Florida - WITHDRAWAL
Court erred in denying public defender’s motion to withdraw on conflict grounds after lawyer failed to disclose privileged information in response to judge’s questioning. [Added 4/20/16]
Defendant, who was charged with murder, was represented by an assistant public defender (the “PD”). The PD moved to withdraw 4 days before trial, certifying that a conflict of interest existed “because [Defendant’s] interests were ‘so adverse and hostile to those of another client and/or an attorney within the Office of the Public Defender.” The trial court held a hearing on the motion. The PD informed the court that he had contacted the Bar’s Ethics Counsel regarding the conflict, and the Bar recommended that PD’s office withdraw from both cases. The state presented a hypothesis as to the nature of the conflict. The court asked the PD whether the conflict was similar to what the state thought it might be. The PD said that he could not answer. The court denied the motion to withdraw.
The Second DCA quashed the order denying the PD’s motion to withdraw. Per F.S. 27.5303(1)(a), the court may make a limited inquiry but is not permitted to inquire into privileged communications when faced with a public defender’s motion to withdraw on conflict grounds. “The trial court should have ceased the inquiry when, as an officer of the court, the assistant public defender asserted that a response to the inquiry would have required the disclosure of privileged information. The trial court departed from the essential requirements of the law because it necessarily compelled the assistant public defender to make the unsavory choice between disclosing privileged information and potentially being permitted to withdraw or depriving his client of the constitutional right to be represented by conflict-free counsel. Neither is a virtuous choice.” (Emphasis added.) Young v. State, __ So.3d __ (Fla. 2d DCA, No. 2D15-3245, 3/30/2016), 2016 WL 1238597.
Lawyer’s failure to file proper notice of withdrawal eventually mushroomed into sanctions and referral to Bar for not maintaining reliable address. [Added 12/27/15]
Lawyer filed a “Notice of Withdrawal” advising the Fifth DCA that the lawyer was immediately withdrawing as the appellant’s legal representative. The notice was not served on the appellant. The court ordered Lawyer to file a motion to withdraw that complied with Fla.R.App.P. 9.440 within 10 days. Lawyer failed to do so.
Lawyer was ordered to show cause, and served with follow-up orders, by certified mail and email. Lawyer argued that email service violated due process “because the internet does not provide a reliable medium for proper legal notice.” The court simply noted that Fla.R.Jud.Admin. 2.516(h)(1) “provides that the court ‘may serve any order or judgment by e-mail to attorneys who have not been excused from e-mail service.’”
The court imposed sanctions on Lawyer. When he failed to pay, the court ordered Lawyer to appear before the court to show cause why he should not be further sanctioned. The court’s attempts to personally serve lawyer were unsuccessful; the process server went to the address on file for Lawyer but found it was not an office but the residence of Lawyer’s parents. Attempts to find an alternative address for Lawyer were unavailing.
In view of the circumstances, the court stated: “We find it a grievable offense that an attorney appearing before a court does not have a reliable address. See R. Regulating Fla. Bar 4-1.3 (‘A lawyer shall act with reasonable diligence and promptness in representing a client.’). By copy of this Order, the Florida Bar is requested to investigate Attorney John T. Jenkins, Jr. for his apparent violations of the Rules of Professional Conduct and to provide a report to this Court. We reserve jurisdiction to rule on the sanctions matter, which will be held in abeyance pending receipt of the Florida Bar’s report.” Belkova v. Russo, __ So.3d __ (Fla. 5th DCA, No. 5D14-2201, 12/18/2015), 2015 WL 9239810.
Actual prejudice to defendant not required before public defender will be permitted to withdraw during retrial phase due to conflict involving another client. [Added 2/25/15]
The Public Defender’s Office (“public defender”) represented Deviney and Smith in two different murder cases. The same judge presided over both cases. The public defender filed substantially similar motions to withdraw in each case, asserting that the representation of each of these clients “would be materially limited by her responsibilities of loyalty and confidentiality to another unnamed client, pursuant to Rule [of Professional Conduct] 4-1.7.”
At the hearing on the motion in Deviney’s case, the public defender informed the court that she could not disclose the nature of the conflict in detail without breaching her duty to one or both clients. The state responded that it would waive any interest it had in using information from Deviney against another defendant. At the hearing in Smith’s case, the state asserted that it had no interest in using information from another criminal defendant at Smith’s trial.
The trial court denied the motions to withdraw in both cases, ruling that the public defender “had ‘not presented evidence sufficiently establishing the existence of an actual conflict.’” The order noted that “‘the State is not using any other public defender client as a State witness during trial and the State has no intention on seeking to learn the information at issue from the other public defender client.’”
The public defender petitioned the First DCA for a writ of certiorari, arguing that the trial court’s finding that the public defender did not present sufficient evidence of an actual conflict went beyond what is required for withdrawal under F.S. 27.5303(1)(a). This statute provides that, when the public defender files a motion to withdraw due to conflict between its clients, the court “may inquire or conduct a hearing into the adequacy of the public defender’s representations regarding a conflict of interest without requiring the disclosure of any confidential communications” (emphasis by court). The state arguing that, per Cuyler v. Sullivan, 446 U.S. 335 (1980), the public defender must show an active conflict of interest that affected counsel’s performance.
The First DCA quashed the orders denying the motions to withdraw. “We disagree with the State’s premise that actual prejudice to the defendant is required before withdrawal of counsel will be permitted in the pretrial context.” In the pretrial stage, the court has broad discretion in determining whether a conflict exists. See Kolker v. State, 649 So.2d 250 (Fla. 3d DCA 1994). Furthermore, “‘[v]iewed prospectively, any substantial risk of harm is deemed prejudicial.’ Scott v. State, 991 So.2d 971, 972 (Fla. 1st DCA 2008).”
The appellate court summarized: “Once a public defender has certified a conflict, and where it becomes clear that the trial court cannot learn the basis for the conflict ‘without requiring the disclosure of . . . confidential communications,’ the trial court must grant the motion under section 27.5303(1)(a).” The trial court’s requirement that the public defender disclose information to establish an actual conflict “runs contrary to section 27.5303(1)(a), because for the public defender’s office to present such evidence, it would be forced to reveal confidential and privileged client information.”
The state’s offer to not use the information did not eliminate the conflict. The appeals court noted that the offer was too narrow; it seemed to apply only to the current charges against Smith and “did not cover the use of information against Mr. Smith relating to a new and uncharged crime.” (Emphasis by court.) Smith v. State, __ So.3d __ (Fla. 1st DCA, Nos. 1D14-5647, 1D14-5730, 2/17/2015).
Supreme Court denies motion to withdraw filed by lawyer representing convicted criminal defendant who wants to argue for death sentence. [Added 7/17/14]
Lawyer represented a defendant who was convicted of murder. Defendant wanted to argue in favor of imposition of a death sentence. Lawyer moved to withdraw, citing Rule of Professional Conduct 4-1.2(a) (lawyer must abide by client’s decisions regarding objective of representation). Lawyer argued that withdrawal was necessary to avoid a violation of his ethical duty to his client, Defendant.
The Supreme Court denied Lawyer’s motion to withdraw. Noting its legal responsibility to ensure that the death penalty is not imposed in an arbitrary or capricious manner, the Court stated that the “only way” to fulfill this duty was to have “meaningful appellate review of each death sentence” – even where a defendant may wish to be executed. See Klokoc v. State, 589 So.2d 219 (Fla. 1991); Ocha v. State, 826 So.2d 956 (Fla. 2002).
The Court concluded: “[W]e discern no ethical violation in requiring current counsel to continue to prosecute this appeal fully for the benefit of the Court in meeting its statutory and constitutional duties. Accordingly, the motion to withdraw is hereby denied. Consistent with this Court’s prior precedent in analogous situations, and as requested in the motion, [Defendant] may seek leave to file a pro se supplemental brief setting forth his personal positions and interests with regard to the subject matter of the appeal.”
Three justices dissented. Robertson v. State, __ So.3d __ (Fla., No. SC13-443, 7/10/2014).
Supreme Court adds new Rule of Juvenile Procedure governing withdrawal in dependency and termination of parental rights cases. [Added 5/31/13] -- In re: Amendments to the Florida Rules of Juvenile Procedure, 115 So.3d 286 (Fla. 5/23/2013).
Per Supreme Court, trial courts may consider “excessive caseload conflict” issue in deciding motions to withdraw on systemic rather than case-by-case basis. [Added 5/28/13] -- Public Defender, Eleventh Judicial Circuit of Florida v. State, 115 So.3d 261 (Fla. 5/23/2013).
Court erred in dismissing case where party was not notified that his lawyers had withdrawn and was not provided copy of withdrawal order. [Added 3/7/13] -- Brunoehler v. Burger, 108 So.3d 733 (Fla. 5th DCA 3/1/2013).
Fifth DCA indicates that lawyer’s motion to withdraw should be granted where attorney-client relationship has become “adversarial.” [Added 11/13/12] -- Bowin v. Molyneaux, 100 So.3d 1197 (Fla. 5th DCA 2012).
Criminal conviction reversed because court abused its discretion in denying motion to substitute counsel and for short continuance. [Added 12/20/11] -- Alvarez v. State, 75 So.3d 420 (Fla. 4th DCA 2011).
Supreme Court amends Rules of Judicial Administration regarding withdrawal motions, pro hac vice admissions, electronic filing, and electronic testimony. [Added 10/4/11]
The Florida Supreme Court amended the Rules of Judicial Administration effective January 1, 2012. A sunEthics.com summary of the changes appears below.
Motions to withdraw. Amended Rule 2.505(f) requires that a motion to withdraw filed by a party's counsel include the client's last known telephone number and email address. The Court stated in its opinion that the amendment would "make it easier for the court [in which the withdrawal motion was filed] to maintain contact with a party who may have to proceed pro se after withdrawal of the attorney."
Pro hac vice admission. Amended Rule 2.510(a) requires an attorney licensed in another state seeking pro hac vice admission in a Florida court "must make application in each court in which a case is filed even if a lower tribunal granted a motion to appear in the same case." However, the amended rule goes on to specify that "[a]ppearances at different levels of the court system in the same case shall be deemed 1 appearance for the purposes of determining whether a foreign attorney has made more than 3 appearances within a 365-day period."
Electronic filing. New Rule 2.525(g) requires that "[a]ll documents transmitted in any electronic form under this rule must comply with the accessibility requirements of Florida Rule of Judicial Administration 2.526." In turn, new Rule 2.526 requires that electronically-filed documents that become judicial branch records must be formatted in a manner that is accessible to persons with disabilities.
Electronic testimony. Looking toward the wider use of electronically-transmitted testimony, the Court amended Rule 2.530(d) to provide: "A county or circuit court judge, general magistrate, special magistrate, or hearing officer may allow testimony to be taken through communication equipment if all parties consent or if permitted by another applicable rule of procedure." In explaining this change, the Court stated that the amendment "will allow the various Florida Bar rules committees to consider whether their bodies of rules should be amended to allow for the use of communication equipment without the parties consent." In re: Amendments to the Florida Rules of Judicial Administration, 73 So.3d 210 (Fla. 2011).
Fifth DCA denies motion to withdraw from appellate proceeding on ground of "irreconcilable differences." [Added 9/26/11] -- Benenati v. Chase Home Finance, LLC, 70 So.3d 600 (Fla. 5th DCA 2011).
Law firm may be liable in legal malpractice action for harm to former client occurring after firm withdrew from representation. [Added 4/17/11] -- Golden Gate Homes, LC v. Levey, 59 So.3d 275 (Fla. 3d DCA 2011).
Court erred in denying motion to withdraw filed by lawyer who wasn't being paid. [Added 3/4/11] -- Roth v. Cortina, 59 So.2d 163 (Fla. 3d DCA 2011).
Court erred in denying continuance where party was unemployed and her counsel withdrew on eve of trial. [Added 12/3/10] -- Quintero v. Kenyon, 48 So.3d 808 (Fla. 3d DCA 2010).
Court erred in granting Public Defender's motion to withdraw based on alleged "excessive caseload" conflict. [Added 7/8/10] -- State v. Bowens, 39 So.3d 479 (Fla. 3d DCA 2010).
Court erred in denying motion to withdraw because Office of Criminal Conflict and Civil Regional Counsel not subject to appointment for indigent defendants in postconviction case. [Added 4/26/10] -- Office of Criminal Conflict and Civil Regional Counsel, Second District v. Smith, 33 So.3d 105 (Fla. 2d DCA 2010).
Lawyer appointed from "Involuntary Appointment List" to represent defendant in complex RICO prosecution should have been permitted to withdraw. [Added 8/18/09] -- Hagopian v. Justice Administrative Commission, 18 So.3d 625 (Fla. 2d DCA 2009).
Third DCA reverses circuit order permitting Public Defender's Office to decline representation in all future 3rd-degree felony cases. [Added 5/15/09] -- State v. Public Defender, Eleventh Judicial Circuit, 12 So.3d 798 (Fla. 3d DCA 2009). Law firm's effort to withdraw from case in response to motion to disqualify may not remedy problem. [Added 4/2/09] -- Lewis v. Nical of Palm Beach, Inc., 10 So.3d 159 (Fla. 4th DCA 2009).
Regional Conflict Counsel has no standing to object to Public Defender's motion to withdraw from a case on conflict grounds. [Added 3/20/09] -- Johnson v. State, 6 So.3d 1262 (Fla. 4th DCA 2009).
Lawyer who withdrew from contingent fee case for health reasons may not have forfeited his right to fee. [Added 11/1/07] -- Collier v. Bohnet, 966 So.2d 1033 (Fla. 4th DCA 2007).
Defense counsel's "nodding acquaintance" with key state witness was not conflict of interest requiring counsel's withdrawal; defense counsel did not err in failing to withdraw; RPC 4-3.5(d)(4) constitutional. [Added 10/17/07] -- Kormondy v. State, 983 So.2d 418 (Fla. 2007).
Second DCA outlines procedure for lawyers to follow when withdrawing from or appearing in cases already on appeal. In re P.G., 944 So.2d 443 (Fla. 2d DCA 2006). NOTE: See also S.H. v. Department of Children and Family Services, 955 So.2d 610 (Fla. 5th DCA 2007).
Client's absence from defense counsel's ex parte disclosure to court of counsel's concerns about his ability to be effective (due to anticipated bar complaint and client perjury) violated client's due process rights. Frett v. State, 864 So.2d 577 (Fla. 2d DCA 2004).