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The United States of America v Howard O. Kieffer 1

The case of United States of America v. Howard O. Kieffer involved a man who impersonated a lawyer and practiced law without a license. Howard Kieffer was accused of falsely representing himself as an attorney in various state and federal courts across the country over several years. He handled more than 100 cases even though he never attended law school or passed a bar exam.

Kieffer’s impersonation scheme was discovered in December 2007 when a defendant in a North Dakota drug case grew suspicious about his credentials. An investigation revealed that Kieffer had no valid law license and had never been admitted to any state bar. He was subsequently charged with mail fraud, false statements, and contempt of court.

At Kieffer’s trial in March 2008, prosecutors presented evidence that he had filed pleadings, represented defendants, and charged legal fees without being an actual lawyer. Witnesses testified that Kieffer handled cases in at least 16 states over 12 years. He primarily took on criminal defense cases, including several death penalty cases. Kieffer’s defense tried to argue that he sincerely believed he had graduated from law school and been admitted to the bar, claiming he suffered from delusions.

The jury convicted Kieffer on 7 counts, including wire fraud, false statements, and contempt. In September 2008, he was sentenced to 51 months in prison. The judge called him “arrogant and unrepentant” and said he had shown no remorse. In addition to the prison term, Kieffer was ordered to pay nearly $152,000 in restitution.

Several issues arise from Kieffer’s impersonation of a lawyer:

Unauthorized Practice of Law

Kieffer was convicted of the unauthorized practice of law, meaning he acted as an attorney when he lacked the necessary qualifications and license. This is a crime in most states, punishable as a misdemeanor or felony depending on the jurisdiction. The purpose is to protect the public from incompetence and fraud.

However, determining what exactly constitutes the “practice of law” is not always clear cut. There are some gray areas regarding legal advice vs. general advice, ghostwriting, and representation in arbitration. Some activities like real estate closing services and tax preparation have exceptions. But Kieffer clearly crossed the line into criminal conduct by filing court documents and making court appearances as an attorney.

Ineffective Assistance of Counsel

The 6th Amendment guarantees criminal defendants the right to effective assistance of counsel. But can a defendant appeal based on ineffective assistance if their lawyer turns out to be fake? Several of Kieffer’s former clients tried this argument. Courts have generally ruled there is no right to counsel if the representation was by a non-lawyer impersonator.

However, in the 2012 case United States v. Bergman, the 7th Circuit granted a new trial to a defendant whose lawyer was later disbarred for being an imposter. So while there is no guaranteed right to relief, courts have some discretion on the issue.

Fraud and Misrepresentation

Kieffer was convicted of wire fraud and false statements for his impersonation scheme. Lying about credentials can constitute fraud in many professions. However, some argue Kieffer’s misrepresentation didn’t necessarily harm his clients. In fact, some were satisfied with his legal services. This raises questions about whether the fraud was primarily against the courts themselves.

But most courts have found that falsely acting as a licensed attorney does defraud clients who believe they are receiving qualified legal counsel. Those clients may miss deadlines, receive incorrect advice, or get denied remedies they were entitled to under the law. Fraud laws are intended to punish and deter this type of misrepresentation.

Professional Licensing

The Kieffer case also highlights issues around state licensing regimes for the legal profession. Becoming a licensed attorney requires passing the bar exam and moral character screening. This process aims to protect the public, but has been criticized as too restrictive and anti-competitive.

Some advocates argue for reform such as reciprocity between state bar licenses. There are also debates around allowing people with law degrees to provide limited legal services without passing the bar. Cases like Kieffer’s show the potential harm of letting the wrong people practice law, but also raise questions about the tradeoffs around regulating professional licensing.

Mental Health

Kieffer’s defense claimed he suffered from delusional beliefs about attending law school and passing the bar exam. While the jury rejected this, some experts say Kieffer may have had mental health issues that contributed to his elaborate ruse. Pathological lying and impairment from alcohol abuse could have been factors as well.

Should evidence of mental illness mitigate punishment in a fraud case like this? It likely depends on the severity, the causal role it played, and the prospects for rehabilitation. But it adds a layer of nuance and complexity around criminal culpability and sentencing.

The Kieffer case exposed gaps in the legal profession’s self-regulation. It led to calls for better verification of credentials across jurisdictions. For example, the American Bar Association created a national lawyer database in 2011. Some states considered requiring background checks for court appointments. While no system is foolproof, improvements aimed at preventing and detecting imposters can help reduce the chances of a similar scandal happening again.

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