The bar association did say that this can be addressed via a fee dispute resolution which is very informal and at no cost.
That's internal and involves fees - it does NOT deal with the appeal issues at all.
If the bar does decide that the attorney did not adequately address the 911 call and the way he was stopped it can be an ineffective assistance of council issue.
I cannot imagine they will go that far. He would likely have to hire an attorney to make the case for ineffective counsel in an appellate court. The finding of the Bar - even if they find him in error (which I doubt as chances are they are not going to delve that deep into the issue), it does nothign to change the end result of the case and would not prove to an appellate court that there was, indeed, ineffective counsel.
I still contend that the prior is a red herring as it does nothing to help in his current case. And if he has that kind of money, he needs to worry about THIS case, not something that happened years ago and was likely addressed at the original trial anyway.
They, the PD's, said even if the description of him and his car were exact the officer would have had to witness the "swerving" himself, which he obviously did not.
The officer can still contact someone parked along the side of the road. There was no detention until AFTER the contact, so it's a moot point.
If John Q. Citizen can walk up and talk to a person parked on the side of the road, so can the police.
Wouldn't the initial police contact make a very big difference?
Lawful cause for the detention would have been established at trial. From what you have thus far written, I don't see how this is even an issue. Had the car been stopped whil in motion, MAYBE there could have been an issue. But, an officer is free to investigate parked cars and contact anyone they want on the side of the road. If during that contact they smelled alcohol, and based upon the previous call and their observations the officer can articulate impairment and driving, you have DUI. The place to litigate that would have been at trial.
The number of cases that get overturned due to ineffective counsel is quite minuscule.
And, again, the time for appeal has long since passed so he would have to pay a lot of money to attempt something that does him no real good at this time.
They (the bar assoc.) went on to say the original private attorney may even clean up the mess free of charge to avoid having to return any money....that is if the case can be heard again. This entire endeavor supposedly will not cost much and not take much time. I thought it was kind of interesting.
You will note that they did not say your friend had a case, only that this was how he might pursue a complaint through the Bar Association, and what the end results might be. They are not going to tell you or him over the phone what merit his complaint might have.
In speaking with the various public defenders the fact that the officer said, "I am approaching you because of a call..." was illegal.
Then they misunderstood you, or you misunderstood them. I can approach and contact anyone I want. What I might NOT be able to do is detain or arrest them after contact.
If he has the money to pay for lawyers to pursue appeals and his current criminal case, he is free to do so. He has a right to try. I just don't think he should get his hopes up because there is nothing that you have articulated here that lends itself to much hope. There may well be some facts that are present in the original case that DO lend some credence to a claim of malpractice. But, in my experience, cases of malpractice resulting in a new trial on appeal (which would be the likely result - NOT exoneration) are extremely rare.
As I understand the previous case, the police were drawn to him because of a 9-1-1 call that identified him and/or the car ... the police saw the car on the side of the road and made contact believing he was the person reported on the call ... on contact, they developed independent cause (odor of alcohol, objective signs of impairment, etc.) that he might be under the influence of drugs or alcohol ... a subsequent investigation resulted in an arrest for DUI. if that' about it, I don't see the grounds for the appeal or ineffective counsel. He doesn't have a right to be impaired in public on alcohol or medication, and the police do not need reasonable suspicion or probable cause to contact someone sitting in their car. If any member of the general public can do it, so can the police. If there is something missing, feel free to add it, but if that is the case in a nutshell, then I strongly suspect he will be throwing good money after bad to try and overturn one previous conviction which will result in a new trial and will do nothing for his current DUI case. If he has the money, he needs to spend it on the new case.
- Carl
The bar association did say that this can be addressed via a fee dispute resolution which is very informal and at no cost. If the bar does decide that the attorney did not adequately address the 911 call and the way he was stopped it can be an ineffective assistance of council issue. They, the PD's, said even if the description of him and his car were exact the officer would have had to witness the "swerving" himself, which he obviously did not. They also agreed my friend can get 50% or more of his fees back and possibly go back before a judge. I am waiting on a definitive answer on the possibility of case being heard again. I think it would have made a big difference in the case but I'm obviously not a lawyer or legal expert of any kind. Wouldn't the initial police contact make a very big difference? They (the bar assoc.) went on to say the original private attorney may even clean up the mess free of charge to avoid having to return any money....that is if the case can be heard again. This entire endeavor supposedly will not cost much and not take much time. I thought it was kind of interesting. In speaking with the various public defenders the fact that the officer said, "I am approaching you because of a call..." was illegal. I realize this conflicts with what you are saying but they were pretty adamant about it. Obviously, I have no idea what is and what is not legal but all four of them agreed completely and said it is worth pursuing both from a financial reimbursement standpoint and cleaning up his record.