FLORIDA NEWS ARCHIVE - LAWYER ETHICS, Withdrawal
Supreme Court adds new Rule of Juvenile Procedure governing withdrawal in dependency and termination of parental rights cases. [Added 5/31/13]
Responding to proposals submitted by the Juvenile Court Rules Committee, the Florida Supreme Court amended the Rules of Juvenile Procedure effective July 1, 2013.
Among the amendments was the adoption of new rule 8.517, titled “Withdrawal and Appointment of Counsel.” This rule addresses withdrawal of counsel for a parent or custodian in a dependency or termination of parental rights proceeding and the appointment of appellate counsel.
The Court summarized the new rule as follows: “The new rule provides that after an order of adjudication of dependency, an order of disposition, or an order terminating parental rights has been entered, counsel of record shall not be permitted to withdraw until counsel certifies that he or she has discussed appellate remedies with the parent or custodian and certifies that the parent or custodian does not wish to appeal or, if the parent or custodian wishes to appeal, certain appellate documents have been filed and appellate counsel has been appointed. If counsel is unable to contact the parent or custodian, counsel must certify the efforts made to contact the parent or custodian. Finally, the rule requires the court to serve a copy of the order appointing appellate counsel on the appointed counsel and the clerk of the appellate court.” 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]
The Florida Supreme Court accepted review of two Third DCA decisions: State v. Public Defender, Eleventh Judicial Circuit, 12 So.3d 798 (Fla. 3d DCA 2009), because it directly affected a class of constitutional officers (i.e., public defenders); and State v. Bowens, 39 So.3d 479 (Fla. 3d DCA 2010), which certified the question of whether Fla.Stat. sec 27.50303(1)(d) was constitutional. (Section 27.50303(1)(d), in the view of the Third DCA, “prohibits a trial court from granting a motion for withdrawal by a public defender based on ‘conflicts arising from underfunding, excessive caseload or the prospective inability to adequately represent a client.’”)
In Public Defender the Public Defender’s Office filed motions to be relieved of the obligation to represent indigent criminal defenders in a number of non-capital felony cases. In Bowens an assistant public defender sought to withdraw on the basis of a conflict created by an excessive caseload.
The Supreme Court consolidated the 2 cases. In its opinion, the Court set forth the following conclusions.
Applicability of section 27.50303(1)(d). The Court concluded that section 27.50303(1)(d) is applicable. Even though its language refers to “withdrawal,” the Court concluded that the statute also reached to motions to decline future appointments. “The statutes governing the public defenders and their duties support the Third District’s conclusion that motions to decline future appointments are in essence motions to withdraw, which are governed by section 27.5303.”
Scope of relief: systemic vs. case-by-case. After reviewing some of its prior decisions, the Court stated: “The Third District’s conclusion that the courts cannot fashion an “office-wide solution” to the public defender’s excessive caseload does not comport with Florida case law. We have approved aggregate or systemic relief in a number of cases where public defenders were experiencing excessive caseloads or where the offices were underfunded.” The Court observed that it was “struck by the breadth and depth of the evidence of how the excessive caseload has impacted the Public Defender’s representation of indigent defendants” and stated that “[i]n extreme circumstances, where a problem is system-wide, the courts should not address the problem on a piecemeal case-by-case basis.” Accordingly, the Court “reaffirm[ed] that aggregate/systemic motions to withdraw are appropriate in circumstances where there is an office-wide or wide-spread problem as to effective representation.”
Standard applicable under section 27.5303. The Court addressed the standard for reviewing motions to withdraw under section 27.5303. After analyzing cases from Florida, other states, and the U.S. Supreme Court, the Court stated: “[W]e conclude that the prejudice required for withdrawal under section 27.5303 when it is based on an excessive caseload is a showing of ‘a substantial risk that the representation of [one] or more clients will be materially limited by the lawyer’s responsibilities to another client.’ R. Regulating Fla. Bar 4-1.7(a)(2). The records in the instant cases show competent, substantial evidence to support the trial courts’ findings and conclusions of law to that effect.”
Constitutionality of section 27.50303(1)(d). The Court found the statute to be facially constitutional, but noted that it “should not be applied to preclude a public defender from filing a motion to withdraw based on excessive caseload or underfunding that would result in ineffective representation of indigent defendants nor to preclude a trial court from granting a motion to withdraw under those circumstances.”
Standing of State Attorney’s Office. The Court concluded that the State had standing to challenge the motions filed by the Public Defender.
The Court remanded for a determination of whether “the circumstances still warrant granting the Public Defender’s motion to decline appointments in future third-degree felony cases under the standards approved in this decision.” 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]
Plaintiff’s action originally was filed by a California lawyer who was “unauthorized to practice in Florida but who had appropriate Florida counsel to assist.” Florida counsel became frustrated with the slow pace of the case and filed a motion to withdraw. Counsel for both sides stipulated to the withdrawal “stipulating that the Florida attorney would be replaced and a third amended complaint would be filed within thirty days of the order approving the stipulation. It was also agreed that if the complaint was not timely filed, the action would be dismissed with prejudice.”
A copy of the withdrawal order was sent to California counsel’s outdated address and so did not arrive until 5 days before the 30-day period had run. California counsel motion for an extension of time (accompanied by a proposed third amended complaint) was opposed by defense counsel, who moved to strike it. “The court struck the application, finding it was ‘filed by a non-Florida lawyer in violation of the rules and this Court’s order and is thus a nullity.’ The court then dismissed the action with prejudice.” Plaintiff appealed.
The Fifth DCA reversed, citing Torrey v. Leesburg Regional Medical Center, 769 So.2d 1040 (Fla. 2001), for the proposition that Plaintiff was not at fault and so the case should not have been dismissed. The appeals court noted 2 problems with the dismissal: “First, the record does not reflect that [Plaintiff] was ever notified by either of his attorneys about the withdrawal. Second, there is no indication that the court’s order permitting the withdrawal was provided to [Plaintiff].” 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).
Florida 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).
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