People v. Deatley

JUSTICE HOBBS 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 — 63 — resident, with twenty-five counts of white-collar criminal activity involving alleged fraudulent tax credits for land conservation easements in Colorado. In July 2011, the trial court allowed DeAtley's first retained counsel to withdraw based on irreconcilable conflicts. It granted DeAtley a continuance to retain his current defense counsel, Martin Stuart and Jolie Masterson ("defense counsel"). In November 2012, DeAtley informed the court of his intention to discharge defense counsel. They promptly filed a motion to withdraw. 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.1 After concluding that DeAtley was engaging in trial-delaying conduct, the trial court chose the wrong remedy and thereby abused its discretion. The trial court's finding that defense counsel could "balance their personal interests implicated by the Defendant's actions with their obligation to represent him such that they can effectively do so" was arbitrary, unreasonable, and unfair given the trial court's first finding that a conflict existed. It should have granted the motion to withdraw and proceeded in accordance with Crim. P. 44(a), advising DeAtley that he 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 him an Arguello 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 counsel. See People v. Arguello, 772 P.2d 87, 92-94 (Colo.1989). 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." — 64 — The trial court further stated that any time needed for new counsel to prepare for trial beyond that date would not be "such a circumstance." 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.2 DeAtley informed the trial court that he had not retained counsel to replace defense counsel, Defense counsel maintained that they must withdraw from representation under Colo. RPC 1.7(a)(2) because of the lawsuit DeAtley had filed against them. 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 be — 65 — found-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, 772 P.2d at 92-94. 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., 726 P.2d 1108, 1121 (Colo.1986). To constitute an abuse of discretion, the trial court's decision must be manifestly arbitrary, unreasonable, or unfair. People v. Voth, 2013 CO 61, ¶ 15, 312 P.3d 144. Whether the trial court applied the correct legal standard in ruling on defense counsel's motion to withdraw is a question for de novo appellate review. See People v. Matheny, 46 P.3d 453, 462 (Colo.2002). 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, 728 P.2d 1264, 1268 (Colo.1986). A defendant also has the constitutional right to self-representation. Colo. Const. art. 2, § 16; Arguello, 772 P.2d at 92. 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, 2014 CO 25, ¶ 16, 322 P.3d 214. This choice is afforded great deference. Rodriguez v. Dist. Court, 719 P.2d 699, 705-06 (Colo.1986). A lawyer must move to withdraw if discharged by the client or if continued representation violates the Colorado Rules of Professional Conduct. Colo. RPC 1.16(a)(1), (3). When a retained defense attorney files a motion to withdraw under Crim. P. 44(c), the trial court necessarily must make an inquiry into the foundation for the motion when balancing "the need for orderly administration of justice with the facts underlying the request." Crim. P. 44(c). If the attorney files the motion at the request of the client or the client discharges the attorney, resulting in a motion to withdraw, the trial court's discretion is limited by the defendant's right to an attorney of his or her choice. See Brown, 2014 CO 25, ¶ 16, 322 P.3d 214 (citing Rodrigues, 719 P.2d at 705; Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 77 L.Ed. 158 (1932)). However, the right to an attorney of choice is not absolute. We have held that, under certain circumstances, this right must give way to other important considerations involving the administration of justice and integrity of the judicial system. Id. ¶ 17. — 66 — {16 For instance, a lawyer must move to withdraw if continued representation violates the Colorado Rules of Professional Conduct. Colo. RPC 1.16(a)(1), (3); see also, e.g., People v. Doering, 35 P.3d 719, 722 (Colo.2001); Olsen & Brown v. City of Englewood, 889 P.2d 673, 676 (Colo.1995). If, from the facts presented at the hearing, it appears that a substantial conflict of interest exists, or will in all probability arise in the course of counsel's representation, the motion to withdraw should be granted. Allen v. Dist. Ct., 184 Colo. 202, 519 P.2d 351, 353 (1974); Rodrigues, 719 P.2d at 706. Additionally, in Brown, we held that continuance of a trial date requires a balancing of interests involving defendant's choice of counsel and the efficient administration of justice and integrity of the judicial system. 122. In Arguello, we held that, if a defendant abuses the right to an attorney for the purpose of unnecessary delay, the defendant may be required to proceed to trial without counsel. 772 P.2d at 92. The colloquy between the trial court and the defendant should demonstrate on the ree-ord that defendant has knowingly and intelligently waived the right to an attorney, either expressly or through conduct that amounts to an implied waiver of the right to counsel. Id. at 93. 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, 548 U.S. 140, 152, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006) (holding that the trial court must balance "the right to counsel of choice against the needs of fairness and the demands of its calendar"). 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.3 In order for a court to conclude that an accused has impliedly waived counsel, the record as a whole, including the reasons proffered by the defendant for not having counsel, must demonstrate that the defendant knowingly and willingly undertook a course of conduct that evinces an unequivocal intent to relinquish or abandon his right to legal representation. 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 — 67 — sel's motion to withdraw. It should then have given DeAtley an Arguello advisement in light of its concern about DeAtley's trial-delaying tactics. 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, 638 P.2d 8, 10, 13 (Colo.1981), with People in the Interest of M.M., 726 P.2d at 1121. The trial court unreasonably and unfairly determined here 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 defense counsel and DeAtley. Lacking the ability to even communicate with their client, defense counsel could not continue to represent DeAtley effectively in this criminal case. The trial court's finding that defense counsel could "balance their personal interests implicated by the Defendant's actions with their obligation to represent him" was arbitrary, unreasonable, and unfair. 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, 772 P.2d at 92-94. The trial court should then give DeAtley a reasonable, and short, timeframe in which to determine how he would like to proceed and set a trial date. 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. JUSTICE COATS concurs in part and dissents in part, and JUSTICE EID joins in the concurrence in part and the dissent in part. Footnotes [1] 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. [2] 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, 2014 WL 700029 (D.Colo. Feb. 24, 2014) (dismissing the case as a sanction for failure of the plaintiff to post a cost bond). Defense counsel has filed with us the Colorado federal district court's order dismissing the lawsuit, as well as notice that DeAtley has stated to them his intent to appeal dismissal of the malpractice and breach of contract action to the U.S. Court of Appeals for the Tenth Circuit. [3] 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. 772 P.2d at 97-98.