Commonwealth v. MageeCommonwealth v. Magee
Lead Opinion
OPINION BY
Appellants- Schindler Law Group, LLC, Thomas K. Schindler, Esquire, and John H. Pavloff, Esquire (collectively, “Schindler”) appeal. from the order denying Schindler’s motion to withdraw as criminal defense counsel for Brian Thomas Magee, Jr. We affirm. ' '
Magee was arrested and imprisoned in September 2015 for defrauding three customers by accepting deposits for home improvements and then failing, to perform the work.
Magee retained Schindler in October 2016. According to Schindler, its engagement letter stated that Schindler would represent Magee for a flat fee that did not include representation at trial, and that a separate engagement letter and an additional fee would be required for trial representation. Schindler’s Brief at 12.
On March 16,- 2016, Schindler moved for a temporary modification of Magee’s bail. Magee’s defense was that his failure to complete the work at the three victims’ homes was a breach of his contractual obligations, but not a criminal offense. Schindler claimed it could not prepare that defense without Magee’s help in gathering documents and other materials that were voluminous and had to be assembled and reviewed prior to trial. On May 4, 2016, the trial court modified Magee’s bail to allow his release to assist Schindler with trial preparation.
After several continuances, Magee’s trial was scheduled for October 31, 2016. The trial court summarized:
[Magee]’s cases were first listed for trial in December 2015 and subsequently continued by [Schindler] seven, times. Each time a Motion for Continuance was submitted, the reason given by [Schindler] was that more time was needed for review of [Magee]’s documents in preparation for trial. The last continuance request and Order dated August 12, 2016 states, “additional time needed for trial preparation; date certain for commencement, of trial: Tuesday, September 20, 2016; counsel attached for trial beginning on that date[J” The attorney -for the Commonwealth realized within a day or two of that Continuance Order that [he] was unavailable in September, so the' parties -agreed to a special listing for trial and attachment of counsel. That notice-of attachment for a four day trial commencing October 31, 2016 was sent to [Schindler], by Court. Administration on August 17,2016.
Trial Ct. Op., 11/16/16, at 2 (emphasis in original).
On October 14, 2016, two weeká before Magee’s trial was scheduled to begin, Schindler filed a motion to withdraw as Magee’s counsel. In that motion, Schindler represented that most, but not all, of the fixed fee under its letter agreement with Magee had been paid; it had offered to perform additional services for Magee, including trial representation, ‘ in exchange for an additional fee; and Magee had replied that he was ftriable to pay an additional fee. Mot. to Withdraw at ¶¶ 6,10,11. Schindler also averréd that it had “given reasonable warning” to Magee that if it did not receive an additional-fee, it would withdraw as counsel. Id. at ¶ 13, -
On October 18, 2016, the trial court held a hearing on Schindler’s motion to ■withdraw. Magee arrived late for the hearing.
When Magee arrived, Pavloff asked Ma-gee if he opposed Schindler’s motion, and Magee, responded, “No, not at all.” N.T., 10/18/16, at 9. Magee said that, starting the previous week, he had begun consultations with three other attorneys. Id. When the court asked how he could pay another attorney when he could not afford to pay Schindler, Magee responded, “Have to go to work.” Id, at 10. The trial court expressed concern that Magee would not be able to pay any attorney and would be ineligible for a public defender because he was working. Id.
The Commonwealth opposed the motion to withdraw because it would delay the trial. The Commonwealth pointed out that it had already subpoenaed twelve witnesses and would be ready for trial on the scheduled October 31, 2016 trial date. N.T., 10/18/16, at 5. The Commonwealth was not optimistic about a possible plea bargain. Id. At the end of the hearing, the trial court took the matter under advisement.
The next day, October 19, 2016, the trial court issued an order denying Schindler’s motion to withdraw. In a footnote, the trial court explained its reasoning, emphasizing the following facts:
1. [Schindler] stated to the court and averred in [its] Motion that [it] has been mostly compensated for [its] work to date. We note [Schindler] did not aver the sum owed, the sum paid, or the work that has not been compensated.[4 ]
2. [Schindler] seeks to withdraw two weeks prior to the commencement of a specially scheduled, discovery intensive jury trial set to commence on October 31, 2016. We note that the special date was issued to the parties on August 17, 2016.
3. [Schindler] does not state in [its] Motion how notice was given or when [it] gave notice to [its] client about [its] desire to withdraw and therefore, we cannot assess whether sufficient notice was given to [Magee]. Counsel did indicate that he was unaware of his client’s position on the Motion and therefore we can assume that he had not had any discussions with his client on the topic.
Order, 10/19/16, at 2-3. The court concluded that Schindler “waited until the last minute to make the court aware of [its] issues with [its] clifent,” and “failed to take steps to avoid the foreseeable prejudice of delaying trial, and delaying the ability of [its] client to employ other counsel prior to the jury trial date of October 31, 2016.” Id, at 3.
On October 27, 2016, Schindler filed a notice of appeal. By an order entered-December 13, 2016, this Court directed Schindler to show cause why the appeal should not be quashed as interlocutory. Schindler filed a response in which it contended that the trial court’s order denying the motion to withdraw was a collateral order appeal-able under Pa.R.A'P. 313. On January 6, 2017, this Court discharged the show-cause order and deferred resolution of the ap-pealability issue to this panel.
On February 6, 2017, Schindler filed its brief, in which it includes the collateral order issue as the first of three questions presented:
Does the Superior Court have jurisdiction to review the current matter as an appeal as of right from a collateral order pursuant to Pa.R.A.P. 313?
Did the lower court commit an error of law and/or an abuse of discretion when it failed to grant an unopposed Motion for Leave to Withdraw ás Counsel prior to trial where the undisputed testimony indicated that the client agreed and understood that: he had engaged Counsel only to represent him up to — but excluding trial, he had not paid Counsel in full under that original engagement, hád not retained Counsel for representation at' trial, and did not oppose Counsel’s withdrawal?
Did the lower court commit an error of law and/or an abuse of discretion when it denied Counsel’s Motion to Withdraw in a criminal matter on the basis of erroneous conclusions and inferences drawn from “omissions” in the factual record and its own conclusion, unsupported by the testimony presented, that the client was not given “reasonable warning” about Counsel’s intention to withdraw prior to the commencement of trial? ■
Schindler’s Brief at 10-11.
Jurisdiction
Schindler contends that the trial court’s order denying its motion to withdraw is a collateral order appealable under Rule' 313(b). The Commonwealth agrees. See Commonwealth’s Brief at 7-8.
The Supreme Court of Pennsylvania has explained:
Otherwise known as the collateral order doctrine,' [Appellate] Rule 313(b) provides that an interlocutory order is collateral and, therefore, immediately ap-pealable, if it is: “[1] separable from and collateral to the main cause of action where [2] the right involved is too important to be denied review and [3] the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost.”
K.C. v. L.A.,
Neither party has cited, nor have we found,' controlling authority addressing whether the denial of a petition to withdraw as counsel, based on a client’s inability to pay, is a collateral order under Rule 313. However, in Brown v. Pennsylvania R.R.,
Even though the often-used rationale for appealability that appellant has been put “out-of-court” is particularly inapt in the instant situation where appellant has actually been forced into court, it is apparent that as to him, the order is an absolute denial of the relief sought, and could never be raised at any other time if it were not appealable now. • ■ ■
Id. at 555 n.l.
Brown was decided before the Supreme Court of Pennsylvania adopted the collateral order doctrine.
In Commonwealth v. Wells,
Appellant’s claim that he is entitled to “conflict-free” PCRA counsel will not be irreparably lost ,if the order denying the Petition to Withdraw is not reviewed at this time. Since Appellant has a right of appeal if the PCRA court denies his petition, the order denying the Petition to Withdraw, and consequently the merits of the conflict issue, can be reviewed if or when Appellant flies an appeal from the court’s PCRA decision.
Id. at 731. Notably, the appeal in Wells was filed by the client (whose appellate rights would remain once a final judgment was entered), and not by the lawyer seeking to withdraw. In that connection, we have explained that “[t]he collateral order inquiry is necessarily dependent upon the party raising its application, as the questions asked relate directly to the party seeking an appeal.” Commonwealth v. Montgomery,
In Commonwealth v. Reading Group Two Properties, Inc.,
Unlike Wells[,} where a new hearing could be granted along with new counsel, the present controversy involves a matter where the- rights of counsel would be lost if the matter proceeded any further. ■
Once a final judgment is reached in the underlying action, the right of counsel to withdraw will become moot.
Id.
This case is similar to Reading Group, and although the Commonwealth Court’s decision is not precedential in this Court,
For the foregoing reasons, we agree with the parties that the order appealed from is an appealable collateral order. We therefore have jurisdiction over this appeal.
Petition to Withdraw
Turning to the merits of this appeal, we review a trial court’s denial of counsel’s petition to withdraw under the abuse of discretion standard. C.E. Williams Co. v. Henry B. Pancoast Co.,
Schindler contends that the trial court’s denial of its motion to withdraw was an abuse of discretion or an error of law because (1) Magee did not oppose the motion and “had three other attorneys lined up for possible representation at trial”; (2) its engagement by Magee was limited to pretrial matters and specifically excluded trial and post-trial representation; (3) Ma-gee had failed to fulfill his financial obligations under the letter agreement and told Schindler that he would not be able to fulfill them going forward; and (4) Schindler “continually notified Magee of his failure to meet [his] financial obligations and of Counsel’s intent to withdraw if the case went to trial without Magee retaining and paying Counsel for trial services.” Schindler’s Brief at 23-24. Schindler also argues that its withdrawal would result in only “a slight delay in the matter being called to trial” and would not cause prejudice to Magee. Id. at 24.
The Commonwealth argues that the trial court acted within its discretion in denying the petition to withdraw and emphasizes that (1) Schindler made no attempt to withdraw until two weeks before trial, even though a notice of attachment for a four-day trial was sent two months earlier; (2) Schindler sought and was granted numerous continuances to allow more time to prepare a defense and review documents; and (3) the Commonwealth had already subpoenaed numerous witnesses when Schindler filed its petition to withdraw. The Commonwealth asserts that “[h]aving to wait for [Magee] to find new counsel, and for that counsel to prepare for trial, would significantly burden the Commonwealth, and unduly delay trial[, especially in light of counsel’s indication of the amount of preparation and discovery required.” Commonwealth’s Brief at 14. The Commonwealth also contends that the hearing transcript demonstrates that Mr. Pavloff “was not clear about what type, if any, [of] notice he provided to his client about his withdrawal.” Id. at 16.
The trial court denied Schindler’s motion based on its finding that Schindler did not act “to minimize the inconvenience to the client due to [its] withdrawal.” Trial Ct. Op. at 5 (quoting Commonwealth v. Roman, Appeal of Zaiser,
While the court feels very strongly that lawyers are entitled to be compensated for their work, in this case, [Schindler] waited until the last minute to make the court aware of [its] issues with [its] client. Given that [Magee] has made payments to [Schindler], there is no reason to believe [Magee] will not pay [Schindler] in the future after [Magee] goes back to work. [Schindler] failed to take steps to avoid the foreseeable prejudice of delaying trial, and delaying the ability of ■ [its] client to employ other counsel prior to the jury trial date of October 31, 2016. There was sufficient time for [Schindler] to take the necessary steps when notice of counsel’s attachment for trial was given on August 17, 2016, a date agreed to after extensive discussion between the parties and the court, over the course of months, as to the need for a special listing of this four day trial because of the number of witnesses involved and the complexity of the case.
Id. at 5-6.
The Rules of Criminal Procedure provide that an attorney for a defendant may not withdraw without leave of court. Pa. R.Crim.P. 120(B)(1).
The court must make a determination of the status of a case before permitting counsel to withdraw. Although there are many factors considered by the court in determining whether there is good cause to permit the withdrawal of counsel, when granting leave, the court should determine whether new counsel will be stepping in or the defendant is proceeding without counsel, and that the change in attorneys will not delay the proceedings or prejudice-the defendant, particularly concerning time limits. In addition, case law suggests other factors the court should consider, such as whether (1) the defendant has failed to meet his or 'her financial obligations to pay for the attorney’s services and (2) there is a written contractual agreement-between counsel and the defendant terminating representation at a specified stage in the proceedings such as sentencing....
Pa.R.Crim.P. 120, Cmt. This Court has said:
No brightline rules exist to determine whether a trial court has abused its discretion in denying a Petition to Withdraw as counsel. A balancing test must be utilized to weigh the interests of the client in a fair adjudication and the Commonwealth in the efficient administration of justice. Thus, a resolution of the problem turns upon a case by casé analysis with particular attention to the reasons given by the trial court at the time the request for withdrawal is' denied. ■
Sweeney,
In several cases, we have reversed the denial of an attorney’s motion to withdraw based on nonpayment of fees. For example, in Scheps, although .there was no majority opinion, explaining..the court’s rationale, two of .the three judges on the panel agreed that the trial court erred in denying an attorney’s motion to withdraw. See Scheps,
In the lead opinion in Scheps, Judge Cercone concluded that the attorney’s withdrawal was mandatory under the Disciplinary Rules because Scheps had discharged him, and the trial court had no discretion to deny the motion. Scheps,
In Sweeney, this- Court held that the trial court abused its discretion in denying an attorney’s petition to withdraw. See
We agree that desertion of a client is abhorrent to the spirit of the legal profession. It may also form the basis of a later collateral claim of ineffectiveness. We also consider the trial court’s regard for the post-sentence rights of appellant laudable. Unfortunately, however, in the midst of its concern for Sweeney’s right to competent appellate counsel, the cost of transcripts and records to the taxpayers of Crawford County and the.length of time elapsing before any new. counsel could familiarize himself with the case, the trial court ... overlooked the one crucial factor which goes to the heart of the instant appeal and upon which appellant premised his plea to withdraw from further representation. That is, the trial court failed to consider the economics of appellant’s continued representation.
The trial- court insisted-that appellant continue to represent Sweeney on appeal without appointment or further compensation. The trial court’s predicate for this flows from its belief that because “Mr. Ambrose [appellant herein] received a substantial fee .,. the interests of justice require that Mr. Ambrose continue through the appellate stage.” This conclusion, however, finds no support in the record.
Id. at 477 (citation omitted).
We also held that the trial court abused its discretion in denying an attorney’s petition to withdraw in Roman,
By contrast, in Commonwealth v. Ford,
After careful consideration, we conclude that the trial court did not abuse its discretion in denying Schindler’s motion to withdraw after weighing the. intérests' of all parties. Like the trial court, we are sympathetic to Schindler’s financial concerns; however, “the interests of the attorney are but one factor” to consider in assessing a motion to withdraw. See Ford,
We agree with the trial court that this case is distinguishable from Scheps, Sweeney, arid Roman because Schindler did not take steps to minimize the prejudice to Magee. See Trial Ct. Op. at 5. Although Magee said he did not oppose Schindler’s motion, he was placed in the position of searching for new counsel just. a week before Schindler’s motion was heard. At the time of the hearing, just two weeks before the scheduled start of trial, Magee had not retained replacement counsel and was unable to state how he planned to pay for new counsel.
Moreover, it was appropriate for the trial court to consider the interests of the Commonwealth in the “efficient administration of justice.” Sweeney,
.Here, unlike in Roman, Sweeney, and Scheps, Schindler “failed to take steps to avoid the foreseeable prejudice of delaying the trial.” Rather, Schindler waited until just two weeks before the scheduled start of trial — at a time when the Commonwealth was ready to proceed as scheduled — to notify the court and the Commonwealth of its concerns regarding nonpayment. Trial, Ct. Op. at 5. In the cases in which we have held that withdrawal should have been permitted, the trial court was not placed in such a last-minute situation. See Roman,
On these facts, the trial court was not required to deny Schindler’s request to withdraw, but it also was not required to grant it. Having discerned no abuse of the trial court’s discretion, we affirm the trial court’s order denying the motion to withdraw.
Order affirmed.
Judge Bowes joins the opinion.
Judge Platt files a concurring and dissenting opinion.
Notes
. More specifically, he was charged With home • improvement fraud,’ 73 P.S. § 517.8(a)(1) & (2), and theft by deception, 18 ■ Pa. C.S. § 3922(a)(1). - ..
. The engagement letter is not in the certified record or the reproduced record, and although Schindler purports to quote the letter in its brief, we may not consider it in that form. See Commonwealth v. Preston,
, The hearing had originally been scheduled for November 7, 2016; it was rescheduled on . October . 17, 2016. Schindler, informed Magee of the change, and he indicated that he .would "do[] his best to get [there].” N.T., 10/18/16, at 2.
. In its brief to this Court, Schindler states that when it filed its motion to withdraw, Magee had paid it $3,225 and owed $1,150, and that the cost of trial would be approximately $8,000 to $10,000, without costs and expenses. Schindler's Brief at 13, 16. These figures were not provided to the trial court, and we therefore will not consider them in determining whether the trial court erred. See Commonwealth v. Wrecks,
. The trial court’s opinion does not address •this issue.
. The Court adopted the collateral order doctrine in Bell v. Beneficial Consumer Discount Co., 465. Pa. 225,
. Although there was no majority opinion in Scheps, all members of the panel agreed that the appeal was properly before the court. See Scheps,
. See, e.g., Petow v. Warehime,
. We are aware that this result does not come without costs. Under Appellate Rule 1701, a trial court normally loses jurisdiction once an appeal is filed. Although Rule 1701(c) permits the trial court to continue to act on those parts of a case that are separate from the issue on which a collateral-order appeal is taken, an order regarding who may be counsel in a case is not likely to be so unrelated to the remaining parts of the case as to permit the rest of the trial court proceedings to move forward. See generally Commonwealth v. McClure,
, Rule 120(A)(4) states, "An attorney who has been retained or appointed by the court shall continue such representation through direct appeal or until granted leave to withdraw by the court pursuant - to paragraph (B).” Rule 120(B)(1) then states, “Counsel for á defendant may not withdraw his or her appearance except by leave of court.”
. Judge Cercone relied on Rule 2-110 of the Pennsylvania Code of Professional Responsibility. The Code of Professional Responsibility has been replaced by the Rules pf Professional Conduct, which also contain a provision requiring that a lawyer withdraw when discharged by. a client, See Pa. R. ProfT Conduct 1.16(a)(3). The Rules also state that a lawyer may withdraw if- "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[.]” Id. 1.16(b)(5).
. The client was a fugitive when the attorney filed his motion.
. In its Statement of Questions Presented, Schindler suggests that the trial court made "erroneous conclusions and inferences drawn from 'omissions’ in the factual record and its own conclusion, unsupported by the testimony presented, that [Magee] was not given 'reasonable warning’ about Counsel’s intention to withdraw prior to the commencement of trial[.]” Schindler’s Brief at 10-11. As we previously stated, we are limited to considering only the "evidence presented to the trial court; we may not consider additional assertions that appear only in Schindler’s brief regard: ing discussions with Magee. See Wrecks,
Concurrence Opinion
CONCURRING AND DISSENTING OPINION BY
I respectfully concur in part and dissent in part. Although I agree with the learned Majority that the trial judge did not abuse her discretion in denying Appellants’ motion to withdraw from representation of defendant Magee,
Under the collateral order doctrine as set forth in Pennsylvania Rule of Appellate Procedure 313, “an order is immediately appealable if (1) it is separable from and collateral to the main cause of action; (2) the right involved is too important to be denied review; and (3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost.” In re N.B.,
The collateral order doctrine is a specialized, practical application of the general rule that only final orders , are ap-pealable as of right. Thus, Rule 313 must be interpreted narrowly, and the requirements for an appealable collateral order remain stringent in order to prevent undue corrosion of the final order rule. To that end, each prong of the collateral order doctrine must be clearly present before an order may be considered collateral.
Melvin v. Doe,
I would find that orders denying motions to withdraw are neither “separable from [nor] collateral to the máin cause of action” when the filing of such motion defeats an imminent trial listing.
The instant case is illustrative of how the right to an appeal would allow counsel to negate the trial court’s decision and delay an impending trial. Here, Appellants (after obtaining modification of defendant’s bail permitting'his release to assist in his defense) obtained seven continuances of trial. On August 17, 2016, the trial court issued notice of attachment for trial commencing October 31, 2016. Appellants, claiming to have been retained to represent defendant up to, but not including trial, filed a motion to withdraw two weeks prior to the date trial was to commence. The trial court denied the motion to withdraw, finding that Appellants had created their own emergency and “failed to take steps to avoid the foresee-' able prejudice of delaying trial, and delaying the ability of his client to employ other counsel prior to the jury trial date[.]” (Trial Court Opinion, 11/16/16, at 5; see also Maj. Op., at 322)., Simply: by filing an appeal of the trial court’s motion, however, Appellants have been able to obtain a thirteen-month delay of trial during the pen-dency of this appeal,
Therefore, I would conclude that the order in this case denying Appellants’ petition to withdraw is not separable from and collateral to the main cause of action, and thus, is not a collateral order appealable as-of right under Rule 313. See Melvin, supra at 46-47; In re N.B., supra at 534. Consequently, I would quash this appeal as interlocutory. ' •
Accordingly, I réspectfully concur in part and dissent in part.
. (See Majority Opinion, at 325-27).
. I believe the learned Majority’s expectation that counsel will riot make withdrawal motions in bad faith is naively optimistic and not a proper foundation for the establishment of a general prophylactic rule. (See Maj. Op., at 321-22 n.9).