Lowering the Bar has a story about a fellow at the San Francisco DA’s office who got a job after claiming to have passed the bar exam.  He then lost the job when his ersatz new employer checked the bar results.  Most of us would take this for granted, that an employer like the District Attorney would verify passing the bar, but that’s not necessarily the case.

The story reminded me of the tale of Dan Penofsky.  Dan had 16 years in as an ADA at the Brooklyn DA’s office and the Special Narcotics Prosecutor’s office.  Special narcotics was a citywide superjurisdictional prosecutor in New York City that handled drug cases across county lines.  It’s head was Sterling Johnson, later to be a federal judge in Brooklyn and member of the US Sentencing Commission. 

Dan was a hard-nosed ADA.  Neither unpleasant nor unreasonable, he was no pushover.  He looked like an ADA.  He dressed like an ADA.  He was a go-to type of ADA who faced down some very tough drug dealers in the days when drug dealers meant what they said.  Not the girlie type of rat drug dealers we have today, but the Tony Montana type.

The only problem was that Dan Penofsky wasn’t a lawyer.  He was never a lawyer.  Sixteen years in the DA’s office, from 1973 to 1989, and nobody knew that he wasn’t a lawyer.

But he was one hell of an ADA.  He put a lot of people in jail.  A LOT.  He tried cases, and he tried them damn well. 

When the word came out about Dan, it was one of those rolling on the floor laughing moments.  Not at Dan, so much, but at the absurdity of it all.  For all the platitudes we spout about education and professionalism, about law and society, there was good old Dan putting bad guys behind bars year after year after year.  And he wasn’t a lawyer.

Epilogue:  Some defendant sought to challenge their convictions, arguing that they could not lawfully be convicted by an ADA who was unqualified (in the technical sense) to prosecute their case.  The theory is that the exercise of prosecutorial discretion by a person not qualified to prosecute, and his unauthorized presentation to the grand jury, denied them due process. The Court of Appeals disagreed.  It’s not like they were going to let every miscreant that Penofsky put away out of jail, no matter how embarrassing the decision might be.

In dissent, Judge Titone wrote the following:

It has been observed that a Grand Jury can indict anyone or anything — even a ham sandwich. [n 1] Now, under the majority’s holding, apparently anyone can present the People’s case to the Grand Jury — even an unadmitted layperson masquerading as an attorney. Because this position makes a mockery of both the rules prohibiting legal practice by laypersons and the Grand Jury system itself, I dissent.

Now if this doesn’t make you proud to be a lawyer, I don’t know what does.