Subpart 3.3 - Demanding "Counsel of Choice"
A. Party Requests to be Represented by a Non-Lawyer
Because members of the movement reject the legitimacy of the judicial system in this country, it should not be surprising that they also reject the concept of a "bar" of lawyers who do most litigation. In fact, the movement generally suggests that, because the bar is not a state organization, membership in the bar does not confer a "license," but instead confers only membership in an exclusive club. According to members of the movement, proceedings in court are meetings of this private club, presided over by a member of the club, and such proceedings have no jurisdiction over them.
As a result, and in addition to other tactics, members of these movements often seek to be represented by "one of their own," when appearing in court. That is, to be represented by another member of the movement, versed in their interpretation of the law and willing to argue it. Where denied this opportunity the member may attempt to proceed pro se, or may accept representation by a court-appointed attorney with the expectation that this attorney will follow their instructions and make the arguments they wish to make (which includes their "interpretations" of the law). In many cases, either the attorney representing the member will move to be relieved of the case or the member himself will become frustrated with the attorney's refusal to advance his arguments and will seek to remove or replace counsel.
Members of the movement may also seek to be represented by "counsel of their choice." While this argument will often include their desire to be represented by a non-lawyer adherent to their views, it may also be an argument that the court should pay any lawyer they select (not court-appointed). As well, members may attempt to delay the proceedings by selecting an attorney who either cannot or will not represent the defendant.
B. Responding to Requests to be Represented by a Non-Lawyer
It is quite clear that the court cannot itself lapse into lawlessness and violate state law by allowing a non-lawyer to practice law for another in the state courts. The court may rely upon several justifications for such a restriction, including the following:
1. Barratry - All states have barratry laws forbidding the unauthorized practice of law by non-attorneys.[3]
2. Waiver of Right to Counsel - Courts must exercise extreme caution in presuming that an individual has waived his or her right to counsel.[4]
3. Pro Se Litigants - the Sixth and Fourteenth Amendments guarantee a criminal defendant the right to counsel in most cases. The United States Supreme Court has elaborated on this right, to say that "the Sixth Amendment does not provide merely that a defense shall be made for the accused" and that "the right to self-representation - to make one's own defense personally - is thus necessarily implied by the structure of the amendment."[5] As a result, it is quite clear that the defendant himself or herself may proceed pro ye. Though we include this reminder here, the pro se defendant does not actually present the barratry problem because they do not fit the definition of the unlicensed practice of law.