Lead Opinion
delivered the Opinion of the Court.
T1 Pursuant to C.A.R. 21, we issued our rule to show cause in this case to determine whether the trial court erred in requiring retained attorneys to represent a defendant at trial, despite defendant's expressed desire to discharge them and his lawsuit against them that created an irreconcilable conflict of interest.
T2 In October 2010, the prosecution charged Alan DeAtley, a Washington State
1 3 In November 2012, instead of granting the motion to withdraw, the trial court granted DeAtley a relatively short continuance to retain yet a third defense attorney. DeAtley did not retain another attorney. Instead, he commenced a lawsuit against defense counsel for malpractice and breach of contract, reinforcing the discharge of them and causing defense counsel to renew the motion to withdraw. The trial court unreasonably and unfairly determined that the attorneys in this case could effectively represent DeAtley despite his discharge of them and the trial court's previous finding that a conflict of interest existed between defense counsel and DeAtley due to the malpractice and breach of contract lawsuit.
T4 Accordingly, we reverse the trial court's denial of the motion to withdraw and make our rule absolute.
I.
15 In October 2010, the prosecution charged DeAtley with twenty-five counts of white-collar criminal activity. DeAtley retained David Kaplan as his attorney. Kaplan filed a motion to withdraw in June 2011 on the basis that irreconcilable conflicts existed between him and DeAtley and that DeAtley lacked the funds necessary to pay for representation. The trial court granted Kaplan's motion to withdraw in July 2011 and granted DeAtley's motion for a continuance to allow him time to either retain new counsel or apply for representation by the public defender.
T6 In August 2011, DeAtley retained defense counsel, who proceeded to represent him. On November 18, 2012, the trial court received a letter from DeAtley asking that the court permit defense counsel to withdraw. DeAtley stated that he was going to discharge defense counsel and seek new representation. On November 15, 2012, defense counsel filed a motion to withdraw under Colo. RPC 1.16(a)(1) and 1.16(8) based on DeAtley's stated intent to discharge them.
T7 On December 8, 2012, the trial court held both a public and an ex parte hearing to examine whether defense counsel would be permitted to withdraw. The trial court conducted the ex parte hearing so that defense counsel could present evidence supporting the withdrawal based on confidential and privileged information. On January 16, 2013, the trial court entered an order denying the motion to withdraw unless DeAtley retained new counsel. The trial court granted a continuance of the trial until May 2013 and stated that it would not grant any further continuances beyond that date, "barring exceptional and extraordinary cireumstances."
T8 At a hearing on January 31, 2018, DeAtley handed defense counsel a copy of a civil complaint naming them as defendants in a malpractice and breach of contract action arising from their representation of him in this case. Defense counsel renewed their motion to withdraw on the basis that DeAtley was suing them and they must consequently withdraw from representation pursuant to Colo. RPC 1.7(a)(2) because of a conflict of interest. The trial court held another hearing on February 15, 2018. By this time, DeAtley had filed his malpractice and breach of contract action against defense counsel in a federal district court for the state of Washington.
T9 On February 15, 2018, the trial court found that there was a conflict of interest between DeAtley and defense counsel, but it denied the motion to withdraw because it found that DeAtley had caused the conflict in order to delay the trial. The trial court accepted DeAtley's suggestion of allowing another counsel "to make an appearance within the next two weeks." The trial court told DeAtley, "I'm comfortable with that with the understanding at this point if they don't appear then we're still proceeding along that assumption that your present counsel are remaining on...."
T10 In the subsequent weeks, DeAtley failed to secure new representation. On March 15, 2018, defense counsel filed a motion seeking reconsideration of their motion to withdraw and detailed the nature of the conflict. They informed the court that defense counsel's attorney for the Washington lawsuit had advised them not to communicate any further with DeAtley due to the pending lawsuit. On March 26, 2013, the trial court denied defense counsel's motion for reconsideration, stating that they must represent DeAtley at trial unless he elected to represent himself:
[UJnless the defendant elects to represent himself, his present attorneys should expect to represent him at the trial on May 20, 2013, and they should take such actions as needed to be ready to do so at that time.... [The court sees no reason why they cannot discuss the present criminal proceedings to the degree necessary for the attorneys to present an appropriate defense.
Despite finding a history of DeAtley creating conflicts to disqualify a number of attorneys in order to delay trial of the case, the trial court required defense counsel to represent DeAtley at trial:
After considering all of the relevant circumstances, including but not limited to the timing of the defendant's actions creating the conflict shortly before the original trial, his history of similar actions in other cases, his efforts to not only disqualify his own counsel but to disqualify the court, the age of the case, the prior withdrawal of the original counsel in this case, the pending trial in May, the complexity of the issues, the likely difficulty, if not impossibility, of finding substitute counsel, and the likelihood that some type of conflict would arise between the defendant and any such substitute counsel even if one could befound-present defense counsel's request to withdraw is denied.
11 At the request of defense counsel, we issued a rule to show ealse as to why the trial court's order denying their motion to withdraw should not be reversed. As they did in the trial court, defense counsel argues that Colo. RPC 1.16(a)(1), 1.168), and 1.7(a)(2) prohibit them from representing DeAtley due to a conflict of interest. The prosecution argues that the trial court did not abuse its discretion in requiring defense counsel to try the case on the date set for trial. We disagree.
IL.
{12 After the trial court found that DeAt-ley was engaging in trial-delaying conduct, it abused its discretion by choosing the incorrect remedy. The trial court unreasonably and unfairly determined that defense counsel could effectively represent DeAtley despite his discharge of them and the trial court's determination that a conflict of interest existed between the attorneys and their client. It should have granted the motion to withdraw and proceeded in accordance with Crim. P. 44(2), advising DeAtley that Jie had the obligation to hire other counsel, request the appointment of counsel by the court, or elect to represent himself. In view of DeAtley's delay-causing conduct, the trial court should have given DeAtley an Arpuello advisement, explaining the consequences of engaging in trial-delaying conduct, which can result in an implied waiver of the right to counsel, and explaining the risks of proceeding without an attorney. See Arguello,
A. Standard of Review
%18 Appellate courts review a trial court's ruling on an attorney's motion to withdraw for an abuse of discretion. People in the Interest of M.M.,
B. The Right to Counsel and Its Limitations
114 The right to counsel is guaranteed by the Sixth Amendment to the U.S. Constitution. U.S. Const. amend. VI. This right encompasses both the right to a retained attorney for a defendant who is financially able to pay for legal representation and the right to a court-appointed counsel for an indigent defendant faced with the prospect of incarceration. King v. People,
115 The right to select an attorney of choice whom the defendant trusts is considered central to the adversary system and of substantial importance to the judicial process. People v. Brown,
117 In all of these cases, we have consistently held that a trial court must balance the defendant's Sixth Amendment right to counsel of choice against the demands of fairness, efficiency, and the integrity of the judicial system. A trial court has wide latitude in determining how to strike this balance. United States v. Gongalez-Lopez,
118 Although the trial court cannot force a defendant to proceed to trial with a retained attorney he no longer wants to represent him, a defendant may be required to represent himself where the defendant has created the conflict to cause delay. Under such cireumstances, the trial court must explain that, if the defendant cannot find a new attorney prepared to go to trial at the trial date the court sets, the defendant can be deemed to have waived his right to counsel and be required to go to trial without an attorney. The trial court must, under these cireumstances, explain the risks of proceeding without an attorney and the consequences of dilatory conduct.
C. Application to This Case
€19 In this case, the trial court permitted DeAtley's first counsel to withdraw in July 2011. It simultaneously granted a motion for a continuance to allow DeAtley time to find an attorney. From the time DeAtley threatened to discharge defense counsel in November 2012, followed by his filing an action against them for malpractice and breach of contract in February 2018, the trial court held a number of status conferences and hearings on defense counsel's motion to withdraw. In considering defense counsel's motion to withdraw, the trial court told DeAtley that if he did not secure new representation, defense counsel would be required to represent him at trial. The trial court also told DeAtley that even if he arrived at court with a new attorney, the court would not grant any further continuance of the trial date.
20 When the trial court ascertained that DeAtley had not retained another attorney, it found that DeAtley had intentionally engaged in conduct calculated to delay the case. It abused its discretion, however, in requiring defense counsel to represent DeAtley over his objection and despite the conflict of interest the trial court found to exist, The trial court should have granted defense coun
121 Because the trial court had already determined a conflict of interest existed, it had no reasonable basis for believing that the attorney-client relationship had not deteriorated to the point that counsel was unable to give effective aid in the preparation of a defense. Further, the conflict between defense counsel and DeAtley and the motion to withdraw did not occur on the eve of trial. Compare People v. Schulteis,
122 On remand, the trial court should inquire of DeAtiey whether he has utilized the extensive time during the pendency of this original proceeding to retain substitute counsel,. If he has, the trial court should allow the new counsel to enter an appearance, set a trial date, and give DeAtley an Arguello advisement about the consequences of any further delay-causing conduct. If he has not retained counsel, the trial court should proceed in accordance with Crim. P. 44(a), advising DeAtley that he has the obligation to hire other counsel, request the appointment of counsel by the court, or elect to represent himself, In view of DeAtley's delay-causing conduct, the trial court should then give him an Arguello advisement, warning him that he can be required to proceed to trial without an attorney and the related risks. Arguello,
III.
123 Accordingly, we reverse the trial court's order denying the motion to withdraw, make our rule absolute, and remand this case to the trial court for further proceedings consistent with this opinion.
Notes
. The issue of whether a conflict of interest existed is not before us. For the purpose of this petition, we accept that a conflict of interest existed because of the trial court's finding.
. See Complaint, DeAtley v. Stuart, No. 13-CV3014-EFS (E.D. Wash. Feb. 12, 2013). DeAtley filed this action in the Eastern District of Washington on February 12, 2013, at which point defense counsel was formally served with process. On April 18, 2013, this case was transferred on venue grounds from the federal court in Washington state to the federal court for the District of Colorado. On February 24, 2014, the Colorado federal district court dismissed the case without prejudice for DeAtley's failure to post a cost bond. See Order Adopting Recommendation of United States Magistrate Judge, DeAtley v. Stuart, No. 1:13-cv-01140-REB-BNB,
. In Arguello, we provided an appendix to the Colorado Trial Judges Benchbook, which included a list of questions for the court to use in advising a defendant about the risks of proceeding to trial without an attorney.
Concurrence in Part
concurs in part and dissents in part.
T 24 I concur in part because I believe the district court erred in ordering counsel to represent the defendant at trial if he failed to timely retain new counsel, despite the defendant's demand that they be discharged. Unlike the majority, however, I do not believe the district court abused its discretion by unreasonably and unfairly determining that the attorney could nevertheless effectively represent the defendant, but rather by depriving the defendant of his Sixth Amendment right to retained counsel of choice. Because the majority begins from the premise that the motion to withdraw must be granted, I believe its subsequent analysis, and suggestion that the defendant can be advised that he must find a new attorney ready to go to trial in a short timeframe or otherwise be forced to proceed pro se, to be clearly erroneous and nothing short of a recipe for either interminable delay or violation of the defendant's constitutional rights.
125 While I applaud the majority for acknowledging the significance of the defendant's constitutional right to choice of retained counsel, even though that right is not absolute, and that the defendant may, under certain cireumstances, be held to have implicitly waived his right to counsel altogether, I nevertheless believe the majority has been misled by defense counsel into believing that counsel's ethical obligations entitle them to withdraw. By contrast, unless and until they were released by the court, I believe it was their obligation to advance their client's in
€26 As the majority notes, the defendant has a constitutional right to choice of retained counsel, but that right must yield where otherwise necessary for the efficient administration of justice. As has elsewhere been noted, a criminal defendant may be denied his choice of counsel, for instance, where his chosen counsel lacks the credentials required of attorneys in the jurisdiction, or where his counsel has a conflict of interest so significant as to bar its waiver by the defendant, or even where the efficient administration of justice simply cannot tolerate further delay for the acquisition and preparation of new defense counsel. See, e.g., People v. Brown,
4 27 Where the trial court justifiably determines, notwithstanding a contrary assertion by the defendant, that no good cause entitles him to substitute counsel or, in the case of a non-indigent defendant, that in addition to the absence of good cause, the efficient administration of justice simply cannot tolerate any further continuance, an informed decision by the defendant to nevertheless discharge his current counsel can impliedly waive his right to counsel altogether. In the case of appointed counsel for an indigent defendant, we long ago made clear that as long as the defendant is not actually entitled to substitute counsel and is adequately advised of that fact as well as the risks of proceeding pro se, his choice to discharge current counsel can constitute a waiver of his right to counsel and, instead, the exercise of his corresponding right to proceed pro se, even in the face of his express protestations to the contrary. Arguello,
128 Should current defense counsel be permitted to withdraw before, and therefore in the absence of, such an informed choice by the defendant, however, the defendant will clearly not have waived his right to counsel and will not have exercised his corresponding right to proceed without counsel. By the same token, if the defendant has not (even implicitly) waived his right to retained counsel, the denial of a continuance reasonably calculated to accommodate effective representation by new counsel will just as clearly violate the defendant's Sixth Amendment right. Either because the majority conflates a "conflict" between a defendant and his counsel with a "conflict of interest" on the part of defense counsel, or because it believes a retained counsel is entitled by the Rules of Professional Conduct to withdrawal once a
29 Unlike a "conflict of interest" resulting from prior or concurrent representations or the financial or other competing interests of counsel, see Colo. RPC 1.7-1.9, disputes over quality of representation or compliance with a defendant's wishes do not necessarily present good cause for substitute counsel. While a non-indigent defendant has a constitutional right not to be forged to retain counsel not of his choosing, onee properly advised, he may be presented with a choice to either withdraw his demand to discharge current counsel or proceed to trial without any counsel at all. And while filing a malpractice or ethical claim against defense counsel may, under limited cireumstances, be said to create a "conflict of interest" for defense counsel, such a "conflict of interest" clearly does not arise from filing an action against counsel alone, see, e.g., Mathis v. Hood,
T 30 Although I believe the majority analysis is generally on the right track, I believe the majority nevertheless fails to appreciate that filing an action against counsel and demanding their discharge alone do not constitute good cause for substitution of counsel or require acquiescence in a motion to withdraw. -It is for the trial court to determine, in the totality of cireumstances, whether the defendant should be denied a continuance to retain new counsel, which determination necessarily includes an assessment whether good cause for substitute counsel actually exists. Should the trial court justifiably conclude, according to the standards recently announced in Brown, that the efficient administration of justice forecloses any further continuance for new counsel, and it also advises the defendant of that fact and the risks of proceeding pro se, a decision by the defendant not to proceed with current counsel and remove any impediment to their effective representation will implicitly waive the defendant's right to counsel altogether and constitute an exercise of his right to proceed pro se. But for the trial court's ultimate choice to require continued representation of current counsel rather than requiring the defendant to proceed pro se, I believe its analysis was substantially correct.
{ 31 While the district court would certainly want to reconsider the balance between the defendant's right to counsel of choice and the demands of the efficient administration of justice in light of our recent pronouncements on that subject, see Brown,
. Although the majority attributes, trroughout, its finding of a "conflict of interest" to the trial court, and purports to be baund by this finding, see, e.g., maj. op. 13, in its order denying withdrawal the trial court found only a "conflict" between the defendant and his counsel, and expressly found it to be a conflict created by the defendant for purposes of delay.