TERMINATING REPRESENTATION: ETHICAL AND LEGAL DUTIES OF CJA COUNSEL. March 2, 2011 CLE. Sponsored by Federal Defender Services of Wisconsin, Inc.

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1 TERMINATING REPRESENTATION: ETHICAL AND LEGAL DUTIES OF CJA COUNSEL March 2, 2011 CLE Sponsored by Federal Defender Services of Wisconsin, Inc. Presented and Moderated by Robert T. Ruth I. MOTION TO WITHDRAW AS COUNSEL IN DISTRICT COURT In almost all CJA appointed cases the lawyer and client are thrust upon each other. This can create tension from the beginning. The client may not be happy about the federal charge and might wish that he was in a position to hire a real lawyer. In my opinion, CJA appointed counsel has a duty to try to get along with the client, even the client who starts out with a chip on his shoulder about appointed counsel. Sometimes, however, try as you may, it does not work out. If it does not work out to the point that the client fires you or there is a total lack of communication, you need to file a motion to withdraw. a. Ex Parte communication SCR 20:3.5 provides in relevant part as follows: A lawyer shall not b) communicate ex parte with [a judge, juror, prospective juror or other official] except as permitted by law or for scheduling purposes if permitted by the court. If 1

2 communication between a lawyer and judge has occurred in order to schedule a matter, the lawyer involved shall promptly notify the lawyer for the other party or the other party, if unrepresented, of such communication; or. SCR 20:1.6(a) provides that A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation The CJA lawyer who moves to withdraw needs to perform a balancing act between maintaining the confidentiality of client communications and providing the information necessary to move to withdraw. This is accomplished, at least in the Western District of Wisconsin, by filing the motion to withdraw ex parte. No case in the Seventh Circuit appears to expressly require or permit that the motion to withdraw and hearing on it occur ex parte. Several cases, however, suggest approval of having the matter heard ex parte. See United States v. Bjorkman, 270 F.3d 482, 500 (7 th Cir.2001)( Here, the district court conducted an ex parte hearing to address [the defendant s] concerns ); See also United States v. Horton, 845 F.2d 1414, 1417 (7 th Cir.1988)(The defendants at the ex parte hearing revealed that they were embroiled in an irreconcilable conflict. ). 2

3 I informally asked Judge Crocker his view on this. He could not think of a case or a specific rule that mandated for or against filing motions to withdraw ex parte. Judge Crocker, however, said that he always accepts and hears motions to withdraw ex parte more or less as a matter of common sense. Hearing the matter ex parte is the best the court can do to protect the confidentiality of attorneyclients communications. Problems between CJA counsel and the client are really none of the government s business. Between the SCR 20:1.6(a) s duty of confidentiality, the above Seventh Circuit cases and Judge Crocker s practice of handling motions to withdraw ex parte, it appears that the except as permitted by law requirement of SCR 20:3.5(b) is met and that motions to withdraw are properly filed ex parte. b. Contents of a motion to withdraw in the district court. In the typical case, motions to withdraw in the Western District do not require much detail and, indeed, to preserve confidentiality as much as possible they should not contain too much detail. A simple assertion that the client discharged the lawyer will usually suffice or that the communication has collapsed between the lawyer and client. The motion needs to provide some reason, but it does not need to 3

4 provide the specific details. At the hearing, Judge Crocker will discuss confidentiality with the client and invite the client to express his grievance. Crocker will try to mend the relationship, but he does not push too hard. If the client insists on a new appointed lawyer and has not already discharged one, even if he really does not have a good reason, Crocker generally lets him have his way. Here are three examples of the motions to withdraw filed in the Western District: First Example (Name of Defendant) moves for an order permitting (Name of Attorney) to withdraw as counsel. (Defendant) sets forth as follows: The court appointed (Name of Attorney) to represent (Name of Defendant) pursuant to the Criminal Justice Act. On (Date), (Name of Defendant) discharged (Name of Attorney) as his attorney. The Wisconsin Supreme Court Rules require that a lawyer shall not represent a client or, where representation has commenced, shall withdraw from representation of a client if the lawyer is discharged. See SCR 20:1.16(a)(3). ACCORDINGLY, (Name of Defendant) requests an ex parte hearing as soon as 4

5 possible whereat he may explain his grievance to the court. Second Example (Name of Defendant) moves for an order permitting (Name of Attorney) to withdraw as counsel. (Name of Defendant) sets forth as follows: The court appointed (Name of Attorney) to represent (Name of Defendant) pursuant to the Criminal Justice Act. (Name of Defendant) and (Name of Attorney) have suffered a major breakdown in communication. The breakdown in communication is so significant that it prevents counsel from providing adequate representation. ACCORDINGLY, (Name of Defendant) requests an ex parte hearing as soon as possible whereat the court may examine the breakdown in communication in detail. Third Example (Name of Defendant) moves for an order permitting CJA appointed attorney (Name of Attorney) to withdraw as counsel. Counsel and (Name of Defendant) have arrived at an irreconcilable dispute about how to proceed in the case. (Name of Defendant) requests an ex parte hearing as soon as possible whereat the court may examine the grounds for the motion. 5

6 At the ex parte hearing, Crocker offers counsel the chance to respond to the client s complaint, but does not require it. This is where counsel needs to be particularly careful. Crocker assures me that he does not hold against the lawyer a client complaint in a motion to withdraw hearing. Still, it is hard to sit by idly if a client trashes you unfairly. SCR 20:1.6(c)(2) provides that A lawyer may reveal such information to the extent the lawyer reasonably believes necessary: to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; This rule opens the door to a response to a client allegation about the lawyer s representation, but only if a response is reasonably necessary. 6

7 II. APPEAL OF THE DENIAL OF A MOTION TO WITHDRAW. Motions to withdraw are granted with relative ease in the district court. If the motion is denied in the district court, however, it is nearly impossible to go anywhere with it in the court of appeals. In any event, if you need to file a motion to withdraw that risks denial in the district court, it is helpful to understand how it will be reviewed in the Seventh Circuit, if for no other reason, so that you can present the motion in the district court with the best chance on appeal. a. Standard of review-abuse of discretion If the defendant has been given an opportunity to explain to the court the reasons behind his request for substitute counsel, we review the denial of that request only for an abuse of discretion. United States v. Bjorkman, 270 F.3d 482, 500 (7 th Cir. 2001), citing United States v. Golden, 102 F.3d 936, 940 (7th Cir.1996). b. Test applied by appellate court in review of denial of motion to withdraw The Seventh Circuit applies the following test to the review of a motion to withdraw as counsel: (1) the timeliness of the motion; 7

8 (2) the adequacy of the court's inquiry into the defendant's motion; (3) whether the conflict was so great that it resulted in a total lack of communication preventing an adequate defense. United States v. Bjorkman, 270 F.3d 482, 500 (7 th Cir.2001), citing United States v. Zillges, 978 F.2d 369, 372 (7th Cir.1992). i. Timeliness Motions to withdraw received after the plea hearing present a timeliness problem. See Bjorkman, 270 F.3d at ( we have never found such a request timely when it was made after the entry of a guilty plea and shortly before sentencing.); See also United States v. Hall, 35 F.3d 310, (7th Cir.1994)(request for substitution untimely when it was made after plea hearing and ten days before sentencing hearing). Motions made during the trial also present a timeliness problem. See United States v. Wilks, 46 F.3d 640, 643 (7th Cir.1995) (motion for new counsel untimely when not raised prior to commencement of second trial); See also United States v. Huston, 280 F.3d 1164, 1167 (7th Cir.2002) (affirming court's denial of motion for new counsel where defendant conceded that motion was untimely when made on the morning of the trial, and commenting further that 8

9 lack of genuine motive combined with timing could have resulted in outright dismissal of motion for untimeliness); United States v. Tolliver, 937 F.2d 1183, (7th Cir.), cert. denied, 502 U.S. 919 (1991) (mid-trial request for continuance so pro se defendant could obtain counsel untimely); Wilks, 46 F.3d at 643 (finding timing of request for new counsel made during opening statement "questionable to say the least"). Motions made at least a month or more before trial, however, are generally considered timely. See Zillges, 978 F.2d at 372 (motion to withdraw made more than one month before trial considered timely. See also United States v. Brown, 79 F.3d 1499, 1506 (7th Cir.), cert. denied, 519 U.S. 875 (1996)(motion made two months prior to trial timely). ii. Court s inquiry into grounds for substitution The court only needs to inquire into the major reasons for why new counsel is sought. See United States v. Harris, 394 F.3d 543, 554 (7 th Cir.2005)( Although the colloquy [in this case] may not be a model of probing inquiry the court of appeals affirmed when the district court elicited from [the defendant] all the major reasons he sought new counsel. ). It is not enough, however, for the court to 9

10 merely question the defendant on how he is satisfied with counsel. See Zillges, 978 F.2d at ( Although the district court did engage in an initial inquiry into Zillges's complaint, the court sought to elicit a general expression of satisfaction on the part of Zillges with his trial counsel rather than reasons for his dissatisfaction with counsel. In this instance the district court was obliged to make a more thorough investigation of the apparent conflict between the defendant and his attorney in order to protect the integrity of Zillges's Sixth Amendment right to counsel. Given the lack of detail in Zillges's complaint, the absence of a more thorough inquiry by the district court constitutes an abuse of discretion. ). iii. Level of breakdown in communication Unless there is a demonstrated conflict of interests or counsel and defendant are embroiled in an "irreconcilable conflict" that is "so great that it resulted in a total lack of communication preventing an adequate defense," there is no abuse of discretion in denying a motion for new counsel. United States v. Morris, 714 F.2d 669, 673 (7 th Cir.1983). The client s general distrust of the lawyer is not a sufficient breakdown in communication. See id. at 673 (the denial of a motion 10

11 to substitute is not reversible error when the motion only alleges "ethereal distrust" of counsel). "Personality conflicts and disagreements over trial strategy" do not require substitution of counsel. United States v. Hillsberg, 812 F.2d 328, (7 th Cir.1987)(quoting United States v. Davis, 604 F.2d 474, 479 (7th Cir.1979)). A communication breakdown that is the result of the client stonewalling the lawyer is not sufficient to require substitution of counsel. See United States v. Horton, 845 F.2d 1414, 1418 (7 th Cir.1988)(the denial of a substitution request affirmed based on magistrate judge s finding that the communication barrier between client and counsel was primarily the result of the client s refusal to cooperate with counsel and his stonewalling effort to select counsel of his own choice.). The fact that counsel makes appropriate filings and objections weighs in on the question of whether the communication breakdown requires new counsel. See Bjorkman, 270 F.3d at 501 (The fact that counsel had filed extensive objections to the presentence report was considered strong evidence that, notwithstanding their protestations to the contrary, [counsel and the defendant] were able to 11

12 communicate sufficiently to present an adequate defense, even after the plea hearing. ). c. Abuse of discretion-harmless error The denial of a motion for substitution of counsel will be upheld, despite an abuse of discretion, if the district court's error was harmless. Morrison, 946 F.2d at 499. The essential aim of the [Sixth] Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers. Wheat v. United States, 486 U.S. 153, 159 (1988). III. Withdrawal as counsel in the Court of Appeals If you do not want to handle the appeal in a CJA case, make a motion to the Seventh Circuit within 10 days of filing the notice of appeal. Circuit Rule 51 sets forth the authority for the motion. These motions are freely granted. The Seventh Circuit maintains a CJA panel for appointments in these cases or the case gets appointed to the Federal Defender in Peoria. The motion or affidavit in support of it does not need to state a reason, but it should satisfy the court that counsel took the steps necessary to get the appeal rolling. Here is an 12

13 example of the narrative of a motion and affidavit that I recently filed and the court granted. Motion PLEASE TAKE NOTICE that the defendantappellant, by attorney Robert T. Ruth, hereby moves to withdraw as counsel in the present appeal. This motion is supported by the attached affidavit of Robert T. Ruth. Affidavit The district court granted pauperis status to the defendant and appointed me as counsel. I filed notice of appeal and docketing statement on about August 16, At the same time I ordered the transcripts from the district court proceedings and made payment arrangements by submitting the appropriate CJA forms. Finally, attached hereto is a copy of the transcript information sheet submitted to the court reporters. Circuit Rule 51 also spells out the process for withdrawing as counsel in the case where you need to withdraw because the case lacks merit. The basic procedure is to file an Anders brief and a motion to withdraw. The brief needs to include proof of service on the client which indicates the client s current address. After the 10 days granted under Circuit Rule 51 expire, except for an Anders brief, 13

14 the Seventh Circuit is generally not inclined to grant a motion to withdraw. IV. DUTIES OF CJA COUNSEL AFTER AN ADVERSE DECISION IN THE COURT OF APPEALS The Seventh Circuit spells out the duties of appointed counsel after an adverse decision as follows: After an adverse decision on appeal by this Court, appointed counsel shall advise the defendant in writing of his right to seek review of such decision by the Supreme Court of the United States. If, after consultation (by correspondence, or otherwise), the represented person requests it and there are reasonable grounds for counsel properly to do so, the appointed attorney must prepare and file a petition for writ of certiorari and other necessary and appropriate documents and must continue to represent the defendant until relieved by the Supreme Court. Counsel who conclude that reasonable grounds for filing a petition for writ of certiorari do not exist must promptly inform the defendant, who may by motion request this Court to direct counsel to seek certiorari. Seventh Circuit Criminal Justice Act Plan, V.3 What are reasonable grounds to file either a motion for rehearing or a petition for certiorari? Before you decide you should look at the Federal Rules of Appellate Procedure, Supreme Court Rules and a few Seventh Circuit cases. 14

15 Rule 40 of the Federal Rules of Appellate Procedure provides that a petition for rehearing must state with particularity each point of law or fact that the petitioner believes the court has overlooked or misapprehended and must argue in support of the petition. Thus, not every case that merits a petition for writ of certiorari merits a petition for rehearing. A petition for rehearing is not the place to reargue the case. It is only intended as an opportunity to point out what the court overlooked or misapprehended. Rule 10 of the Supreme Court Rules states that a petition for writ of certiorari will only be granted for compelling reasons. The Rule provides examples of compelling reasons, like conflict between federal appellate courts, conflict between decision and Supreme Court precedent or a conflict with state court of last resort, but the list of examples is not controlling or exhaustive. The Rule also provides that A petition for a writ of certiorari is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law. It does not, however, eliminate factual errors as a basis for filing a petition either. A defendant has a statutory right to counsel in a petition for writ of certiorari based on the Criminal Justice Act, 18 U.S.C. 15

16 3006A. Wilkins v. United States, 441 U.S. 468, 469 (1979) (per curiam). If court-appointed counsel fails to timely file a petition for writ of certiorari despite a defendant's written request, the remedy is for the court of appeals to appoint counsel, vacate its judgment, and enter a new one so that the defendant has the opportunity to timely file a petition with counsel. Wilkins, 441 U.S. at 469, 99 S.Ct One basic principal of appellate practice is that counsel, even CJA appointed counsel, is responsible for deciding which issues to raise on appeal. Counsel does not need to raise every meritorious issue, either. Thus, a CJA appointed appellate attorney may decide, for strategic reasons, to forgo a weak issue on appeal in favor of a stronger one. This principal of appellate practice, however, is not so clear when it comes to whether to petition for rehearing or certiorari. See United States v. Hawkins, 505 F.3d 613 (7 th Cir. 2007). Hawkins s counsel appealed the denial of a motion to suppress based on a showup identification shortly after the defendant s arrest. The Seventh Circuit affirmed. Counsel notified Hawkins of his right to file a petition for rehearing or certiorari, but also told him that she thought that there was no reasonable basis for either petition. Hawkins insisted that counsel file the petitions. Thus, 16

17 counsel moved to withdraw in the court of appeals. In the motion, she stated that the case was decided primarily on factual rather than legal grounds, the opinion was without dissent and it identifies no split of authority that would tend to suggest that rehearing or Supreme Court review are warranted. The court granted the motion to withdraw, but appointed successor counsel to review whether to petition for rehearing or certiorari. The court reasoned as follows: In this case, however, given the nature of the claim raised on appeal and the conclusory nature of appointed counsel's submission, I cannot accept, at this point, counsel's submission that a petition for rehearing would necessarily be frivolous in this case. The motion to withdraw states in conclusory fashion that there was no dissent from the panel's holding, that the case was decided on largely factual, as opposed to legal, grounds, and that the opinion identifies no split in authority. Counsel is correct that the fairness of a showup identification is necessarily a factbased inquiry, but factual distinctions in such cases are very important in assessing whether the procedure was a fair one. The papers before me demonstrate no effort on the part of counsel to come to grips with existing case law or with the panel's analysis. Neither do they demonstrate why a petition for rehearing necessarily would be frivolous. Cf. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); United States v. Schuh, 289 F.3d 968, (7th Cir.2002). Hawkins, 505 F.3d at

18 V. Wisconsin Rules of Professional Conduct related to attorney withdrawal SCR 20:1.16. Declining or Terminating Representation (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (1) the representation will result in violation of the Rules of Professional Conduct or other law; (2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or (3) the lawyer is discharged. (b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or if: (1) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent; (2) the client has used the lawyer's services to perpetrate a crime or fraud; (3) a client insists upon pursuing an objective that the lawyer considers repugnant or imprudent; 18

19 (4) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; (5) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or (6) other good cause for withdrawal exists. (c) When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation. (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law. 19

20 SCR 20:1.6. Confidentiality (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in pars. (b) and (c). (b) A lawyer shall reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to prevent the client from committing a criminal or fraudulent act that the lawyer reasonably believes is likely to result in death or substantial bodily harm or in substantial injury to the financial interest or property of another. (c) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to prevent reasonably likely death or substantial bodily harm; (2) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services; (3) to secure legal advice about the lawyer's conduct under these rules; (4) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the 20

21 lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or (5) to comply with other law or a court order. SCR 20:3.5. Impartiality and decorum of the tribunal A lawyer shall not: (a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law; (b) communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order or for scheduling purposes if permitted by the court. If communication between a lawyer and judge has occurred in order to schedule the matter, the lawyer involved shall promptly notify the lawyer for the other party or the other party, if unrepresented, of such communication; (c) communicate with a juror or prospective juror after discharge of the jury if: (1) the communication is prohibited by law or court order; (2) the juror has made known to the lawyer a desire not to communicate; or (3) the communication involves misrepresentation, coercion, duress or harassment; or (d) engage in conduct intended to disrupt a tribunal. 21

22 SCR 20:1.7. Conflicts of interest current clients (a) Except as provided in par. (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. (b) Notwithstanding the existence of a concurrent conflict of interest under par. (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in a writing signed by the client. 22

23 SCR 20:3.1. Meritorious claims and contentions (a) In representing a client, a lawyer shall not: (1) knowingly advance a claim or defense that is unwarranted under existing law, except that the lawyer may advance such claim or defense if it can be supported by good faith argument for an extension, modification or reversal of existing law; (2) knowingly advance a factual position unless there is a basis for doing so that is not frivolous; or (3) file a suit, assert a position, conduct a defense, delay a trial or take other action on behalf of the client when the lawyer knows or when it is obvious that such an action would serve merely to harass or maliciously injure another. (b) A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in deprivation of liberty, may nevertheless so defend the proceeding as to require that every element of the case be established. SCR 20:8.4. Misconduct It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b) commit a criminal act that reflects adversely on the lawyer's honesty, 23

24 trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) state or imply an ability to influence improperly a government agency or official; (e) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law; or (f) violate a statute, supreme court rule, supreme court order or supreme court decision regulating the conduct of lawyers. (g) violate the attorney's oath. 24