Florida - WITHDRAWAL
Court erred in denying public defender’s motion to withdraw and substitute private counsel, “mistakenly believ[ing] that the defendant’s potential incompetency” to proceed in criminal case equated to lack of capacity to consent to substitution of counsel. [Added 6/3/21]
A circuit court denied a public defender’s motion to withdraw from a criminal case because the defendant was not indigent and wanted to substitute private counsel. Defendant petitioned for a writ of certiorari.
The Fourth DCA granted the writ. The trial court “mistakenly believed that the defendant’s potential incompetency to proceed in this criminal case equated to a lack of capacity to consent to the substitution of counsel.” The appellate court indicated that there was no authority “holding that private counsel may not be substituted for the Public Defender on behalf of a potentially incompetent, yet not indigent, defendant. Thus, the only issue for the circuit court to decide is whether the defendant is competent to proceed with counsel, whomever that counsel may be.”
A concurring opinion pointed out that “even incompetent criminal defendants retain the capacity to exercise certain rights, such as the right to give written consent for treatment [F.S. 916.107(3)(a)], and the right to vote [F.S. 916.107(7)].” Law Office of the Public Defender, Seventeenth Judicial Circuit v. State, __ So.3d __ (Fla. 4th DCA, No. 4D21-1233, 5/12/2021), 2021 WL 1898123.
Motion for withdrawal filed by private counsel on eve of sentencing hearing properly denied under Fla.R.Jud.Admin. 2.505(f)(1), where only reason given for withdrawal was “irreconcilable differences.” [Added 2/3/20]
Convicted Criminal Defendant appealed, contending that the trial court had abused its discretion in denying his counsel’s motion to withdraw. Defendant had been represented by private counsel. The day before the sentencing hearing, counsel moved to withdraw due to “irreconcilable differences.” At the beginning of the sentencing hearing, the trial court asked counsel whether he wanted to add anything regarding the withdrawal motion, and counsel did not provide any details. The court denied the motion, commenting that it “was filed on the eve of sentencing.” The court also denied a pro se motion for downward departure. At that point counsel moved for an ex parte hearing to explain why he needed to withdraw. The court denied that motion. Counsel stated that he had a conflict with Defendant, and the court reiterated that the motion to withdraw was denied.
The Fourth DCA affirmed. The appeals court noted that a motion to withdraw filed on the eve of sentencing should be treated the same as a withdrawal motion filed on the eve of trial, because “permitting withdrawal at such a late juncture would have hindered the functioning of the court as there would not have been time for [Defendant] to procure new counsel.”
The court further stated that “the motion to withdraw was legally insufficient as it made only a bare assertion of ‘irreconcilable differences’ without providing any details as to the alleged conflict. A motion to withdraw must ‘set forth the reasons for withdrawal.’ Fla. R. Jud. Admin. 2.505(f)(1). Without such details, a court is unable to determine whether any of the grounds for withdrawal set forth in Rule 4-1.16(b), Rules Regulating the Florida Bar, are present, or whether the ‘attorney-client relation’ has ‘deteriorated to a point where counsel can no longer give effective aid in the fair presentation of a defense.’” (Citation omitted.) Schultz v. State, __ So.3d __ (Fla. 4th DCA, No. 4D18-3413, 1/15/2020), 2020 WL 218312.
Court abused discretion in not granting criminal defendant brief continuance to retain counsel of choice. [Added 6/19/19]
Criminal Defendant was charged with DUI, drug possession, and other offenses. While being held in jail in an adjoining county on unrelated charges, Defendant’s public defender told the court Defendant was “fine” with going to trial on January 29. Five days before trial, Defendant was transported for trial. On the day of trial, Monday, Defendant’s public defender informed the court that he was “familiar with everything” and “in theory” could try the case, Defendant had a private lawyer with him and wanted to that lawyer to represent him. The public defender asked for a continuance to allow private counsel to take over the case, stating that Defendant became aware of the trial date only the preceding Thursday. Private counsel requested a 2 or 3 day continuance to prepare for trial. The state responded that one of its witnesses would be unavailable on Thursday.
The trial court denied the request for continuance and proceeded to trial, noting that “it’s not like we have unprepared lawyers. If we have an unprepared lawyer I would be continuing it.” Defendant was tried and convicted. He appealed, contending that the trial court violated his constitutional right to retain counsel of his choice.
The Fourth DCA agreed and reversed. “[W]e find that the trial court abused its discretion in not granting a short continuance. The court did not make ‘proper findings’ that the state would be prejudiced by the delay, that the request for continuance was made in bad faith, or that the trial court’s schedule would not permit a continuance. See Deal [v. State], 145 So. 3d [212 (Fla. 4th DCA 2014)] at 214. Accordingly, we reverse and remand for a new trial.” Jones v. State, __ So.3d __ (Fla. 4th DCA, No. 4D18-656, 5/29/2019), 2019 WL 2275000.
Mandamus lies to compel entry of order ruling on lawyer’s motion to withdraw from guardianship case. [Added 6/7/19]
Lawyer moved to withdraw from representing a client who was acting as a guardian, citing “irreconcilable differences between them.” The client consented to the withdrawal. The withdrawal motion was set for hearing, but the court’s judicial assistant cancelled the hearing. No order cancelling the hearing or ruling on the withdrawal motion was entered.
Lawyer petitioned the Third DCA for an order remanding the case to the trial court with directions to enter an order of withdrawal. The appeals court noted that it has no certiorari jurisdiction in the matter because no order was entered below. But the court did determine that, pursuant to Fla.R.App.P. 9.040(c), we to treat Lawyer’s certiorari petition as a petition for a writ of mandamus and to grant the petition. The court withheld issuance of the writ, “trusting that the trial court, in a timely manner, will adjudicate Schwartz’s motion to withdraw.” (Footnote omitted.) Steven K. Schwartz, P.A. v. Banks, __ So.3d __ (Fla. 3d DCA, No. 3D19-839, 5/22/2019), 2019 WL 2202559.
Court abused discretion in dismissing case after refusing to recognize appearance of new counsel because prior counsel had not withdrawn. [Added 2/19/19]
Bank, acting as a trustee, brought a foreclosure action against the Bells in 2008. Bank moved for summary judgment. The Bells appeared at the hearing but their counsel did not. Final judgment was rendered for Bank, but before the foreclosure sale could occur the Bells filed for bankruptcy. After the bankruptcy case was dismissed, new counsel for the Bells moved to vacate the judgment. The trial court granted the motion and vacated the foreclosure judgment, ruling that the Bells “had been prejudiced by their attorney’s failure to appear at the summary judgment hearing and thereby denied an opportunity to be heard.”
The case was set to be tried on February 9, 2017. On February 7 a new law firm, Brock & Scott, filed a notice of appearance for Bank and a motion to continue the trial. The trial court denied the motion for continuance. The Bells’ counsel subsequently argued that “Brock & Scott was not properly representing [Bank] because there was no withdrawal of the prior law firm and there was no order of substitution of counsel,” contended that as a result Brock & Scott should not be heard, and moved for dismissal of the case with prejudice. The trial court “found that [Bank’s] attorney ‘failed to appear after being properly noticed’ and granted [the Bells’] motion to dismiss the case with prejudice.” Bank appealed.
The Fifth DCA reversed because the trial court abused its discretion in finding that Bork & Scott was not counsel of record for Bank. Under Fla.R.Jud.Admin. 2.505(e), “counsel may appear in a proceeding through any one of three ways: (1) by serving and filing a party’s first pleading; (2) by substitution of counsel, which requires an order of the court and the client’s written consent; or (3) by ‘filing with the court and serving upon all parties a notice of appearance as counsel for a party that has already appeared in a proceeding pro se or as co-counsel for a party that has already appeared in a proceeding by non-withdrawing counsel.’ Here, Brock & Scott filed a notice of appearance pursuant to rule 2.505(e)(3), which did not require a court order. As prior counsel had not moved to withdraw, the only implication is that [Bank] was represented by more than one law firm, which is permissible. We further determine that [Bank] was denied due process when the trial court proceeded to hear and rule on [the Bells’] ore tenus motion for dismissal of the complaint with prejudice without providing [Bank] a full and fair opportunity to present its case, despite the fact that [Bank] was present by counsel and a corporate representative witness.” U.S. Bank, N.A. Trustee for AMP 2006EFC26 v. Bell, __ So.3d __ (Fla. 5th DCA, No. D17-2983, 2/1/2019), 2019 WL 405482.
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] -- 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] -- 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] -- 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] -- 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).