In re Lewis
| Decision Date | 02 February 2023 |
| Docket Number | 99939-2 consol. w/ 99941-4 |
| Citation | 523 P.3d 760 |
| Parties | In the MATTER OF the Personal Restraint of Justin LEWIS, Petitioner. In the Matter of the Personal Restraint of Robert L. Ayerst, Petitioner. |
| Court | Washington Supreme Court |
Lise Ellner, Attorney at Law, P. O. Box 2711, Vashon, WA, 98070-2711, for Petitioners.
Benjamin Curler Nichols, Asotin County Pros. Attorney's Office, Curtis Lane Liedkie, Attorney at Law, P. O. Box 220, Asotin, WA, 99402-0220, Jaime Kiona Young, Attorney at Law, 135 2nd St., Asotin, WA, 99402-9532, for Respondents.
John Ballif Midgley, Nancy Lynn Talner, ACLU of Washington Foundation, P. O. Box 2728, Seattle, WA, 98111-2728, for Amicus Curiae on behalf of American Civil Liberties Union of Washington.
Jeffrey Todd Even, Washington Attorney General's Office, P. O. Box 40100, 1125 Washington St. Se, Olympia, WA, 98504-0100, for Amicus Curiae on behalf of Washington State Office of Public Defense.
Robert Charles Boruchowitz, Seattle University School of Law, 901 12th Ave., Seattle, WA, 98122-4411, for Amicus Curiae on behalf of The Defender Initiative.
Alexandria Marie Hohman, The Washington Defender Association, 810 Third Avenue, Suite 258, Seattle, WA, 98104, for Amicus Curiae on behalf of Washington Defender Association.
¶1 The issue presented here is whether a lawyer who is licensed in Idaho but not in Washington is nevertheless a lawyer for purposes of the Sixth Amendment to the United States Constitution. Petitioners Robert Ayerst and Justin Lewis were represented at their criminal trials by Robert Van Idour. Though a licensed attorney in Idaho, Van Idour was never admitted to practice in Washington. Accordingly, Van Idour was not authorized to practice law when he represented the petitioners, along with 100 other indigent defendants in Asotin County. Van Idour's failure to gain admittance to the Washington bar is not just shockingly unprofessional—it is unethical and indefensible. Such conduct is rightly subject to penalties in the form of professional censure and criminal liability. Indeed, Van Idour's law license has been suspended. As the body entrusted with regulating the legal profession in this state, we condemn Van Idour's behavior.
¶2 The case before us today asks not whether to mete out further punishment to Van Idour, however much it may be deserved. Rather, we are asked to determine the legal consequences of Van Idour's failure to obtain licensure in Washington. Ayerst and Lewis contend this failure resulted in a complete denial of counsel, which constitutes structural error and demands reversal of their convictions. While we agree Van Idour's actions violate our state licensure rules, we disagree that they amounted to a constitutional denial of counsel. Therefore, we affirm the Court of Appeals’ denial of Ayerst's and Lewis's personal restraint petitions.
¶3 In 2016 and 2017, the State charged Ayerst and Lewis, respectively, with separate felonies in Asotin County. The trial court appointed Van Idour, an Idaho attorney with over 30 years of experience, as defense counsel. Both cases went to trial. Both defendants were convicted, and the Court of Appeals affirmed their convictions.1 The underlying facts of those cases are not in dispute.
¶4 Within a year of their convictions finalizing, Ayerst and Lewis filed for postconviction relief. They claimed that they were denied their state and federal constitutional right to counsel because Van Idour was not licensed to practice in Washington when he represented them. Ayerst also alleged that the presiding judge at trial, Judge Scott Gallina, engaged in criminal activities that violated the appearance of fairness doctrine and Ayerst's due process right to a fair and impartial tribunal.
¶5 The Court of Appeals denied the petitions. The court reasoned that while Van Idour was not licensed in Washington and thus was not acting as " ‘counsel’ as that term is defined for constitutional purposes," the representation was not so egregious as that found to be per se reversible in other cases, such as representation by a person posing as a lawyer. In re Pers. Restraint of Ayerst , 17 Wash. App. 2d 356, 360-61, 486 P.3d 943 (2021) (). Further, the court noted, Van Idour was a licensed attorney in Idaho, Van Idour could have been qualified to provide representation in accordance with the admission to practice rules (APR), there was no evidence Van Idour purposefully evaded state licensing procedures, and Van Idour could have been confused about the requirements. Id . at 362. Therefore, the court concluded that Ayerst and Lewis failed to allege facts suggesting Van Idour's licensing problems were so severe as to require per se reversal; they did not request a reference hearing and thus did not establish a basis for relief. Id. at 363.2
¶6 Ayerst and Lewis petitioned for review separately in this court. Both claimed that the Court of Appeals’ holding on their deprivation of counsel claims conflicts with this court's decision in Ratliff . Ayerst also sought review of his claims against Judge Gallina.
Department Two of this court granted review only of the right to counsel issue and consolidated the two cases.
¶7 The parties include additional evidence in their supplemental briefing. The State presented Van Idour's November 2019 declaration filed in the Court of Appeals. In it, Van Idour declares he was admitted to the Idaho bar in 1980 and had practiced for over 30 years, including handling hundreds of criminal defense cases. In 2017, Van Idour began representing clients as a contract public defender in Asotin County under APR 8 and under the supervision of attorney Neil P. Cox. Van Idour states that he was notified in 2017 that his admission by motion requirements were met but that his admission under APR 8 was not granted.
¶8 The American Civil Liberties Union of Washington (ACLU), among others,3 submitted amicus briefing that included Van Idour's stipulation to suspension. Van Idour stipulated to the following facts in the Washington State Bar Association (WSBA) disciplinary complaint: he was admitted to practice in Idaho and he was never admitted to practice in Washington; he told the Asotin County Board of Commissioners that he was in the process of applying for admission in Washington when seeking the county's indigent defense contract; in 2017, he applied to WSBA by motion under APR 3(c); and he was awarded the indigent defense contract, which he signed on January 29, 2017, requiring him to be a member of WSBA throughout the term of the contract (February 1, 2017 to January 31, 2018).
¶9 Van Idour further stipulated that he was not admitted to practice at the time he executed the contract and did not gain admission during the pendency of that contract, in which he represented over 100 clients. On February 20, 2017, Van Idour applied for limited admission to WSBA under APR 8(c), which was never approved. On October 6, 2017, Judge Gallina signed an order for limited admission to practice "purport[ing] to provisionally admit" Van Idour in Asotin County Superior Court to provide indigent services "in accordance with APR 8." Amicus Curiae Br. of ACLU, App. A. This order was backdated to February 1, 2017; it did not constitute admission to practice law, and Van Idour knew it did not constitute admission. On October 26, 2017, Van Idour was notified that his application for admission under APR 3(c) was approved and that he was required to take additional steps prior to gaining admission. A little over a month later, Van Idour received notice that his APR 8(c) application was denied because he did not meet the criteria for limited admission under the rule.
¶10 Van Idour states that he believed he was authorized to practice in Asotin County because he had applied for admission under APR 3(c) and 8(c), and because the court appointed him as counsel in February 2017. But, Van Idour agreed that neither the pending applications nor the court appointment actually authorized him to practice and that he should have confirmed his authorization with WSBA.
¶11 Accordingly, Van Idour stipulated to violating the rules of professional conduct by practicing law without authorization. WSBA noted Van Idour's lack of prior disciplinary record, his character and reputation, and his remorse as mitigating factors, and noted his lengthy experience was an aggravator. WSBA imposed the presumptive sanction of suspension. This court approved and suspended Van Idour for 18 months, enjoining him from seeking admission to WSBA during that time.
¶12 The State also included in its supplemental briefing an e-mail exchange between Asotin County employees and WSBA, inquiring into Van Idour's application status. The Asotin County Superior Court administrator, Tammy Tenny, e-mailed Van Idour on March 2, 2017, asking about the status of his Washington license. Van Idour responded on March 17 that WSBA's admissions department was processing his application. Several weeks later, Tenny called WSBA and spoke with the admissions department regarding Van Idour's application. The admissions representative said the application was submitted and could take up to six months to process.
On September 5, 2017, Tenny again contacted WSBA admissions for an update on the application. The department responded that Van Idour's application was being reviewed by regulatory service counsel. On October 26, 2017, Van Idour forwarded Tenny an e-mail from WSBA stating his application had been approved and the admissions process needed to be completed. On January 31, 2018, Judge Gallina received a message from Van Idour saying WSBA had alerted him that the court's backdated "Order of Conditional Admission" was not sufficient to allow him to practice in superior court.
¶13 At the outset, we note our...
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