Commonwealth v. Scheps

OLSZEWSKI, Judge,

dissenting opinion:

Although neither party raises the issue, I note that this is a final, appealable order, and thus, jurisdiction is properly before this Court. See Brown v. Pennsylvania Railroad, 435 Pa. 84, 255 A.2d 554 (1969). As for the merits of this appeal, I respectfully dissent. The majority finds that withdrawal is authorized pursuant to both the mandatory provision of DR 2-110(B)(4) and the permissive provision of DR 2-110(C)(l)(f). In my view, neither provision is supportive of a grant of withdrawal under the peculiar facts of this case. A chronological review of those facts is particularly instructive.

In October of 1984, Mr. Lieberman was asked to represent Mr. Scheps. The fee arrangement agreed upon called for the payment of a $20,000 retainer against the final bill and the payment of monthly bills upon submission.1 Mr. Lieberman acknowledges that before entering his appearance for Mr. Scheps, he evaluated the work to be done and spoke with representatives of the attorney general’s office. In his own words, Mr. Lieberman “concluded that there was little danger that there would be substantial lawyer time required in dealing with the state charges.” (Notes of Hearing 4/25/86 12-13, R.R. 28a-29a). Mr. Lieberman also acknowledges that he became involved with Mr. Schep’s case “only because of the assurances of the members of the attorney general’s office that a plea agreement could be reached” and because Mr. Schep’s personal attorney, Mr. *584Farber, gave him a personal assurance the legal bill would be paid. (Id. at 3, R.R. 7a).

Mr. Lieberman’s expectation that a plea agreement would dispose of this case proved to be erroneous; on October 2, 1985, the trial court refused to accept the proposed plea much to the surprise of both the defense and the Commonwealth. Mr. Lieberman continued, however, to diligently and expertly represent Mr. Scheps before the trial court as well as before this Court and the Supreme Court of Pennsylvania.

In the meantime, Mr. Lieberman learned that his client had become insolvent. Mr. Scheps and his personal attorney, Mr. Farber, continued, nevertheless, to give their assurances that the legal bills would be paid.

Mr. Farber met an untimely death on February 28, 1986. Coincidentally, Mr. Lieberman informed Mr. Scheps that same day that he would seek to withdraw from the case.

On March 18, 1986, Mr. Lieberman filed a motion to withdraw citing two grounds: (1) difficulty in dealing with Mr. Scheps, both as a result of his failure to pay the fees owed, and in view of the death of Mr. Farber who acted as an intermediary;2 and (2) Mr. Scheps’ inability to pay the legal fees. At the hearing held on this matter a new and different ground for withdrawal appeared to arise. When questioned as to his feelings on this motion, Mr. Scheps testified as follows:

Q. Just one last question. Do you wish to continue to proceed with Mr. Lieberman?
A. No, I do not. I — I cannot in good conscience continue to ask Mr. Lieberman or his firm to continue as my counsel, knowing that there’ll be additional debts of over a hundred thousand dollars, and absolutely no way that I’ll ever be able to pay them.
Q. Now, Mr. Scheps, you’re not dissatisfied with the representation that Mr. Lieberman has provided you are you?
*585A. No. I think he’s done a decent job. I’m not dissatisfied.
Q. No complaints with his legal workmanship?
A. No.
Q. Your main concern is that you will be unable to pay him, well, first of all, for past services rendered, and for anything in the future, is that correct?
A. That’s my main concern, yes.
Q. And that is why you do not wish to go forward with him?
A. Yes, if I could explain. Originally I didn’t know it was going to take this much money and this much time, and I cannot continue to allow a man, who I am sure it is going to affect his career in his company, to continue to go deeper in debt. I, you know, there is no way. In the beginning I thought I would be able to pay him. Gene Farber, who was a friend of mine, assured me that he would help me, as his firm made more money, and so in the beginning I thought I would be able to. There would be no problem. We didn’t think we were going to go into this again, this size of a situation. So now I know it is impossible, I mean it is just an impossible task for me to pay him. If I made a quarter of a million dollars a year, I could never pay him, because the government would take their share and then there would be all the liens against me. So there is absolutely no way I could ever make enough money to pay him, or anybody.

(Notes of hearing 42-44, R.R. 58a-60a). Following this testimony, counsel for the Commonwealth noted that it was not entirely clear on the record that Mr. Lieberman had been, in fact, discharged by Mr. Scheps. As a result, Mr. Scheps was recalled to the witness stand and asked one question:

Q. Mr. Scheps, do you discharge Mr. Lieberman?
A. Yes, I do.

*586(Notes of hearing 51, R.R. 67a). Hence, the discharge of 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 discharged, the court must grant permission for leave to withdraw. DR 2-110(B)(4). Because of the nature of the confidential relationship between client and counsel, the client may discharge counsel with or even without cause. 7 Am.Jur.2d Attorneys at Law Sec. 168 (1980). Common sense and experience teach us, however, that even where the discharge is without cause, 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 rise to this case, in particular, the fact that Mr. Lieberman was not “discharged” until after the withdrawal motion was filed, it becomes obvious that this is not a case where the client severed the attorney-client relationship. There was no breakdown of the attorney-client relationship; Mr. Scheps testified that he was satisfied with Mr. Lieberman’s performance. It takes no stretch of the imagination to see that Mr. Scheps was placed in the untenable position of “discharging” his counsel only when questioned at a hearing on the motion and did so only because of financial constraints. I would not permit such economic arm-twisting to be used as the basis for turning a motion for permission to withdraw into one based upon the mandatory withdrawal provisions. I would, therefore, find that the mandatory withdrawal provision, DR 2-110(B)(4), is simply inapplicable.

Nor do I believe that a basis exists for the grant of permissive withdrawal. The reason advanced by appellant — the inability to pay the legal fees — is, beyond doubt, the motivating factor in Mr. Lieberman’s desire to withdraw. The Code of Professional Responsibility permits withdrawal of counsel where the client “deliberately disregards” an agreement or obligation as to counsel’s fees or expenses. DR 2-110(C)(1)(f). To date, Mr. Scheps has *587made payments totaling $30,000; an initial payment of $20,000 and a second payment of $10,000. In comparison, Mr. Lieberman claims he has billed over $80,000 in fees and $6,000 in disbursements. Mr. Scheps testified that he is unable to pay the sums owed; all of his property is mortgaged and approximately $13 million in liens have been filed against him.

Given Mr. Scheps financial plight subsequent to entering the fee agreement with Mr. Lieberman, I cannot say that he deliberately3 disregarded his obligations; it was simply impossible for him to make any payment. Thus, I would find no abuse of discretion in the court’s refusal to permit Mr. Lieberman to withdraw from the case pursuant to DR 2-110(C)(l)(f).

A review of the Ethical Considerations and Disciplinary Rules accompanying Canon 2 — Withdrawal of Counsel, indicates that all the rules and principles regarding the right of an attorney to withdraw are geared toward protecting three interests: the legal rights of the client, the attorney’s interests in receiving fair treatment by the client, and the integrity of the judicial system. I believe that by permitting counsel to withdraw, the majority elevates the attorney’s interest in being compensated over the interests of the client and the judicial system.

Because a defendant holds a qualified right to representation by counsel of choice, this case has constitutional underpinnings. As noted above, Mr. Scheps has no quarrel with the performance of his retained counsel. Mr. Lieberman has already received a substantial retainer. His client, on the other hand, faces in excess of 1,000 counts against him; the trial promises to be both lengthy and complicated. Permitting the withdrawal of counsel who, at this time, is both extremely intimate with the intricacies of this case and *588well-equipped to handle such a complex trial, would elevate counsel’s right to be treated fairly over the client’s right to counsel of choice. In addition, withdrawal would unnecessarily impede the efficient administration of justice.4

This is not to say, however, that counsel is not entitled to compensation. As a general rule, an attorney is not obligated to render legal services for those unable to make payment in the absence of a court appointment. See EC 2-26. I am not so naive as to be blinded from the real-life fact that attorneys must earn a livelihood; I also suspect few clients enlist the aid of private counsel with the expectation that representation will be given free of charge. See EC 2-16, EC 2-17. However, once an attorney agrees to represent a client, counsel implicitly agrees to proceed on the client’s behalf to the conclusion of the matter. 7 Am.Jur.2d Attorneys at Law Sec. 173 (1980). See EC 2-31, EC 2-32. In this case, however, Mr. Lieberman — a partner in a prominent firm — conducted a thorough investigation before agreeing to represent Mr. Scheps. Although he entered his appearance in this case and accepted a retainer expecting the court’s acceptance a plea agreement, he should have been cognizant of the possibility that the plea would be rejected and the case scheduled for trial.5 Mr. Lieberman has already undertaken his obligations to his client; those obligations should not cease merely because the case became more complicated or no longer is as profitable as originally contemplated. I would, therefore, affirm the trial court’s denial of the motion to withdraw.

. The fee agreement was not made part of the record. Neither party disputes the terms of the agreement as recalled by Mr. Lieberman in his testimony at a hearing on this matter.

. Mr. Lieberman has abandoned this first ground on appeal.

. An act is "deliberate” where it results from careful and thorough consideration or is characterized by an awareness of the consequences. Websters New Collegiate Dictionary at 297 (1980). I cannot conclude that Mr. Scheps carefully pondered before deciding not to pay the legal fees. He simply could not do so.

. We note that the motion to withdraw was filed in March of 1986 and trial was set to begin on May 5, 1986. Although Mr. Scheps has waived his right to a speedy trial, both the court and society have an interest in the efficient and expeditious administration of justice.

. Throughout the course of argument in this matter, Mr. Lieberman makes repeated reference to the assurances of payment made by Mr. Farber. The payment of legal fees from one other than the client is prohibited except with the consent of the client after full disclosure. DR 5-107(A), (B). See EC 5-21, EC 5-22, EC 5-23. Since Mr. Farber is deceased, I need not determine the propriety of such assurances. I note, however, that the absence of an assurance of payment is undoubtedly significant in the present action.