Thursday, January 24, 2013
In yesterday’s post, Why Has the Defense Team Gone Silent in the Trayvon Martin Murder Case? I summarized the status of the defense case and warned,
Do not be surprised if the engine starts smoking and the wheels fall off forcing someone to announce that they have decided they need to spend more time with their family.
In today’s post, I will discuss the issues Judge Nelson would have to consider in determining whether to grant a motion to withdraw by defense counsel. I will also discuss what might happen if he were to claim indigence.
As you read the post, please keep in mind that this is a teaching exercise. I do not believe that Mark O’Mara or Don West has filed a motion to withdraw. I do not know them personally and have not had any contact with them or anyone else connected to defense team. The same applies to the possibility that the defendant might claim indigence.
The first rule is that a lawyer cannot withdraw from representing a client in a pending case without the court’s permission. This rule applies regardless whether the client retained the lawyer or the court appointed the lawyer to represent the client at public expense.
We have an unusual wrinkle in this case because the lawyers claim they are working pro bono (i.e., for free) and have not been paid for their work. I use the word “unusual” because lawyers occasionally offer to work for free as a public service or as a favor for someone they know. I did this throughout my career because my primary motivation was to be of service to others, rather than make a lot of money, and most of my clients were from the poor and marginalized groups of society.
Judges do not care about the fee arrangements between a client and a lawyer in criminal cases. They just want to make certain that every defendant charged with a felony is represented by a lawyer throughout the case.
A lawyer officially announces that she is representing a client by filing a Notice of Appearance in the case and serving opposing counsel with a copy. From that point forward, the lawyer cannot withdraw without the court’s permission.
As a general rule, judges will permit lawyers to withdraw, if another lawyer has agreed to take over the case and the substitution of counsel can be accomplished without continuing the trial date. As you might expect, the more complicated the case and/or closer the trial date, the less likely the court will grant a motion to withdraw.
Pursuant to the Right-to-Counsel Clause in the Sixth Amendment and the Due Process Clause in the Fifth and Fourteenth Amendments, the Court must appoint counsel to represent an indigent defendant at public expense. Approximately 80% of the defendants in felony criminal cases are indigent and qualify for court appointed counsel. If a defendant qualifies to be represented by counsel at public expense, he also qualifies for the assistance of investigators and expert witnesses at public expense upon a showing by the lawyer that such services are reasonably necessary to prepare a defense and defend the client.
Parenthetically, the 80% figure is about all you need to know in order to conclude that the criminal justice system in this country is a war against the poor and the marginalized.
Public defender offices exclusively devoted to representing indigent defendants in criminal cases exist in most urban areas. They are staffed by lawyers, investigators, paralegals and other support staff. They contract with the courts to represent indigent defendants and they are paid an agreed amount per case regardless whether the case is contested and goes to trial or the defendant pleads guilty.
In rural and less populated counties where no public defender office exists, the courts use a competitive bidding process to select a private law firm to represent indigent defendants. The partners continue to handle their civil cases and usually hire lawyers to handle the criminal cases. This type of arrangement is problematic because the partners usually lack experience in criminal cases and the lawyers they hire to handle the cases have even less experience. The firm pockets the difference between the contract price and the salaries that it pays its inexperienced staff of lawyers. Needless to say that the quality of legal representation pursuant to these contracts is far from optimal.
Under both systems the courts occasionally have to appoint private counsel to represent indigent defendants. For example, when there are codefendants, each defendant must be represented by independent counsel (i.e., to avoid a potential conflict of interest, a public defender office or firm cannot represent more than one client in a case). Courts generally keep a list of lawyers in private practice who have agreed to accept appointments to represent indigent clients and they assign lawyers from that list.
Depending on the type of case, particularly if it requires special knowledge and expertise such as a death penalty cases, the courts create lists of private counsel with the requisite knowledge and experience to handle those cases. For example, the Washington State Supreme Court screened my application and listed me as qualified me to be appointed to serve as lead counsel in death penalty case.
When private counsel are appointed to represent indigent clients, they are compensated at a reduced hourly rate far below what a client would pay in a privately retained case. For example, I recall working for $50/hour in a death penalty case while charging a private client $350/hour.
Now, let us take a look at the fogen’s case. We do not know how much money has been contributed to his internet account, but Mark O’Mara has stated that contributions have slowed to a trickle and the balance in the account is down to approximately $15,000.
According to my own rough estimate, more than $200,000 has been spent on creditors, housing, food and security for the fogen and his wife. None of those expenses qualify as defense costs, in my opinion, even though the fogen solicited them to pay for his defense. I imagine that the donors are not happy about the way he spent their money, but I do not believe they are likely to sue him for fraud to get their money back.
Is he indigent? I believe he is, assuming donations have dried up. $15,000 is nowhere near enough money to pay counsel, investigators, experts and the costs of litigation. The court could appoint counsel at public expense and recoup a portion of what that might cost from the trust account.
Will the court permit O’Mara or West to withdraw? I believe Judge Nelson would be extremely reluctant to permit both to withdraw, but I think she would permit one to withdraw, if the other agreed to remain. I doubt she would appoint two lawyers.
The trial date is only five months away and I doubt any lawyer would agree to be appointed, unless the trial were continued. I suspect the prosecution would object to a continuance and Judge Nelson would be reluctant to grant one.
As I said at the beginning, it’s usually pretty easy to get out early in the case, but we are almost a year into this case. Therefore, Judge Nelson is going to require a showing of necessity before she will grant a motion to withdraw. She might let O’Mara or West out of the case upon a showing of financial necessity because she is not going to want to force either of them into bankruptcy. That would be tantamount to slavery.
Assuming one or both remain, would Judge Nelson appoint them and order that they be paid at public expense? I certainly would do that, if I were the judge. No one should have to work for free. They would, of course, be compensated at the standard reduced rate. It may not be much, but it would be better than nothing.
What would happen if the fogen were to attempt to fire them, declare indigency and seek new counsel. I think Judge Nelson would require him to show that the attorney-client relationship was irretrievably broken, as this is the legal test. Whether he could satisfy that test is unknown.
If he cannot, he would be stuck with them, unless he decided to go pro se and represent himself. He has a constitutional right to do that although he would be a fool to try it.
To summarize, I think we will see a defense request for an order declaring him indigent and appointing present counsel to represent him at public expense. I do not know if Judge Nelson would appoint both lawyers or only one. Her decision would depend on the court’s existing policies.
I would not be surprised to see one lawyer ask to withdraw while the other agrees to remain. I believe Judge Nelson would grant that request since it would not require a continuance.