go on a Jesus rampage and walk out into traffic. Right now we're just waiting for a call from the cops that she's hurt someone or is dead basically. This is torturing my boyfriend, he wants to do something about it. We live in the state of Kentucky BTW.
The people that were in charge of her fed him a big line about going down to the circuit clerk and filing guardian paperwork. Of course he nor I had any clue what that really meant and so he did it. Then we finally discovered that he (and also myself by association) would be 100% responsible for everything she does including housing her. We have three children in a three bedroom house, there's no way we can house her or be responsible for another human at all, especially a crazy adult human.
What we wanted was to start some paperwork that would adjudicate her and get her a state guardian, like how my state deals with most mentally retarded people. So my question(s) is:
Now that we started this guardianship paperwork, can we somehow switch it around to mean state guardian or should we just drop it?
and
If we have to just drop it, can we start another case to get her a state guardian?
I'm sorry if this sounds really stupid, like I said, I have no clue about any of this. We have a lot of documented proof of her crazy including doctors and 72 hour holds, even 2 week mental holds in an institution but they never keep her longer than 2 weeks. We also have family and professional types that have worked with her willing to help us out with testimony and such stuff.
Thank you so much in advance for anything you can add to this.
Edited by thunderkitten (08/27/12 06:19 AM)
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Enlil
OTD God-King




Registered: 08/16/03
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Loc: Uncanny Valley
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Look into civil commitment. It is a procedure by which a court orders that a person be confined in a hospital and treated. There are certain requirements that must be met in order to get a court order. Here is a link with some information about Kentucky civil commitment law:
http://www.treatmentadvocacycenter.org/index.php?option=com_content&view=article&id=213&Itemid=148
Whether the decision to have her committed is the right thing to do is another issue altogether. I certainly don't know the extent to which she is mentally ill, but choosing to take someone's freedom of autonomy from them should be a decision that is made only after careful consideration of all of the information and options.
As far as answering your specific question, it's unlikely that you can change your petition. That's going to depend on the specifics of KY law. I don't see a guardianship being the answer anyway at this point. If she is truly a danger to herself or others, she should be in a facility that can address her mental health problem and provide security for her.
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thunderkitten
extraordinary machine


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Re: Ask a defense attorney [Re: Enlil]
#16741848 - 08/27/12 07:41 AM (11 years, 8 months ago) |
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Enlil said: Look into civil commitment. It is a procedure by which a court orders that a person be confined in a hospital and treated. There are certain requirements that must be met in order to get a court order.
Is a civil commitment different then these "202" holds they're pulling on her left and right? Each month for six months she's been involuntarily committed into a state facility but they never keep her over 2 weeks and even while she is there they won't force meds on her if she refuses them claiming that they can't force meds on an individual that is their own guardian. She really needs to stay in a facility but they claim they can only fund 2 weeks monthly and so for another 2 weeks she's scrounging around the street, using her SS to get hotel rooms until people either steal her money or she gives it to them then she's 100% homeless for the remainder. This is when we get the most calls from police or family during the in-between time when she can't be re-committed for another few days. Thus the cycle begins again.
Quote:
Whether the decision to have her committed is the right thing to do is another issue altogether. I certainly don't know the extent to which she is mentally ill, but choosing to take someones freedom of autonomy from them should be a decision that is made only after careful consideration of all of the information and options.
My boyfriend's desire to strip her of her own guardianship comes after a lifetime of dealing with her when she refuses her meds. Just four years ago she was as sane as you or I until she decided to refuse all meds. From what I understand she would always do this from time to time even when my bf was a child forcing him and his sister into foster care situations until she decided to take her meds again. This time she hasn't "snapped out of it" and has systematically refused her meds for a number of years slowly deteriorating to the point she's at now. She never had a history of violence toward others or herself until the last 6 months, at this rate it's only a matter of time before she dies if nothing is done. She's 65 years old and all we want for her a better quality of life than she has now. If her autonomy must be stripped to provide that, so be it.
Quote:
As far as answering your specific question, it's unlikely that you can change your petition. That's going to depend on the specifics of KY law. I don't see a guardianship being the answer anyway at this point. If she is truly a danger to herself or others, she should be in a facility that can address her mental health problem and provide security for her.
We've been told by the police and by social workers that the only choice we have is assuming guardianship if we want to make sure she's taken care of. We don't have the resources to assume the guardianship ourselves. She's been on this merry-go-round of 2 weeks in/2 weeks out for so long that the police recently told us that the judge they get to sign the paperwork is considering not doing it anymore. I don't know how true that is because that is a death sentence in a time frame if he chooses not to. All the pressure is put on my boyfriend to do something about it with vague info and no help. We don't even qualify as middle class so it would be hard to even prove her need for a guardian right now without legal aid.
Thank you for the info you provided it is much more than I had, I'm just not 100% on whether this civil commitment is what they're doing every 2 weeks or something completely different that we can try last-ditch before something horrible happens.
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thunderkitten
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There's sooo much more backstory that I'm not providing as well and I will skip but I think it's important to mention she's diabetic as well as having problems with high blood pressure, she's refusing those meds as well. I feel like that is most dangerous issue in this fucked up hot mess. How long can a person go without bp and diabetes meds until they blow an internal gasket?
And what fucking state allows a mentally ill senior to live on the street refusing all meds and talking to jesus in the intersection to continue doing that because it's their right to die a horrible and lonely death? I just can't wrap my mind around this at all.
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Enlil
OTD God-King




Registered: 08/16/03
Posts: 67,521
Loc: Uncanny Valley
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I don't know what they're currently doing, but civil commitment generally doesn't have a time limit. Some people spend the remainder of their lives in civil commitment...others recover and actually get better...usually from meds.
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Diploid
Cuban



Registered: 01/09/03
Posts: 19,274
Loc: Rabbit Hole
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Re: Ask a defense attorney [Re: Enlil]
#16741955 - 08/27/12 08:21 AM (11 years, 8 months ago) |
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Police departments have "sovereign immunity" from lawsuits...this means that you can't sue them without their consent.
Yeah, that's what I thought. That's rich. They can (and do) use arbitrary arrests to intimidate citizens into submission and there are no consequences. You gotta hand it to criminal thugs who can game the system so thoroughly.
Have you seen the video compilation of citizens being arrested when they walked into a police station and asked for a formal complaint form? It's depressing. The cop at the front desk tells the citizen that they have to first tell him what the complaint is and then he'll decide if he'll hand out the form. When the citizen presses, the cop simply arrests them.
Heads cop wins, tails citizen loses. It might be a little worse in Iran or Russia or China than it is in the United States of Hypocrisy, but not by much.
-------------------- Republican Values: 1) You can't get married to your spouse who is the same sex as you. 2) You can't have an abortion no matter how much you don't want a child. 3) You can't have a certain plant in your possession or you'll get locked up with a rapist and a murderer. 4) We need a smaller, less-intrusive government.
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thunderkitten
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Re: Ask a defense attorney [Re: Enlil]
#16741969 - 08/27/12 08:26 AM (11 years, 8 months ago) |
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Quote:
Enlil said: I don't know what they're currently doing, but civil commitment generally doesn't have a time limit. Some people spend the remainder of their lives in civil commitment...others recover and actually get better...usually from meds.
Thank you, this is golden info. I'll tell you how all this goes down when it does. Thank you again, you need a halo and some wings to go with this thread.
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Enlil
OTD God-King




Registered: 08/16/03
Posts: 67,521
Loc: Uncanny Valley
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Re: Ask a defense attorney [Re: Diploid]
#16741975 - 08/27/12 08:29 AM (11 years, 8 months ago) |
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Quote:
Diploid said: Police departments have "sovereign immunity" from lawsuits...this means that you can't sue them without their consent.
Yeah, that's what I thought. That's rich. They can (and do) use arbitrary arrests to intimidate citizens into submission and there are no consequences. You gotta hand it to criminal thugs who can game the system so thoroughly.
Have you seen the video compilation of citizens being arrested when they walked into a police station and asked for a formal complaint form? It's depressing. The cop at the front desk tells the citizen that they have to first tell him what the complaint is and then he'll decide if he'll hand out the form. When the citizen presses, the cop simply arrests them.
Heads cop wins, tails citizen loses. It might be a little worse in Iran or Russia or China than it is in the United States of Hypocrisy, but not by much.
It's not quite that simple, of course...Police can be criminally charged for violation of a person's civil rights...and 1983 claims are very common. Police do protect their own, but federal laws do allow someone to go after them without having to rely on a state process.
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Diploid
Cuban



Registered: 01/09/03
Posts: 19,274
Loc: Rabbit Hole
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Enlil's the man. I'm very grateful for this thread and don't understand the jerks who dis him constantly for no good reason.
Anyway, one more question. You said:
Quote:
You might be fired by mcdonalds if you pocketed $5 from the cash register...A lawyer would be unable to practice for the rest of his life.
Not that I'm planning on law school or anything, I'm happily retired and have no plans to change that but...
Would someone with a misdemeanor record be automatically disqualified from even taking the bar exam? How about a felony record if it was long ago, say 10 or 20 years? What if the record has been sealed or expunged?
-------------------- Republican Values: 1) You can't get married to your spouse who is the same sex as you. 2) You can't have an abortion no matter how much you don't want a child. 3) You can't have a certain plant in your possession or you'll get locked up with a rapist and a murderer. 4) We need a smaller, less-intrusive government.
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Enlil
OTD God-King




Registered: 08/16/03
Posts: 67,521
Loc: Uncanny Valley
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Re: Ask a defense attorney [Re: Diploid]
#16742017 - 08/27/12 08:40 AM (11 years, 8 months ago) |
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Quote:
Diploid said: Would someone with a misdemeanor record be automatically disqualified from even taking the bar exam? How about a felony record if it was long ago, say 10 or 20 years? What if the record has been sealed or expunged?
I had an expunged misdemeanor on my record. I also had other issues...some of them 15+years old...
It doesn't stop you from taking the bar, but it can stop you from being licensed. For me, it took 2 years from the time I passed the bar until I was licensed. I have heard of people being denied license altogether because of serious crimes (manslaughter, etc). When you don't have a perfect record, it takes longer, and it always helps to be able to show some evidence of "rehabilitation"...ie...volunteer work, etc.
Criminal history isn't the only thing that can set you back...an application for "character and fitness" includes many things...debt, bankruptcy, civil cases, termination from jobs, school/work discipline, etc. It is a grueling process. Further, failure to disclose something is considered the worst prossible misconduct...and usually means a denial of license...Or a revocation of license if it is later discovered that you failed to disclose something on the application.
Having said that, the most important timeframe is the period starting at your application to law school. Misconduct from that time on is considered much worse than misconduct before that time period.
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Anonymous #15
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Re: Ask a defense attorney [Re: Enlil]
#16742062 - 08/27/12 08:52 AM (11 years, 8 months ago) |
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I have an out-of-state serious misdemeanor that needs to be addressed. Where I should begin looking for a lawyer to help me? There has a been a warrant issued for my arrest in that state, as I have let it go on for many months without attending to it. Would it be possible to get this expunged off my record? It is a driving under the influence of marijuana ticket.
Also, I'd like to speak with a lawyer about the legalities of growing an illegal substance. Where should I begin looking for a lawyer to speak with about this? Would I be safe speaking with him? Could he simply let the information out and get me in legal trouble?
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Diploid
Cuban



Registered: 01/09/03
Posts: 19,274
Loc: Rabbit Hole
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Re: Ask a defense attorney [Re: Enlil]
#16742084 - 08/27/12 08:59 AM (11 years, 8 months ago) |
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So I understand that it's illegal to practice law without a license. Alright. What about representing someone fully disclosing that you're not a lawyer.
For example, I've taught myself all about the law (by reading this thread ) and a friend who's in trouble and can't afford a lawyer asks for my advice. Where is the line I can't cross in helping him out? Can I sit with him in court and advise him during trial? Can I make motions on his behalf? Can I direct and cross examine?
Understand that he is FULLY aware that I'm not qualified but has asked me to advocate for him anyway and he's formally a pro se defendant.
What if he agrees to pay me for my time?
It doesn't seem right that the system should deny someone the benefit of a knowledgeable layperson if that's what they want.
-------------------- Republican Values: 1) You can't get married to your spouse who is the same sex as you. 2) You can't have an abortion no matter how much you don't want a child. 3) You can't have a certain plant in your possession or you'll get locked up with a rapist and a murderer. 4) We need a smaller, less-intrusive government.
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Enlil
OTD God-King




Registered: 08/16/03
Posts: 67,521
Loc: Uncanny Valley
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Quote:
Anonymous said: I have an out-of-state serious misdemeanor that needs to be addressed. Where I should begin looking for a lawyer to help me? There has a been a warrant issued for my arrest in that state, as I have let it go on for many months without attending to it. Would it be possible to get this expunged off my record? It is a driving under the influence of marijuana ticket.
This will catch up to you eventually. You're not likely to be hauled back to the state or anything, but eventually, you'll lose your license in your current state because of it.
These things are tricky because you often will have to appear personally. This means exposing yourself to the risk of being arrested. Fortunately, for a misdemeanor like this, you can usually just post a fixed bail amount and get right back out...or not get arrested at all. Make sure you know how much to bring with you for this purpose.
As far as finding an attorney, this isn't a terribly difficult matter. You're not going to be going to trial on this. Most likely, you're going to take a deal and be done with it. I'd just call an attorney or two in the county where the warrant was issued and discuss it over the phone. They should be able to give you the straight scoop of what to expect.
Quote:
Also, I'd like to speak with a lawyer about the legalities of growing an illegal substance. Where should I begin looking for a lawyer to speak with about this? Would I be safe speaking with him? Could he simply let the information out and get me in legal trouble?
As long as you talk about 1) past conduct, or 2) future hypothetical conduct, the lawyer can't reveal anything you tell him. Just don't ever say "I plan on doing X, Y and Z"...you certainly can say, "What criminal liability am I looking at if I were to do X, Y, and Z?"
Understand, that even telling your lawyer that you plan on breaking the law doesn't necessarily allow him to reveal anything. The rules about this are a bit tricky, and they vary from state to state, so I don't recommend you try to ride the edge here...just couch any conversation about future conduct as a hypothetical, and you're safely within the range of things he cannot reveal.
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SoreSpore
Registered: 03/06/12
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Re: Ask a defense attorney [Re: Enlil]
#16742182 - 08/27/12 09:23 AM (11 years, 8 months ago) |
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Edited by SoreSpore (08/27/12 09:38 AM)
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Enlil
OTD God-King




Registered: 08/16/03
Posts: 67,521
Loc: Uncanny Valley
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Re: Ask a defense attorney [Re: Diploid]
#16742187 - 08/27/12 09:24 AM (11 years, 8 months ago) |
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Quote:
Diploid said: So I understand that it's illegal to practice law without a license. Alright. What about representing someone fully disclosing that you're not a lawyer.
For example, I've taught myself all about the law (by reading this thread ) and a friend who's in trouble and can't afford a lawyer asks for my advice. Where is the line I can't cross in helping him out? Can I sit with him in court and advise him during trial? Can I make motions on his behalf?
Understand that he is FULLY aware that I'm not qualified but has asked me to advocate for him anyway and he's formally a pro se defendant.
What if he agrees to pay me for my time?
It doesn't seem right that the system should deny someone the benefit of a knowledgeable layperson if that's what they want.
It's tricky. It is getting trickier every day as more and more information becomes more easily available to the general public.
There is no hard line between where giving someone the benefit of your knowledge becomes practicing without a license. Certainly, appearing in court on someone's behalf is practicing without a license. Writing a motion for someone is as well...but is editing a motion? Who knows.
I can also say that practicing without a license is different for attorneys than it is for non attorneys. For instance, I can't draft a contract for someone in a state in which I am not licensed...but you can.
As far as the rationale for these rules, it's no different than the rationale for making sure that people don't do surgery without a medical license. I have seen many very well-informed laymen act as pro se litigants...I am talking about people who would have learned nothing from this thread because they already knew it...Even they would be completely outgunned by a freshly minted lawyer who just passed the bar. I say this because understanding the law is not just knowing the statutes and cases. It's knowing how it all fits together.
Similarly, one might understand the process of removing a gall bladder. They might have studied it for years and read every possible article about it...They still won't know enough to safely remove one because they aren't well enough informed about how all of the body systems work together...so they don't know when something is going wrong or how to deal with it.
Believe me, I understand your frustration about this. Some people are gifted researchers and speakers...when one of those people has a less talented friend who could use their help, it seems wrong to force that friend to go it alone. The system has to minimize the damage potential, and there's simply no easy way to tell which laymen advocates are actually qualified to represent someone else.
Finally, keep in mind that many attorneys are only marginally competent. This is true despite the bar exam. If the profession can't even tell which of its own is competent, how can we possibly evaluate laymen? The day I was sworn in, I was considered qualified to handle a murder trial and write someone's will. Was I really qualified? No. I'm not sure I'm qualified to write a will today. What I am qualified to do, however, is gather the information necessary to write a will competently...That is what a lawyer is trained to do.
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