*1 given by the court, trial are satisfied the court did not err in refusing to grant a mistrial.
Finally, appellant Bland asserts that his trial was commenced beyond the 180 day mandate of Pa.R.Crim.P. 1100. We decline to address the merits of this claim as appellant has failed preserve the issue in a post-verdict motion. See Commonwealth v. Gravely, 194, 486 Pa. A.2d 1296 (1979) (only those issues included in written post-verdict preserved motions for appeal).
Judgments of sentence affirmed.
Superior Court of Pennsylvania.
Argued 23, Oct. 1986.
Filed March 1987. *3 appellant. for Crawford, Philadelphia, D. James Gen., Harris- Jr., Attorney Mackin, Deputy P. Charles Com., appellee. for burg, CERCONE, JJ. WIEAND, OLSZEWSKI
Before CERCONE, Judge: from the lower appeals Alan M. Lieberman
Attorney for leave to petition with- uncontested of his court’s denial client, Scheps. The Benedict lower for his as counsel draw request Mr. Lieberman’s hearing, denied court, after a withdraw. filing prompted
The facts which withdraw, developed hearing, at the are as leave at one time a success- apparently was follows: in Wyoming area of County manufacturer ful cheese he had transferred his from where business Pennsylvania, family-owned He President of two Jersey. busi- New *4 nesses, Scheps Company Cheese and the Bradford Farms, Inc., of which became County major employers both County area. Wyoming in the appeared,
It without contradiction at the hearing, Scheps began Mr. as well-intentioned business man who made financial in substantial commitments his moving plant Jersey from New to the Wyoming area. At the County hearing attorney Lieberman informed the if Mr. court that Scheps had followed legal go advice to into bankruptcy
when his businesses ran into insurmountable economic problems, he would have avoided irregularities business which culminated in a multitude of criminal charges brought against him in both state and federal courts involv- 1,100 ing counts on various deceptive business practices surrounding the failure of the two companies 1983.
During and following time Mr. Scheps’ problems he began, represented was personal Eu- attorney, gene Farber, H. Esquire, now deceased. Although Mr. engaged primarily Farber was practice represent- civil he Scheps’ ed Mr. corporate prosecu- codefendants the state tions. In federal court Mr. Scheps represented by Wells, Esquire, Theodore V. a New Mr. Jersey lawyer. opinion Wells was of the he would be in conflict of interest cases, if he were also to Mr. in the represent Scheps federal so, Lieberman, and he recommended Mr. Alan M. a member here, of a firm Philadelphia appellant law and as one capable representing who would Mr. in the Scheps be Farber, him. charges brought against Scheps’ Mr. Mr. personal Mr. Mr. attorney, represent asked Lieberman Scheps. arrangements approved by Scheps Fee Mr. called $20,000 for a retainer the final and prompt bill Mr. Lie- payment expenses upon of fees and submission. the firm agreed to Mr. counsel based on berman be firm, he, paid as a of a would be promise that member law came expenses they all fees and promptly regularly Farber, Scheps’ personal attorney, due. Mr. bolstered personally that he would understanding promise paid expenses for his fees see that Lieberman was Scheps, for Mr. entering appearance Before promptly. done in the state the work to be Mr. Lieberman evaluated in conversations engaging cases. Part of that work was P. Deputy Attorney General Charles and a conference with arrangement. regarding plea bargain and his staff Maekin that a conference, Mr. determined After such which agreed upon could be bargain arrangement plea imposed upon for a sentence provide if to a federal sentence run concurrent Scheps which would or more years imprison- was for five the federal sentence *5 concluded that Mr. Lieberman prospect, this With ment. his entered and he then prevented be long trial could Scheps. for Mr. as counsel appearance in the in the media publicity widespread the Because of the regarding areas adjoining and County Wyoming com- Mr. was Scheps, Lieberman Mr. charges made or venire and change venue motions for file pelled motions were dire all which voir sequestered individually the the fact that Common- despite court by the lower denied change of venire. at least grant urged judge the wealth also denied. lower court was recusal of the motion the A for of the trial seeking review and one motions All these came agreement before plea consider a refusal to court’s affirmed lower and we the court in review petitions A for allowance of grounds. jurisdictional on court the currently pending issues is before on these appeal of Pennsylvania. Court Supreme PETITION FOR WITHDRAWAL THE continuously and very diligently Mr. Lieberman worked He Scheps. of Mr. encountered representation substan- expenditure of time in unexpected working out tial bargain agreement turned out to more diffi- plea which than he or office had Attorney either General’s cult Mr. contemplated, the result of which compelled firm. Despite from in his lawyers to seek assistance other agreement, working plea bargain out difficulty not on Mr. Lieberman did cease his other efforts behalf motions, Scheps, filing Mr. of various briefs namely agreement was reached be- plea memoranda. When office, it Attorney tween Lieberman and the General’s However, presented hearing. to the court for a lower under Pa.R. plea the lower court refused to entertain the reason, right under giving Scheps’ its Crim.P. judge in the did plea 319 to withdraw event and the Com- accept arrangement between monwealth.
In order to determine the nature of the criminal charges
filed against Mr. Scheps, Mr. Lieberman filed motions for
*6
discovery and for a bill of particulars which, at the time of
the withdrawal hearing, had not yet been answered by the
Commonwealth since these motions were stayed pending
efforts to resolve
plea
the
bargain agreement.
In the
1985,
summer of
it became apparent that Mr. Scheps would
be unable to pay Mr. Lieberman his present unpaid fees
$6,000
which amounted to
above the original retainer and
would be unable to pay fees for future services which were
estimated
$150,000,
to be in the area of
in trying a case that
months,
would take 2-3
least,
at
complete,
according to
Mr. Lieberman’s testimony.
18, 1986,
On February
Lieberman informed Mr. Scheps of his intention to file a
petition for
17,
leave withdraw and on
1986,
March
he did
so file. Mr. Lieberman simultaneously forwarded to Mr.
Scheps copies
motions,
of all
briefs and memoranda which
he had filed or
in
prepared
the case so that
would be current with what had happened up to the time
the petition to withdraw was filed. At the hearing on the
petition
withdraw,
for
leave
it was learned that Mr.
Scheps had
million
judgments
worth of
him
$13
that he owed the United
in
government
States
million
$1
$120,000
taxes and
at the
penalties
rate of
in
per year
interest. All of his assets have
liquidated
been
and even his
home
pledged
has been
as collateral for the
Prior to
debts.
court’s
on
hearing
petition
lower
Mr. Lieberman’s
for
withdraw,
5, 1986,
leave to
fixed May
court
as a date for
1,100
trial on 6 counts of the
charged against
counts
Scheps’
is Mr.
Scheps.
great significance
testimony
Of
discharge
of Mr.
as his
regarding
attorney
opinion.
which
discuss later in this
we will
To this
decided is whether or not
point,
question
in denying
the learned court abused its discretion
counsel’s
from Mr.
case.
Scheps’
for leave to withdraw
Phoenix Mutual
Insurance Co. v.
on
Life
Radcliffe
159,
(1970);
Delaware, Inc., 439 Pa.
(1) permission tribunal, shall lawyer the rules of required by *7 in a before employment proceeding from permission. its tribunal without (B) Mandatory withdrawal. tribunal, with a
A a client before lawyer representing rules, shall withdraw by if its permission required its a client representing and a employment, lawyer from if: employment from other matters shall withdraw bringing is his client (1) that He knows or it is obvious defense, asserting a or action, conducting the legal having steps otherwise or is position litigation, harassing or him, purpose for the merely taken for any person. maliciously injurying employ- that his continued (2) it is He knows or obvious Rule. Disciplinary of a ment will result violation renders it unrea- (3) or condition physical His mental employment carry for him to out difficult sonably effectively.
(4) his client. discharged by He is 2-110(B)(4) a client dismisses
Thus, DR where under grant the lower court mandatory it is that lawyer, Otherwise, to leave for leave to withdraw. permission 2-110, covering the of DR withdrawal section mandatory upon petition mandatory four instances where withdrawal 574 the lower court mean that such the discretion of lawyer represent
court could
a
to continue to
compel
measures under
though
disciplinary
client even
he faced
(B)(2),
This,
are of
not intended
opinion,
we
supra.
case,
In
dis-
by
the rules.
the instant
since
charged his
action
within the ambit of the
lawyer, this
came
rule
should have
mandatory
Furthermore,
there
given permission
been
withdraw.
an
plethora
may discharge
that hold that a client
cases
or
In
Thom-
with without cause.
United States v.
attorney
as,
(D.C.Cir.1971)
“Many
the Court stated:
ment
return of confiscated
The
medical,
recreational treatment.
library, laundry and
irrec
citing
counsel filed a motion for withdrawal
inmate’s
*8
inmate client.
himself and the
differences between
oncilable
by requesting
The
substantiated these differences
inmate
“It is clear that
There the court said:
counsel’s removal.
terminated
relationship may always be
attorney-client
case,
the instant
cause ...
In
client with or without
by the
desire that
has
shown
a mutual
cause
been
good
Therefore, the
court-appointed duty.
of his
Clay
relieved
747.
at
granted.”
counsel will be
Id.
withdraw as
motion to
Loan
County Building
Beaver
v.
See Sundheim
(1940);
529, A.2d 349
14
Association,
Pa.Superior
140
Ct.
it
Cir.1969).
so
(5th
And
Dick,
Insofar as the nature of DR mandatory concerned, would find that court erred we lower denying Lieberman’s motion for leave withdraw. in this light ruling of the trial court’s reasons for its case, 2-110(C) Disciplinary we must decide if DR direction of mandatory Rules in so any way modifies 2-110(B), court discretion give DR so as to the lower supra, in this case. We deny for leave to withdraw are of the that it does not. opinion 2-110(C)
DR provides:
(O Permissive withdrawal. 2-ll-(B) applicable, lawyer may is not not
If DR pending in matters be- permission to withdraw request matters, tribunal, other may fore a such withdrawal request unless such because: (1) His client:
(a) upon presenting Insists a claim or defense that is existing sup- not warranted under law and cannot be extension, ported by good argument faith an modifica- tion, existing or reversal of law.
(b) Personally pursue illegal seeks course of conduct.
(c) that lawyer pursue Insists a course of conduct illegal or is prohibited Disciplinary that is that under the Rules.
(d) it By unreasonably other conduct renders difficult lawyer carry employment effectively. for the out Insists, tribunal, in (e) a matter not a pending before lawyer contrary in conduct that is to the engage lawyer prohibited but not judgment advice under the Rules. Disciplinary
(f) Deliberately agreement obligation or disregards as or lawyer expenses to the fees.
(2) is result employment likely His continued of a Rule. Disciplinary violation (3) inability His indicates that to work with co-counsel by likely interest of the client be served the best will withdrawal.
(4) mental condition it difficult His renders physical carry employment effectively. for him to out the to termi- (5) His client assents knowingly freely of his employment. nation faith, pending in a
(6) good proceeding He believes in tribunal, will find the existence that the tribunal before good of other cause for withdrawal.
Thus,
circumstances
exception
with the
these
2-110(B)
(Mandatory
withdraw
contemplated
supra
DR
within
al)
traditionally
the matter
withdrawal
prophylac
court
There are no
judge.
trial
discretion
denial or
determining
exist
whether
tic rules which
when
case
Each
amounts to an abuse
discretion.
giving
interest
balancing
competing
decided
must be
v.
presented.
to the facts
Commonwealth
regard
due
(1972). As
296,
In
Railroad,
84,
Brown v.
Pa.
255
Pennsylvania
435
554,
(1969)
A.2d
555
court said: “We believe
rights
sometimes too little
and
given
consideration
to the
privileges
attorney
at
clients of his
represent
law
choice and to
representation
terminate a
when
lawyer-client
desires,
he
provided
rights
unjustly prejudice
it will not
clients,”
of his
citing
Philadelphia Transporta
Swedloff v.
382,
(1963).
tion
409
Permit
Company,
Pa.
The
and is
right
personal
counsel is
if
if competently
waivable
the waiver is
and effective
valid
and
intelligently
taking
specific
made
into consideration
case,
circumstances of a
since each case must be considered
on its specific
background.
Zerbst,
factual
Johnson v.
See
458,
1019,
(1938);
304 U.S.
58 S.Ct.
578 (1964). right A client has a to dismiss 515, A.2d 439 not delay judicial process as it does long counsel so is not made bad faith. Commonwealth unreasonably Ross, v. 465 Pa. Atkins, supra; Commonwealth v. take (1976). attorney steps An must reasonable A.2d client, includ- rights to the of his prejudice avoid foreseeable client, allowing employ- time for notice to his due ing giving all counsel, papers to client of delivery ment of other complying the client is entitled property which asked if his withdrawal and rules. When laws applicable his client’s jeopardize in any way from the case would . attorney that a substituted interest, testified Mr. Lieberman try the case advantageous position in a less I—I don’t—not He stated: “... then was Lieberman. *11 attorney I think that an substi- at all. worse at appreciably learning the same would, close to would have tuted for us require time that we would and motion discovery and curve Mackin, when Attorney General Deputy the case.” try to on Mr. Lieberman’s to comment court asked lower withdraw, stated: to for leave request Honor, this is a Your Honor, may, if I sir. Yes, your far in, in as to be the Commonwealth for sticky position or the way one has no desire really as the Commonwealth Scheps Mr. Scheps. Mr. represents to who other as therefore, So, we choosing. of his own to counsel entitled repre- no as to who position have we would really, don’t Mr. defender, it or be public it Scheps, Mr. be sents memorandum However, in the feel that we Lieberman. filed, has been that motion to withdraw of the support Scheps’ Mr. characterize to improper it isn’t feel we has testimony that thinkWe as deliberate. pay failure deliberate, it is just it is today that out brought been and under to pay, have the wherewithal! he does not that allowed, rules, withdrawal permissive disciplinary arrangement. a fee disregard is a deliberate if there dis- deliberately had Mr. that feel And don’t we Mr. said, confronted now as I it. But regarded Lieberman, I Mr. forward with go not to desire Scheps’ If a discharge. to a tantamount if that is know don’t I discharges attorney, disciplinary client believe is a mandatory rules are clear that that But I’m not too certain as to whether or not situation. would amount to testimony Scheps actually from hand, discharge. On the other the Commonwealth also recognizes duty its the citizens Commonwealth I, I I this case. And think can be move forward with I granted leeway, disagree do with Mr. Lieberman he off lawyer starting feels that a new would be Lieberman, is. I feel that Mr. even where Lieberman case, has although perhaps ready he’s not for trial of this minimum, through of, at the osmo- certainly process sis, facts, are, learned some of the who the witnesses I I perhaps selling think Mr. Lieberman is himself short. think he this case. That quite knows a bit about my opinion, Honor. Thank sir. your you, The certainly General’s comments do not amount Attorney substantial any objection request Mr. Lieberman’s leave to withdraw.
When asked he why discharging lawyer, Scheps testified at the I—cannot in hearing follows: “... firm good conscience continue to ask Mr. or his to continue as my counsel now that there’ll be additional $100,000 debts of over absolutely way no that will be pay able to them.” Mr. that he was not Scheps testified dissatisfied with Mr. Lieberman because he had done *12 ” ‘decent job.’
In answer to the as to Attorney question why General’s he discharging Scheps was lawyer, answered:
“Yes, if I could I explain. Originally didn’t know it was time, going to take this much and this much I money and man, cannot I going continue to allow a who am sure it is to affect in company, go his career to continue to I, know, in deeper debt. there is no In you way. the I I beginning thought to him. pay would be able Gene Farber, Scheps’ personal who was a friend [Mr. counsel] mine, me, of assured me that he would help as his firm made more and money, beginning so the I thought I to. There be no problem.
would be able would We didn’t going go again, think we were to into this this size a impossible, situation. So now know it is I mean it is impossible an task for me to him. If I made a just pay him, of a million dollars a I could quarter year, pay never government the would take their share and then because there be all the liens me. So there is enough no I could ever make absolutely way money him, or pay anybody.” request
The court refused Mr. lower Lieberman’s discharge on the that Mr. of Mr. grounds Scheps’ withdraw 2- required by DR Lieberman was deliberate 110(C)(1)(f) lawyer request permis holds that a may which disregards “Deliberately sion to when his client expenses the as to or agreement obligation lawyer an or or interpreted has not been fees.” This term “deliberate” least, and, the it is an say construed in decision any totality the of the circumstances considering obtuse term The term relationship. having attorney-client to do with the “deliberate”, attorney- context of an opinion, in our the mean it has to necessarily that relationship client does not long in an inimical sense so be done with vindictiveness understanding full voluntary, and with intelligent, as it is construing the word means. discharge as to what the DR provisions the “deliberate”, ignores court the lower clarity language the 2-110(C)(5) (6), and which mean nebulous, unclear imprecise clearly override In this case Mr. “deliberate”. ing of the word made.1 voluntarily intelligently clearly discharge issue, it is unfortunate Although not address we do 1. bargain plea arrangement. entertain did not at least lower court Fazenbaker, Pa.Superior Ct. v. Commonwealth In the case of procedure detailed that a (1977) Judge into Spaeth went A.2d 175 bargain arrangement plea when should follow lower court opinion of that there was the context feel that in presented. We plea and if he entertain at least court obligation of the lower arrangement notify bargain he could plea accept the not to decided plea. could withdraw the the defendant which time at the defendant currently subject Id.; matter is But this Rule 319. Pennsylvania Supreme pending before appeal now allowance here. concern and is not our Court *13 not the are by Most of the cases cited Commonwealth general a they either decide the affect which helpful since a jurisdiction counsel has on a court’s over appearance by requests relate to for contin- untimely of a client or person attorney of his in order for a defendant to retain uances choice. case not hearing, the of the was
At time trial; and for a bill of discovery for motions on ready the Common- yet by had not been answered particulars wealth; presented had not substantial the Commonwealth the jeopardize that would regarding any delay information and, fact, in agreed with justice, efficient administration change defendant’s motion for venire because the case. The lower court given to widespread publicity Scheps’ discharge in the effect of Mr. misconstruing erred for holding petition It erred that the attorney. of his filed the court untimely was because leave 1,100 six of the counts scheduled counts, discovery six motions on trial. Even as to those had not been answered particulars yet for a bill of Furthermore, counts scheduling of 6 Commonwealth. 1,100 scheduling equate out of counts does not 1,964 counts which it involving remaining full trial The complete. months to estimated will take at least 2-3 not into the inordinate burden lower court did take account carry called out placed upon which it prom- a firm representation predicated upon when his the time paid promptly. Up ise that all his fees would be had hearing delayed judicial Mr. Lieberman nor filed the for leave to withdraw bad process Ross, v. supra, faith. Commonwealth v. Commonwealth Atkins, Company Phoenix Mutual Insurance supra, Life Delaware, supra. v. on the Radcliff has lawyer conscientiously represented Where him prepare his client and has not left without time to trial, case for or to other for such procure trial counsel And petition for withdrawal is not made bad faith. where said made in fees of a past legal client bad faith owes *14 for future position pay amount and is not a to
substantial
trial,
reason to
legal
protracted
deny
fees for a
there is no
Finally,
for leave to withdraw.
when
attorney’s petition
discharges
attorney,
his
as Mr.
did
the client himself
case,
attorney-client
is terminated.
relationship
in this
petition imposes
The court’s denial of
Lieberman’s
career,
of detriment to his
resulting
the risk
punishment
financial losses.
It should not be
let alone substantial
all,
responsibility
it is the client’s
and not
After
permitted.
heavy
for the
costs of trial. Com-
attorney’s
pay
to
199, 213,
A.2d
Novak, 395 Pa.
monwealth v.
circumstances, the
(1959).
foregoing
In
lower
light
counsel to
from this
allowing
erred in not
withdraw
court
consistent with this
purposes
remand for
case and we
relinquished.
opinion. Jurisdiction
concurring
dissenting opinion.
and
WIEAND,
filed a
J.
OLSZEWSKI, J.,
dissenting opinion.
filed
dissenting opinion:
and
WIEAND,
concurring
Judge,
Judge
join
Cercone
by
result achieved
I concur in the
that the trial
determines
his
which
opinion
portion
that
when,
circum-
peculiar
under
discretion
court
its
abused
for leave to
request
case,
denied counsel’s
it
stances of this
for the defendant.
counsel
as
appearance
by
expressed
conclusion
However,
disagree
Olszewski,
Discipli-
that
Cercone,
by Judge
as well
Judge
court
that a trial
mandatory
2-110(B) makes it
Rule
nary
circum-
to withdraw under
counsel
for
permission
grant
2-110(B)
Rule
my opinion,
In
enumerated.
there
stances
intended
counsel;
it was
only
application
has
determining whether
discretion
courts of
trial
deprive
under
to counsel withdraw
permission
or withhold
grant
are
Trial courts
case.
particular
each
circumstances
Court; and
Supreme
adopted by
rules
by
governed
a defendant
“[cjounsel
that
302(b)provides
Pa.R.Crim.P.
of court.”
by leave
except
appearance
not withdraw
may
courts, to
exercised as
discretion in trial
be
This rule vests
require.
of justice”
the “interests
the “interests of
case,
I would hold that
the instant
permitting appellant-coun-
justice”
by
can better be served
can
repre-
the defendant-client
sel to withdraw so that
impaired
counsel
will not be
by
loyalty
sented
other
whose
inability
pay
a substantial fee.
the defendant-client’s
OLSZEWSKI,
dissenting opinion:
Judge,
issue, I note
Although
party
neither
raises the
thus,
final,
order,
appealable
jurisdiction
properly
Railroad,
Pennsylvania
this Court. See Brown v.
before
*15
84,
(1969).
sent Mr. The fee Scheps. arrangement agreed upon called $20,000 for the payment retainer the final bill payment and the of monthly upon bills submission.1 Mr. Lieberman acknowledges entering appear- that before ance for Mr. he Scheps, evaluated the work to be done and spoke representatives general’s of the attorney office. words, In his own Mr. “concluded Lieberman that there was danger little that there would be substantial time lawyer required (Notes in dealing charges.” with the state Hearing 12-13, 28a-29a). 4/25/86 R.R. Mr. Lieberman also acknowledges that he became involved with Mr. Schep’s case because of the “only assurances of the members of attorney general’s office that plea agreement could be reached” and because Mr. Schep’s personal Mr. attorney, agreement part 1. The fee party was not made of the record. Neither disputes agreement the terms of the as recalled Mr. Lieberman in testimony hearing at a on this matter. Farber, him gave a personal assurance legal bill would (Id. paid. 3, 7a). be at R.R.
Mr. Lieberman’s expectation that a plea agreement would dispose of this case proved erroneous; 2, be on October 1985, the trial court refused to accept the proposed plea much to the surprise of both the defense and the Common- continued, wealth. Mr. however, to diligently and expertly represent Mr. Scheps before the trial court as well as before this Court and Supreme Court of Penn- sylvania. meantime,
In the Mr. Lieberman learned that his client had become insolvent. Mr. Scheps and his personal attor- Farber, ney, continued, Mr. nevertheless, give their as- surances that the legal bills would paid.
Mr. Farber met an untimely death on February 1986. Mr. Coincidentally, Lieberman informed Mr. Scheps day same that he seek to withdraw from the case. 18, 1986, March On Mr. Lieberman filed a motion to citing (1) grounds: two difficulty dealing with Scheps, both as a result of his failure to the fees pay owed, view of the death of Mr. Farber who acted as (2) intermediary;2 Scheps’ inability pay fees. At the held on legal hearing this matter a new and ground different appeared to arise. When questioned motion, as to his on this feelings *16 testified as follows:
Q. one last Do question. you Just wish to continue to Mr.
proceed with Lieberman? No, A. I do not. I—I cannot in conscience contin- good Mr. his firm to continue as
ue to ask Lieberman or counsel, knowing that there’ll be additional debts my dollars, and absolutely of over a hundred thousand I’ll to them. way pay no that ever be able Now, not dissatisfied with the Q. Scheps, you’re Mr. provided you Mr. has that
representation you? are ground appeal. this first on
2. Mr. Lieberman has abandoned I’m not dissat- job. decent I think he’s done a A. No. isfied. workmanship? legal complaints
Q. No A. No. to pay unable you is that will be
Q. main concern Your rendered, and well, all, for services him, past first of future, that correct? in the anything concern, my yes. A. That’s main to forward with go do not wish Q. why you And that him? it I didn’t know Originally if I Yes, explain.
A. could this much money and take this much going to man, I allow a who am time, I continue to and cannot company, career it is to affect his going sure know, I, there is you deeper in debt. go continue I be thought I would able beginning In the way. no mine, Farber, was a friend him. who pay Gene me, firm as his made help me he would assured thought I I beginning so in the money, more We problem. be no to. There would able again, this go into this going think were didn’t we I impossible, I know it is of a So now size situation. pay for me to him. task just impossible it is mean year, could of a million dollars quarter If I made would take him, government pay never because all liens then there would be their share and I could absolutely way there is no me. So him, anybody. pay enough money make ever 58a-60a). Following 42-44, (Notes R.R. hearing it that was the Commonwealth noted counsel for testimony, had that Mr. Lieberman clear on the record entirely result, fact, As a Mr. been, Scheps. discharged asked one to the stand and recalled witness Scheps was question:
Q. Scheps, you discharge do Lieberman? Yes, A. I do.
(Notes of hearing 51, 67a). R.R. Hence, the discharge counsel claim did not arise as a basis for withdrawal until the hearing on counsel’s motion.
I agree with the majority that when counsel is dis- charged, the court must grant permission for leave to 2-110(B)(4). withdraw. DR Because of the nature of the confidential relationship between client counsel, client may discharge counsel with or even without cause. 7 Am.Jur.2d Attorneys at Law Sec. (1980). Common sense experience us, teach however, that even where the discharge cause, is without the client has acted because of discontent, distrust, or other motives which reveal a breakdown in the attorney-client relationship. Such is not the case here. In view of the testimony and the sequence of events giving case, rise to this in particular, the fact that Mr. Lieberman was not “discharged” until after the with- filed, drawal motion was it becomes obvious that this is not a case where the client severed the attorney-client relation- ship. There was no breakdown of the attorney-client rela- tionship; Mr. Scheps testified that he was satisfied performance. Lieberman’s It takes no stretch of the imagi- nation to see that Mr. placed in the untenable position of “discharging” his counsel only questioned when at a hearing on the motion and did so only because of financial I constraints. not permit such economic arm-twisting be used as the for turning basis a motion permission to withdraw into one upon based the manda- tory provisions. would, therefore, withdrawal I find that the mandatory provision, 2-110(B)(4), withdrawal DR simply inapplicable.
Nor do believe that basis exists for the grant permissive withdrawal. The reason by appel- advanced is, doubt, lant—the inability pay legal beyond fees— factor in Mr. motivating Lieberman’s desire to with- draw. The of Professional Responsibility permits Code “deliberately counsel where the client dis- regards” an agreement obligation as to counsel’s fees or 2-110(C)(1)(f). expenses. date, DR To Mr. Scheps has *18 of $30,000; payment an initial totaling payments made $10,000. comparison, of $20,000 payment a second and $80,000 in fees and he has billed over claims Mr. Lieberman that he is Mr. testified $6,000 Scheps in disbursements. is owed; mort- property all of the sums pay unable to filed in liens have been million approximately gaged $13 and him. against entering to Scheps plight subsequent financial Mr.
Given Lieberman, that he say I cannot Mr. the with agreement fee simply it was obligations; deliberately3 disregarded Thus, I would him make any payment. to impossible permit to court’s refusal of the find no abuse discretion to DR case pursuant from the to withdraw 2-110(C)(l)(f). Disciplinary the Considerations and
A review of Ethical Counsel, indi- 2—Withdrawal accompanying Rules Canon right the regarding principles the and cates that all rules three geared toward protecting are attorney client, attorney’s of the the legal rights interests: client, and the by treatment receiving fair interests by permit- I believe that judicial system. of the integrity withdraw, the attor- elevates majority ting counsel interests of compensated over the being ney’s interest system. the judicial the client and right representa- qualified a defendant holds Because under- choice, this has constitutional case by tion counsel above, quarrel has no As noted pinnings. Mr. Lieberman his retained counsel. performance client, His on a substantial retainer. already has received him; 1,000 counts hand, in excess of the other faces complicated. lengthy to be both promises the trial time, who, of counsel at Permitting of this case and intimate with the intricacies extremely both thorough An where it results from careful 3. act is "deliberate” an awareness conse- consideration characterized (1980). Collegiate Dictionary quences. at cannot Websters New deciding Scheps carefully pondered before conclude that legal simply pay do so. fees. He could not well-equipped to handle such trial, a complex would elevate counsel’s right to be treated fairly over client’s right counsel of In addition, choice. withdrawal would unneces- sarily impede the efficient of justice.4 administration
This is however, not to say, that counsel is not entitled to compensation. a general rule, As an attorney is not obligat- ed to render legal services for those unable to make pay- ment in the of a absence court appointment. See EC 2-26. I am not so naive to be blinded from the real-life fact earn attorneys livelihood; must I also suspect few *19 clients private enlist the aid of counsel with the expectation that representation given will be free of charge. See EC 2-16, However, EC 2-17. once an attorney agrees to repre- client, sent a counsel implicitly agrees to proceed on the client’s behalf to the conclusion of the matter. 7 Am.Jur.2d Attorneys (1980). at 2-31, Law Sec. EC See 2-32. EC case, however, this Mr. partner Lieberman —a in promi- nent thorough firm—conducted a investigation before agreeing represent Scheps. Mr. Although he entered his appearance in case and accepted a retainer expecting the court’s acceptance plea he agreement, should have been cognizant of possibility plea that would be rejected and the case scheduled for trial.5 Mr. Lieberman has already client; undertaken his obligations those obligations should not cease merely because the case be- came more or no complicated longer profitable as would, therefore, I originally affirm contemplated. the trial court’s denial of the motion to withdraw.
4. We note that the motion to withdraw was filed March of 1986 and begin May Although trial was set to on 1986. has trial, right speedy society waived his to a both the court have an expeditious justice. interest in the efficient administration matter, Throughout argument 5. the course in this payment repeated to the made makes reference assurances of legal payment Farber. The fees from one other than the client is prohibited except the consent of the client after full disclosure. 5-21, 5-22, 5-107(A), (B). Since Mr. DR EC EC EC 5-23. Farber See deceased, propriety determine the of such assurances. I need not note, however, payment the absence of an assurance of is un- doubtedly significant present in the action.