Prison Consultant Convicted of Impersonating Lawyer

Howard Kieffer, the post-conviction consultant who misrepresented himself as an attorney and defended clients in numerous federal courts was convicted at his first trial yesterday in North Dakota. He faces up to 25 years in jail. The Indictment is here (pdf).

It's hard to find a balanced article on Howard, whom many of us around the country have encountered at legal seminars or through his Bureau of Prisons Listserv, but this recent article in the ABA Journal, Catch Me If You Can is one.

I don't recall ever meeting Howard in person, but he's commented on TalkLeft, sent some e-mails over the years and I thought his BOP List-Serv was helpful.

The Judge has continued Howard's bond pending sentencing with a requirement of home detention. He still has criminal charges pending in other jurisdictions.

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    I don't get how he could (none / 0) (#1)
    by Joelarama on Thu Apr 16, 2009 at 10:04:54 AM EST
    represent defendants in federal court without a license.  Don't courts require and confirm bar numbers on filing -and many opposing counsel make a practice of looking at credentials of their opponents, at Martindale and at the Bar websites.

    Manny Real in LA is the only judge (none / 0) (#2)
    by oculus on Thu Apr 16, 2009 at 10:07:58 AM EST
    I've ever heard inquired in the courtroom if a certain lawyer was a member of that particular federal district.  He wasn't.

    He applied (none / 0) (#3)
    by Jeralyn on Thu Apr 16, 2009 at 10:10:58 AM EST
    for admission pro hac vice (for one time only) in various jurisdictions and local lawyers, most of whom it seems met him at seminars, vouched for him, assuming he was a lawyer in good standing. They didn't check. The courts didn't check.

    One time (none / 0) (#4)
    by eric on Thu Apr 16, 2009 at 10:18:40 AM EST
    my office screwed up and didn't renew my license by sending in the required fee.  If you don't pay, they suspend the license.  It went on that way for 8 months until some diligent clerk did happen to look me up when I was filing an answer to a complaint.  I think that she was new and was following the rules closely.  But for 8 months I filed a lot of pleadings and appeared in court and nobody ever checked my status.

    martindale? (none / 0) (#6)
    by wystler on Thu Apr 16, 2009 at 12:01:52 PM EST
    here's a hint: Martindale does not publish every licensed lawyer's name

    it's not impossible, but it does involve digging, to determine how each state manages their local bar. some license directly through a state agency, others through a quasi-government commission, while others have a state bar association that manages the roll of licensees

    admission to federal court is local, based on being licensed to practice somewhere. some jurisdictions are more fastidious than others in confirming what's claimed in a motion for admission, and can be especially lax if the "lawyer" is applying pro hac vice

    this cat Kieffer is the poster boy for the recent wave of pro hac admission requirement tightening


    oh, and for more info (none / 0) (#7)
    by wystler on Thu Apr 16, 2009 at 12:05:56 PM EST
    see this ABA Journal article on Kieffer (esp the list at the end)

    Not "balanced" (none / 0) (#5)
    by Peter G on Thu Apr 16, 2009 at 11:52:59 AM EST
    I can't agree that the ABA Journal article is balanced.  There is no "other side" to practicing law (or any other licensed profession) without a license, so there is nothing to "balance" there.  Nor is there "another side of the story" to lying about your credentials and personal history.  But when the reporter called me for an interview, and I wanted to talk about the good (and lawful) work that Howard did as an ex-inmate prison consultant, and in running BOP-Watch, the reporter showed no interest at all.  The point is made in two short quotes, one from me and one from Alan Ellis.  In the article, I am then described as his "biggest -- if not only -- supporter," as if I had excused or justified his misrepresentations.  

    On BOP-Watch, defense attorneys, BOP employees and retirees, non-lawyers doing prison work, and prisoners' families could pose questions and receive (from one another and frequently from Howard) consistently accurate and helpful information and advice, for free.  Yes, of course he used that forum to promote himself as an expert -- but there's nothing wrong with that, as long as he didn't claim falsely to be a lawyer. (Don't most listservs and blogs serve in part to promote their moderators as experts and thus serve the moderators' personal if not business interests?) As far as I could see, as an active participant in that list for many years, Howard did not claim in his posts on the listserv to be an attorney.  Other issues, predating his false statements to get admitted pro hac vice, are in the grey area -- whether his website, e-mail and web domain names, and business name ("Federal Defense Associates") were designed to be misleading about his professional status.  The statements he was convicted for, on the other hand, were clear and flat-out false.

    it was balanced because (none / 0) (#8)
    by Jeralyn on Thu Apr 16, 2009 at 12:14:53 PM EST
    it included quotes from you and Alan Ellis that mentioned the positive things he did via the list-serve. All the other articles I have seen have just been one-sided in their attacks on him.

    Not one-sided, but ... (none / 0) (#10)
    by Peter G on Thu Apr 16, 2009 at 01:52:18 PM EST
    By not "balanced," I guess I meant that the ABA Journal story avoided what I thought was the most interesting issue -- putting aside the clearly unlawful in-court "representation": what is the "practice of law" exactly? To what extent are trained or self-taught non-lawyers (be they ex-prisoners, social workers, or former prison officials) allowed to provide counseling and advocacy in an area governed by legal rules (administrative practices, formal regulations, statutes, and the Constitution), such as prison and sentencing? Such advocates do function in other areas -- veterans benefits, social security, real estate agents, tax accountants, etc.  I was hoping the article would explore the Kieffer story in that context.  

    as you can see from the post below (none / 0) (#11)
    by Bemused on Thu Apr 16, 2009 at 02:40:20 PM EST
      I think there are some legitimate questions involved with whether certain instances providing lay assistance in administrative matters is and/or should considered unauthorized practice of law.

     First, though we need to distinguish between those  questions and mistrpresenting one's self as an attorney even if one is providing assistance that could be provided by a lay person. If he obtained money from people by inducing them to believe he was a lawyer -- even without making the unambiguous statement "I'm a lawyer" -- then it's game over as far as I am concerned.

      On the other hand, if he held himself out as a self-taught "expert" on administrative matters then a close look must be taken at the nature of services provided and there are "gray areas" as to what is or isn't the practice of law. Identifying and explaining relevant regulations and policiy statements and the showings required to obtain certain administrative actions such as transfers or lower security classifcation and helping assemble documents to make such showings would seem to me at least in some cases to fall into a "gray area."

      Adding into it the fact that very few lawyers do such work because it is boring, not available to an extent to be financially sensible and only very rarely would present instances of in justice sufficient to motivate pro bono representation in a world with so many more compelling cases, and good arguments can be made for allowing knowledrable lay people to provide assistance so long as they make it clear they are not lawyers and not qualified to provide legal advice or representation and inform people to consult a licensed attorney with regard to matters of legal interpreation and analyisis.


    In my experience (none / 0) (#9)
    by Bemused on Thu Apr 16, 2009 at 01:08:59 PM EST
    courts both state and local vary a good bit on what is required, but the most I have ever been required to do is furnish a certificate from my home state bar that I am a member in good standing. Even that, if one is determined to deceive will prevent little because someone willing to sign a false declaration to the same effect might not be above taking the additional step of forging a certificate. If no one with the admitting court verifies directly with the licensing agency in the home state another piece of paper isn't much.

      The bottom line is that the system operates on a high degree of trust and that can be exploited.

      I can't remember the details but I vaguely recall a case from a few years back, I think from upstate NY, where a guy without a license gort a job with a PD's office and practiced regularly before the court in a single jurisdiction before being discovered. (As I remember, both his bosses and the prosecutors were quoted as saying he was competent and zealous.)  If that can be pulled off,m single shot appearances before foreign courts would be even less likely to draw attention in the absence of complaints.

      I think there is also a huge difference between assisting someone with administrative BOP issues such as security classification or facility designations which involve matters which do not invoke a right to counsel and representing someone at sentencing which does. I would think any person he represented solo  at a critical stage is automatically entitled to a rehearing because when you have an absolute denial of the right to counsel you don't have to prove prejudice. Where he was co-counsel, the defendants probably will have to prove prejudice but if they can they should get a new hearing. On strictly BOP administrative  matters there is no right to counsel so I  don't think  those people would have any recourse but a private claim for damages, and I'll assume he didn't carry malpractice insurance.


    Can you practise law w/o a law degree? (none / 0) (#12)
    by sarcastic unnamed one on Thu Apr 16, 2009 at 03:21:19 PM EST
    iow, "merely" passing a bar exam?

    I'm pretty sure (none / 0) (#13)
    by Bemused on Thu Apr 16, 2009 at 03:42:10 PM EST
     a few states still allow the apprenticeship route where after working for a sponsoring attorney for a specified duration one may sit for the bar and be admitted if he meets the other requirements, bar exam, character review, age, etc. I've never met a lawyer who didn't go to law school but I think there are probably a few somewhere.

      I know that at least most states if not all allow people who graduated from unaccredited law schools to become licensed if they serve an apprenticeship and then pass the bar, etc.



    Interesting, thanks. (none / 0) (#14)
    by sarcastic unnamed one on Thu Apr 16, 2009 at 04:17:49 PM EST
    that answer is a bit confused (none / 0) (#16)
    by Peter G on Thu Apr 16, 2009 at 08:54:01 PM EST
    "Reading" for the bar is (or was) an alternative to law school, not an alternative to getting a license.  The answer is no, you cannot practice law in any state without having a "law license," which normally means (a) passing that state's bar exam, or waiving in by virtue of admission elsewhere plus experience; and (b) taking an oath (or affirmation).  That's the same as what people mean when they say "passing the bar" or "being admitted to the bar."  Simply taking and passing the exam is not sufficient unless you also take the oath.  In a couple of states, such as Wisconsin, graduating from the state's own law school is also a substitute for taking the bar exam.  And practicing law without a license is a crime in many states, and at least subject to a civil court order to stop (injunction) everywhere.  The issue we are kicking around here is exactly what constitutes "practicing law" other than appearing on other folks' behalf in court.  This is a controversial and difficult question in many instances.

    sorry (none / 0) (#18)
    by Peter G on Thu Apr 16, 2009 at 10:50:17 PM EST
    my comment was directed at #13, not at you (#15), but in fact I did misunderstand that one because I misread SUO's underlying question, which was whether you could become a lawyer w/o attending law school.  Somehow I thought the question was whether you could practice law w/o a state-issued license. Nevermind.

    the issue of what constitutes (none / 0) (#20)
    by Bemused on Fri Apr 17, 2009 at 06:06:20 AM EST
     the practice of law is difficult to answer in many contexts. Representing people in court is the easy one because obviously one must be a licensed attorney to do that. Drafting legal documents such as wills, deeds, contractss, etc, are also considered clearly within the "practice of law" although sometimes there might be a question about how a particular document should be classified,

      The questions arise usually in areas where people advise other with regard to problems or issues that have actual or  potential legal consequences and the nature of the advice given arguably should be informed by knowledge of the law. Examples often arise in insurance, property transactions, debt relief and similar areas where a person provides advice.

      Lawyers are like any other "trade group" and vigilant in protecting  "their turf" and thus revenue sources. The arguments always, of course, center on protecting the public, but some might view some of the arguments as self-serving.

      In this case, it's obvious Kieffer weny way over any possible line in numerous instances by misrepresenting himself as an attorney and practicing in court so it's not likely that  other instances where he was operating in more of a gray area will be addressed in any formal fashion, leaving the question of the permissible extent of lay assistance with BOP administrative procedures for another day.

      Personally, I don't see a problem with allowing lay people to assist prisoners with purely administrative matters but think larger questions arise when the administrative matters overlay with disciplinary issues involving possible sanctions and requiring some minimal due process. But, since prisoners are not entitled to appointed counsel in those matters would affordable lay assistance be better than nothng? Probably, but there needs to be some regulation of qualifications to protect people from paying for services from the unqualified.



    Taking the bar without a J.D. (none / 0) (#21)
    by steintr on Wed Apr 22, 2009 at 04:46:08 PM EST
    New York is another example, although it requires that the applicant have completed at least one year of law school.  See Rule 520.4 of the N.Y. Court of Appeals.

    As it happens, I appeared last year in the Southern District of New York to move the admission of two of my colleagues, and one of the other applicants that day had been admitted to the NY bar after law office study.  Judge Cote paused after reading the petition, expressed her surprise that people still did that, and then congratulated the applicant (before granting the motion).  I take it it's not a particularly frequent occurrence in her (or any) court.  (Since, among other things, it requires a supervisor in the law office who can and is willing to teach a variety of the "subjects customarily taught in law school.")