Wednesday, January 21, 2015

What happens when a lawyer appears on behalf of a client by mistake and causes delay in the case? ~ ~ Best Answer ~ Call Michael A. Haber, Esq. @ **ARRESTED

Q:     An attorney represented my husband "mistakenly" due to a clerical error from the clerk of court. Is this legal?  An attorney was accidentally"assigned to my husband's case when he should have had a public defender because he had the same last name as the attorney's other client. My husband is incarcerated and they wouldn't take him to his hearing. The attorney (who now has discovered the error) no longer represents him, but requested TWO continuances in his stead. My husband never signed any papers for representation whatsoever. Had I not called to figure out what was going on, he would have been taken to his 3rd hearing with NO representation whatsoever. Plus, this case has jail time attached and is being dragged out now. Can I argue his right to a speedy trial? It will be over 90 days for a misdemeanor by the time his new court date arrives. And was this even legal?  I want to clarify something for efficiency's sake. This question is more prominently begging the answer as to whether it was legal for an attorney who had never seen or met my husband, nor did he have permission from him to represent him, to do so anyway, due to a clerical error? P.S- I am not personally trying to take on his case, I have since gotten him assigned a PD.

A:    Chosen as "Best Answer" by Asker!

Michael Adam Haber


Contributor Level 20


Lawyers agree


Best Answer
chosen by asker
Answered Speedies are most likely blown, but this is an interesting - if not a novel - legal question.

Here is my advise: Get the PD appointed asap, and bring her/him up to speed. The PD's office has an appellate division (i.e. lawyers who exclusively litigate criminal appeals issues) and if there is a speedy trial case to be made here then believe me, and bet your bottom dollar, that they will be on it like white on rice.

Still, I suspect that your hubby will be further screwed on the speedy trial issue by the system (in part because that's what the system does) one way ore the other (i.e. either the claim will be denied for one reason or another or it will be granted, in which case he may be forced to trail without any meaningful or effective defense having been prepared).

Regardless, the silver linings are A) your incredible efforts, continued interested and participation and B) the PD's office will ♥ this.

I hope that I have been helpful in answering your question.

No photo
Posted about 1 hour ago.
Michael, thank you for your approach to this matter! It's actually refreshing. While I recognize the fact that my husband certainly shouldn't have been driving with a suspended license (commencing an actual scolding following his release), the reason I was bringing this issue up was moreover because I just couldn't fathom that an attorney could just stand up in court and represent my husband without ANY prior consent. I have finally gotten a PD assigned to his case and will definitely discuss these points that you've shared with him. My only question is, and we can make this a hypothetical if you'd like ;) : Isn't there some violation of civil liberties when an attorney represents a person unbeknownst to them, even if it's due to a clerical error? I mean, I know the system (especially in Florida) is absolutely corrupt, but seriously?

Michael Adam Haber
Michael Adam Haber, Criminal Defense Attorney - Miami, FL
Posted less than a minute ago.
The answer, as is often the case in the law is, "it depends". There was likely a good faith mistake made by the lawyer who though that s/he had been appointed (of course this may not be true, but I suspect that it is the case).

The Court appointment process is in constant flux. There are PD's, what we call "Regional Counsel" (a sort of second tier PD system with private lawyer's who "contract" with the State to work part-time as quasi-PDs) and then CAC (or Court Appointed Counsel, a sort of specially appointed PD's). With all of these variables it's not inconceivable that a bona fide mistake was made.

Just as cops sometimes "benefit" from mistakes (i.e. there is a "good faith" exception for otherwise illegal acts) so too can Defendants, or, sometimes Defendant's can be effectively penalized / prejudiced by a simple mistake as well.

Like I said before, the PD's will be all over this issue. If there is any way at all to achieve a benefit or to use this screw up to your husband's advantage then I am 1,000% certain that the PD will take full advantage of the same. PD's (all defense attorneys actually) are used to being beaten down by a system which is realistically skewed toward the State, and they (we) therefore revel in any opportunity to cram the rule of law down the government's proverbial throat.

I am happy to have been of assistance and I wish you and your husband the best of luck. Hopefully he has more to fear from you than the system. I also want to thank you for your kind feedback in choosing my answer as "best". It is through feedback such as yours that others are confidently able to rely upon advise and seek counsel. Rest assured that I will be posting your question on my blog (link below) shortly.

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First, second and third: No attorney-client relationship exists by virtue of any Q&A with Michael A. Haber, Esq. on Avvo. Fourth: Anything that you post on Avvo (or on similar sites) or on any social media is by its nature public. It is essentially an admission / confession and can be introduced into evidence as a statement against your interest in a subsequent legal proceeding. Once posted you lose any reasonable expectation of privacy, so, as this is an open forum (with no privilege attached), please be extra careful when considering what to post online (forewarned is forearmed.) 

Since 1991 Michael A. Haber, P.A. has an unblemished record of providing boutique criminal defense litigation services to many folks who have been accused of criminality. 

Michael A. Haber, Esq. has creatively, effectively and zealously represented clients on a wide variety of criminal matters ranging from DUI to drug trafficking and from misdemeanors to first degree murder. 


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