Court of Appeals of Virginia Finds the Prosecutor Lacking a Valid Law License is NOT Grounds for Reversing a Conviction

It sounds like a story straight out of an episode of “Suits.” Should a court reverse a defendant’s conviction if the prosecutor who pursued the charges against him lacked a valid law license? But this was no TV show. It was real life and the basis for the opinion of the Court of Appeals of Virginia yesterday in Flores v. Commonwealth, 2025 WL 1160870 (Va. App. 2025).

In Flores, Yovani Cardenas Flores “was indicted on three counts of aggravated sexual battery of a child under the age of 13 for conduct against Y.S.” According to the court,

The Virginia State Bar suspended the law license of the Assistant Commonwealth’s Attorney who prosecuted Flores’ case because she had failed to pay her bar dues through an oversight after changing jobs. It is unlawful to practice law in Virginia without being “authorized or licensed.”

In finding that this was not grounds for reversing the conviction, the court noted, inter alia, that the majority of courts considering such claims have rejected them. According to the court,

While convictions involving unlicensed prosecutors are uncommon, they are not unprecedented. And every jurisdiction to consider the question—except one—has concluded that a prosecutor’s lack of license does not per se invalidate an otherwise valid conviction. For example, in State v. Ali, 752 N.W.2d 98 (Minn. Ct. App. 2008), the Minnesota Bar suspended a prosecutor for failure to complete continuing legal education (“CLE”) requirements. Although the Ali prosecutor suffered bar discipline for this indiscretion, the defendant’s conviction was upheld. The court explained that: (1) the defendant failed to show any prejudice from his prosecution by an unlicensed lawyer, (2) the unlicensed prosecutor was a previously admitted lawyer on restricted status only for regulatory reasons, and (3) the integrity of the criminal justice system compels “a reluctance to set aside a criminal conviction when guilt was fairly established.”…

The same outcome was reached in People v. Carter, 77 N.Y.2d 95, 101, 564 N.Y.S.2d 992, 566 N.E.2d 119 (1990). There, a prosecutor had graduated from law school, but never bothered to obtain a license to practice law. The veteran prosecutor had been seeking convictions for sixteen years without ever being admitted to the Bar. While the appellate court blanched at the prosecutor’s conduct, it ultimately concluded that his unlicensed status did not deprive the defendants he prosecuted of any constitutional rights….Ultimately, the court found the defendant suffered no prejudice that would require dismissal of the indictments against him….

The federal courts similarly have followed this logic. In Munoz v. Keane, 777 F. Supp. 282, 285 (S.D.N.Y. 1991), aff’d sub nom, Linares v. Senkowski, 964 F.2d 1295 (2d Cir. 1992), the court concluded that a prosecution “conducted by an unlicensed attorney does not violate” a defendant’s due process rights. The court also confirmed that a defendant has no right to a licensed prosecutor under the Due Process Clause of the Fourteenth Amendment….

Illinois precedent stands in contrast to the majority rule of upholding convictions obtained by unlicensed prosecutors. In People v. Dunson, 316 Ill.App.3d 760, 250 Ill.Dec. 77, 737 N.E.2d 699 (Ill. Ct. App. 2000), the Illinois court vacated a defendant’s conviction where the prosecutor was unlicensed during the course of the prosecution. The court opined:

[P]articipation in the trial by a prosecuting assistant State’s Attorney who was not licensed to practice law under the laws of Illinois requires that the trial be deemed null and void ab initio and that the resulting final judgment is also void….

This ruling was consistent with prior Illinois precedent, People v. Munson, 319 Ill. 596, 150 N.E. 280 (1925), in which the Illinois Supreme Court required that a prosecuting attorney be licensed and vacated a criminal conviction on the ground that the prosecuting attorney was unlicensed at the time the state obtained a criminal indictment.

We find the majority view more persuasive on this question; we also note that Virginia adheres to the de facto officer doctrine which militates strongly toward upholding the conviction in this setting.

-CM