People v. YoungPeople v. Young
OPINION OF THE COURT
These motions involve a similar issue, albeit in different contexts. At issue in People v Young is whether an order should be made relieving the movant law firm and its named associate (collectively, the firm) as attorneys for a defendant who can no longer afford to pay the firm’s outstanding bill, let alone the firm’s anticipated billing associated with a jury trial. The issue presented in People v Dellahoy is whether the firm should be relieved as attorneys for a defendant who initially signed a retainer agreement agreeing to pay the firm a $750 up-front retainer but subsequently expressed an inability to pay and has failed to make even a partial payment.
On May 8, 2010, defendant was charged with driving while intoxicated, aggravated unlicensed operation in the third degree as well as an equipment violation and was issued appearance tickets. On May 12, 2010, defendant was arraigned, and after pleading not guilty, was referred to the Public Defender’s Office (PD).
Initially, the PD undertook to represent defendant. In fact, the PD filed a notice of appearance in May 2010. The firm filed a notice of appearance in August 2010, but, strangely, did not appear with defendant at the August 2010 pretrial conference. Nor did the firm appear with defendant at the October 2010 pretrial conference. Instead, the PD represented defendant at the October pretrial and requested an adjournment for purposes of discovery.
On December 2, 2010, defendant appeared with an associate or principal of the firm. From that date forward, the confusion as to defendant’s representation dissipated, at least for the remainder of 2011.
In March 2011, the firm filed a notice of motion, demand for discovery and demand for a bill of particulars. Later that month, the firm withdrew the motion and advised the court that defendant was prepared to accept the People’s plea offer, a plea of guilty to driving while ability impaired, a traffic infraction, and aggravated unlicensed operation in the third degree, an unclassified misdemeanor, in full satisfaction of all the charges, at the next calendar call conference. However, in April 2011, defendant rejected the offer and requested a jury trial.
In June 2011, the People presented an amended offer, a plea of guilty to driving while ability impaired and facilitating aggravated unlicensed operation, both of which are traffic infractions.
In July 2011, defendant appeared with counsel from the firm for yet another calendar call conference. However, defendant refused to accept the amended offer and again requested a jury trial. Notices were handed out to all parties indicating that the matter was scheduled to be tried by jury on October 6, 2011. However, when the case was called on October 6, defendant was present but not his attorney. Defendant stated in open court that the firm was no longer representing him because of his failure to come up with an additional retainer deposit.
Adding to the confusion, on October 7, 2011, the PD filed a notice of appearance in this case. By letter to this court dated
On August 13, 2012, the firm filed the instant motions in Young and Dellahoy. Both motions were heard on September 20, 2012, and the PD presented vigorous oral argument, including case citations, in opposition to the motion. The People did not oppose either motion.
In addition to other factual contentions raised during the PD’s oral argument, the PD asserted that Young (as opposed to Dellahoy) either fully or partially paid the firm’s initial retainer. The court so finds based upon the absence of the “failure to pay retainer” allegation from the moving papers in Young (in stark contrast to Dellahoy) as well as the firm’s failure to challenge the PD’s assertion during oral argument.
Dellahoy
On August 7, 2011, defendant was arraigned on charges of driving while intoxicated, driving while intoxicated per se, aggravated unlicensed operation in the third degree and speeding. After pleading not guilty, he was referred to the PD.
On September 14, 2011, defendant signed a retainer agreement wherein he agreed to pay the firm a standard hourly rate together with a “$750 up front retainer.” On the same date, and without waiting to see if defendant would make good on his retainer, the firm filed a notice of appearance.
From September 2011 through December 2011, the firm appeared at one pretrial conference — November 10, 2011. Defendant failed to appear at that time, and the firm, in order to prevent the issuance of a bench warrant, “stood in” for defendant and requested an adjournment.
Whereas the firm’s rendition of substantial legal services in Young is beyond dispute, the firm has essentially rendered no legal services in Dellahoy, with the exception of a single court appearance at which the associate stood in for the sole purpose of preventing the issuance of a bench warrant.
Analysis
Effective April 1, 2009, the Code of Professional Responsibility was repealed and replaced by the Rules of Professional Conduct (22 NYCRR 1200.0). A comparison of DR 2-110 (c) (22 NYCRR 1200.15 [c] [repealed eff Apr. 1, 2009]) and its successor, rule 1.16 (c), reveals that the two provisions are substantially similar, if not verbatim copies.
As relevant to the movant’s allegations, rule 1.16 (c) provides that withdrawal is permitted where:
“withdrawal can be accomplished without material adverse effect on the interests of the client” (rule 1.16 [c] [1]);
“the client deliberately disregards an agreement or obligation to the lawyer as to expenses or fees” (rule 1.16 [c] [5]);
“the client knowingly and freely assents to termination of the employment” (rule 1.16 [c] [10]);
“the client fails to cooperate in the representation or otherwise renders the representation unreasonably difficult for the lawyer to carry out employment effectively” (rule 1.16 [c] [7]).
In the instant cases, the court finds no merit to the tacitly asserted “free and knowing assent” basis for withdrawal. Although the movant alleges that Young “no longer wishes my representation,” and that Dellahoy “would be seeking the assistance of the Public Defender and understood that our law firm would not be representing him anymore,” the movant has failed
In Young, where the firm alleges that the client was advised “as to what a fair and equitable settlement of this matter would be, and ... is not following my legal advice,” movant fails to establish the “lack of client cooperation” ground for withdrawal. “[A]n attorney is not entitled to withdraw as counsel based on the decision of a defendant to exercise his or her right to trial” (People v Woodring,
Relying on Woodring, decided under the now repealed Code of Professional Responsibility, the Public Defender cogently argues that a client’s inability to pay his or her retained attorney is never enough to justify withdrawal, and there must be a deliberate disregard of the obligation. In Woodring, the Fourth Department found no abuse of discretion in a trial court’s decision to deny a retained counsel’s motion to withdraw. Among other reasons offered in support of the motion to withdraw was the defense attorney’s claim that “defendant’s family had ‘exhausted’ their financial resources and could no longer afford to pay him” (
In this court’s view, Woodring represents a sui generis application of the “deliberate disregard” language to a case where the client was, in effect, fighting to keep his attorney and ap
In Stair v Calhoun (
In opinion 598, the Committee concluded that
“a client ‘deliberately disregards an agreement or obligation’ to pay legal fees whenever the failure is conscious rather than inadvertent, and is not de minimus [sic] in either amount or duration . . . This would be so even where the failure results from inability to pay . . .
“The amount of work performed and paid for in comparison to the work remaining, the amount of the fees paid to date, and the likely effect on the client are some of the factors that need be assessed in ascertaining whether withdrawal is proper in a particular case.”
In Young, where defendant appears to have met his initial obligation to the firm, but now indicates an inability to pay, and where the matter has gone well past the discovery and motion stages and is ready to be tried, the court finds that, even under the United States District Court’s liberal construction of the “deliberate disregard” criterion, withdrawal is improper.
In stark contrast, in Dellahoy, where defendant never deposited a retainer, where insubstantial services have been rendered and where the firm notified the court of its intention to withdraw early on in the litigation, the court finds that withdrawal should be permitted. Furthermore, withdrawal at this stage will not significantly prejudice defendant.
Based upon the foregoing, the court denies the firm’s motion to withdraw in Young.
Notes
. The court has never received a copy of the alleged substitution of counsel. Furthermore, although he was the Public Defender in all of 2011, R Thomas Rankin’s appointment expired and was not renewed in January or February 2012.
. A new subdivision, applying to lawyers representing organizational clients, was added (see rule 1.16 [c] [11]).
. In the court’s view, even a fully executed substitution of counsel would not conclusively establish a free and knowing assent under the circumstances presented herein where the firm is not getting paid and is willy-nilly steering the client in the direction of the Public Defender.