State v. Cook
| Decision Date | 29 August 1974 |
| Docket Number | No. 42928,42928 |
| Parties | STATE of Washington, Petitioner, v. Vina S. COOK, Respondent. |
| Court | Washington Supreme Court |
Christopher T. Bayley, King County Pros. Atty., Frederick L. Yeatts, Asst. Pros. Atty., Seattle, for petitioner.
Lanning, Mahoney & Bryan, Robert S. Bryan, Seattle, for respondent.
QUERY: Is a legal intern, certified under Admission to Practice Rule (APR) 9, employed in the office of a county prosecuting attorney, permitted to represent the state in a criminal proceeding from which lies a right of trial de novo on appeal?
We answer in the affirmative.
On March 6, 1972, defendant-respondent, Ms. Vina S. Cook, was charged in Renton District Court, King County, Washington, with driving while under the influence of intoxicating liquor. She entered a plea of not guilty. The cause came on for trial July 11, 1972. A legal intern, engaged by the office of the King County Prosecuting Attorney, appeared on behalf of the state. By pretrial motion to dismiss, Ms. Cook challenged the qualifications and authority of a legal intern to represent the state. The district court judge reserved ruling on the motion, heard the cause upon the merits, thereafter determined that a legal intern was not authorized to represent the state in the action, and ordered a dismissal of the complaint.
Division One of the Court of Appeals granted the state's petition for a writ of certiorari. By a 2--1 decision, the district court disposition was upheld. State v. Cook, 9 Wash.App. 227, 512 P.2d 744 (1973). We granted the state's petition for review.
Tersely stated, it is Ms. Cook's contention, and the position of the Court of Appeals' majority opinion, that: (a) Const. art. 11, § 5 1 vests the legislature with the exclusive power to provide for the office of county prosecuting attorney and to prescribe the duties thereof; (b) the legislature has, by RCW 36.27.010, 36.27.020(3) and (4), and 36.27.040, 2 prescribed the qualifications of county prosecuting attorneys and their deputies (admitted as attorneys in the state), as well as their duties (to prosecute all criminal and civil proceedings in which the state or county may be a party); and (c) the regulatory and rule-making power of the Supreme Court may not supersede, modify, alter, or diminish the legislatively prescribed qualifications and duties.
In support of the propriety of the legal intern's appearance in the instant situation, the state, as does the dissenting opinion in the Court of Appeals, per Horowitz, J., points to: (a) RCW 36.16.070, 3 which authorizes county elected officials to employ deputies and 'other necessary employees' to carry out the duties of the office; (b) the status of the legal intern as an employee rather than as a deputy prosecuting attorney; and (c) the inherent power of this court to determine who may or may not appear as counsel in the courts of this state. We are in accord with the views advanced by the state as amplified by Judge Horowitz.
Early in the history of this state, and consistently since, this court accepted and enunciated the virtually universal principle that the authority to determine who may or may not appear as legal counsel in the courts of this state is vested exclusively in the judicial branch of state government, and that this court, as head of the state judicial hierarchy, is inherently impowered to make the ultimate determination. In re Lambuth, 18 Wash. 478, 51 P. 1071 (1898); In re Robinson, 48 Wash. 153, 92 P. 929 (1907); In re Bruen, 102 Wash. 472, 172 P. 1152 (1918); In re Olson, 116 Wash. 186, 198 P. 742 (1921); In re Levy, 23 Wash.2d 607, 161 P.2d 651 (1945); State ex rel. Laughlin v. Washington State Bar Ass'n, 26 Wash.2d 914, 176 P.2d 301 (1947); In re Schatz, 80 Wash.2d 604, 497 P.2d 153 (1972).
In keeping with our inherent power, as well as with our legislatively recognized authority (RCW 2.48.060), 4 we, upon recommendation of the Board of Governors of the Washington State Bar Association, promulgated and adopted Rule 9 of Admission to Practice Rules, relevant portions of which provide:
Rule 9 Legal interns. A. Admission to Limited Practice as a Legal Intern.
Notwithstanding any provision of any other rule to the contrary, qualified law students, registered law clerks and graduates of approved law schools, upon application and approval in accordance with the requirements set forth in Rule 9B, may be admitted to the status of 'legal intern' and may be granted a limited license to engage in the practice of law in any trial court of this state under the direction and supervision of an active member of the Washington State Bar Association who has been actively engaged in the practice of law in the State of Washington or elsewhere as a full-time occupation for at least three years at the time the application is filed. Such supervising and direction of the practice of a legal intern shall be in accordance with the requirements and limitations set forth in Rule 9D.
* * *
* * *
C. Scope of Practice by Legal Intern Under the Limited License.
A legal intern shall be authorized to engage in the practice of law, including appearance in the trial courts of this state in civil and criminal matters, as limited by the provisions of this Rule 9.
D. Supervising Attorneys--Requirements.
* * *
* * *
(3) The supervising attorney need not be present in the courtroom during the legal intern's appearance in matters before and cases tried in a trial court from the judgment of which there is a right of trial de novo on appeal, except in the representation of a defendant in preliminary criminal hearings. However, if the supervising attorney or an attorney from the same office as the supervising attorney is present, the legal intern may appear in the representation of a defendant in preliminary criminal hearings.
* * *
* * *
(5) A judge may exclude a legal intern from active participation in proceedings before the court in the interest of orderly administration of justice or for the protection of a client or witness, and shall thereupon grant a continuance to secure the attendance of the supervising attorney.
(6) No supervising attorney shall have supervision over more than one (1) legal intern at any one time; however, in the case of recognized legal aid, legal assistance, public defender and similar programs furnishing legal assistance to indigents, or of state, county or municipal legal departments, the supervising attorney may have supervision over two (2) legal interns at one time.
It is at once apparent, either expressly or by logical implication, that, under the cited provisions of APR 9, a properly certified legal intern may: (1) engage in the practice of law subject to the limitations imposed; (2) be employed by a state, county, or municipal legal department; (3) except as counsel for a defendant in a preliminary criminal hearing, appear, without the presence of a supervising attorney, and represent a party, including the state, in a civil or criminal proceeding before a court of limited jurisdiction from the judgment of which there is a right of trial de novo on appeal; and (4) subject to a continuance, be excluded, in the interest of the orderly administration of justice, by the trial judge from participation in a proceeding absent a supervising attorney. Standing alone, the provisions of APR 9 would thus appear to fully authorize a legal intern to appear, without the presence of a supervising attorney, and represent the state in a criminal proceeding before the prescribed court.
We recognize, nevertheless, as pointed out in the majority opinion of the Court of Appeals, that Const. art. 11, § 5 impresses upon the legislature the responsibility of defining the qualifications and duties of a county prosecuting attorney. And, we appreciate that, pursuant thereto, the legislature has enacted RCW 36.27.010 and 36.27.040, which require that a prosecuting attorney and his deputies be regularly admitted resident attorneys at law, which provisions, in turn, qualify and limit the general authority to employ deputies extended to a prosecuting attorney, as a county elective official, by RCW 36.16.070.
We do not, however, conceive that RCW 36.27.010 and 36.27.040 cut across or restrict a prosecuting attorney's authority under RCW 36.16.070 to engage the services of 'other necessary employees' to carry out the duties of his office. Since, strictly speaking, a legal intern could not fully qualify as a deputy prosecuting attorney under RCW 36.27.010 and 36.27.040, it would appear reasonable to conclude that, if otherwise properly authorized, such a person could fairly be engaged and characterized as a 'necessary employee' on a prosecuting attorney's staff.
It is, nonetheless, urged on behalf of Ms. Cook that the language of RCW 36.27.020(3) and (4), requiring a prosecuting attorney or his qualified deputy to '(a)ppear for and represent the state . . .' and '(p)rosecute all criminal and civil actions . . .,' compels the in-court personal presence of the prosecuting attorney or his deputy at Ms. Cook's trial, and, in the prosecutor's absence, precludes the delegation of trial duties to a legal intern subject to the provisions and limitations of APR 9. We cannot agree that the legislature intended such an inflexible and rigid interpretation to be attached to the terms involved. 5
The words 'appear,' 'represent,' and 'prosecute' have varying meanings in varied contexts. In the legal lexicon pertaining to judicial proceedings, however, they generally and respectively denote actions related to: (1) a submission to the jurisdiction of a court; (2) the performance of functions pursuant to an attorney-client relationship; and (3) waging a proceeding in court. They do not, in every instance, mandate or necessitate the in-court corporal presence of the principal actor or agent. Given, then, the conditions and limitations of APR 9, we are satisfied...
To continue reading
Request your trial
-
State v. Sanchez
...courts have inherent power to determine who may appear before them as legal counsel. Hahn, 95 Wn.2d at 31 (citing State v. Cook, 84 Wn.2d 342, 525 P.2d 761 (1974)). Among the grounds on which an attorney may be disqualified are a conflict of interest that prejudices the rights of his or her......
-
Salary of Juvenile Director, Matter of
...evidence, See State ex rel. Haugland v. Smythe, 25 Wash.2d 161, 169 P.2d 706 (1946); to regulate practice of law, See State v. Cook, 84 Wash.2d 342, 525 P.2d 761 (1974); In re Patton, 86 N.M. 52, 519 P.2d 288 (1974); to control photography in court, See Ex parte Sturm, 152 Md. 114, 136 A. 3......
-
State v. Wadsworth
...Smythe, 25 Wash.2d 161, 169 P.2d 706 (1946). 95. See State v. Smith, 84 Wash.2d 498, 502, 527 P.2d 674 (1974). 96. See State v. Cook, 84 Wash.2d 342, 525 P.2d 761 (1974). 97. See State v. Edwards, 94 Wash.2d 208, 212, 616 P.2d 620 (1980). 98. Williams v. State, 690 N.E.2d 162 (Ind.1997); Pe......
-
People v. Jackson
...441, 271 P. 478). The acts of a de facto prosecutor may not be collaterally attacked in order to vacate a conviction ( State v. Cook, 84 Wash.2d 342, 525 P.2d 761, 766; State v. Bell, 84 Idaho 153, 370 P.2d 508; People v. Davis, 86 Mich.App. 514, 272 N.W.2d 707; see also, Matter of Schumer ......