The Case They Still Cite: How a Pro Se Defendant's Fight Became the New York Bar's Textbook

There is a difference between winning a case and becoming the law. Most lawyers practice an entire career without ever writing a sentence that other lawyers are told to follow. Now consider what it means when a man with no law license, no firm, and no co-counsel — fighting for his own life from the wrong side of a thirty-five-year federal sentence — produces a decision that the organized bar of the State of New York cites as controlling guidance seventeen years later.

Ethics Opinion 949

On December 17, 2012, the New York State Bar Association's Committee on Professional Ethics issued Opinion 949, answering a question that reaches every courtroom in America: what exactly are the duties of standby counsel when a defendant exercises the constitutional right to represent himself? The Committee reached for the national authorities that define the pro se defendant's ground: Faretta v. California, 422 U.S. 806 (1975), from the Supreme Court; United States v. Schmidt from the Second Circuit; United States v. Mullen from the Fourth. And in footnote 2, right in that company, this: United States v. McDermott, 64 F.3d 1448, 1453 (10th Cir. 1995) — cited for the proposition that standby counsel may consult, make some objections, help with the admission and admissibility of exhibits, and make some motions.

United States v. McDermott, 64 F.3d 1448, 1453 (10th Cir. 1995) — standby counsel may “consult, make some objections, help with the admission and admissibility of exhibits, and make some motions.”

— NYSBA Committee on Professional Ethics, Opinion 949, n.2 (Dec. 17, 2012)

Read what that means

When the New York bar needed to tell its licensed attorneys where the line sits between a self-represented citizen and the lawyer standing by, the map they used was drawn in David Bruce McDermott II's case. The boundaries of the very right this entire platform is built on — the right of an ordinary person to stand up in a federal courtroom and speak for himself, with counsel available but not in control — were staked out, in part, by a man the system had already written off. The karate-kid drills in the Tulsa law library, the vow to Judge Ellison, the pencil and the reporters — all of it ends up here: in the Federal Reporter, in a bar association's official guidance, in the professional education of lawyers who will never know the man behind the citation.

The lesson for every underestimated person reading this

The law does not check your diploma before it prints your case. It checks your argument. A pro se litigant who does the work — real citations, real procedure, real discipline — can put a brick in the wall of American law that licensed professionals will stand on for generations. That is not a slogan. That is footnote 2. Read the opinion yourself at nysba.org (Ethics Opinion 949), pull 64 F.3d 1448 off the shelf in the Library on this site, and then go build your own filing — the Builder is free, and so is the standard.

Every citation in this article is public record and independently verifiable — the opinion on the New York State Bar Association's own website, the case in the Federal Reporter. Exactly the way this house likes it.