Our legal system is adversarial. It was set up that way. Thus, it is inevitable that relationships between defense attorneys and prosecutors and the courts are sometimes quite contentious. All three entities harbor agendas that are diametrically opposed. That’s why legislators and appellate court have spelled out specific rules of procedure and evidence that keep all three components of this adversarial system in check.

Though rare, it sometimes happens that a criminal defendant and his attorney also find themselves at odds over any number of issues – finances, strategies, tactics, etc. – that render effective communication, much less representation, virtually impossible. The higher courts have carved out quite specific and strict rules the courts must follow, particularly at the federal level, in these kinds of conflicts.

On May 13, 2015, the Ninth Circuit Court of Appeals was forced to address how the trial court handled the conflict between Richard Carl Brown and his retained counsel in a serious criminal case.

The federal Government’s case against Brown began when Nevada law enforcement officials discovered a computer that had been sending and receiving child pornography through FrostWire, a peer-to-peer file sharing program. The computer was linked to Brown, who ran a computer business out of his home. An ensuing search of the residence, which Brown shared with two other people, discovered a computer storing a pornographic video, as well as other hidden folders containing 900 files of child pornography. Brown was indicted on four counts of advertising, transporting, receiving, and possessing child pornography. He was subsequently convicted by a jury and sentenced to four concurrent 180-month terms.

Brown secured the services of a retained attorney to whom he paid $50,000 for his representation. He made payments on an installment basis, ultimately fulfilling the entire fee. Two and one-half weeks before the trial the attorney filed a motion to withdraw as counsel, citing “strained communications” and an “actual conflict of interest.” The motion was supported by an email from Brown which requested the attorney’s withdrawal and indicated Brown would seek court-appointed counsel.

The trial court held a hearing on the motion which featured some biting but compelling testimony. Defense counsel at the outset informed the court that the motion to withdraw was based on “extreme divergence of philosophical opinion as to how the case should be carried on” between counsel and client. The court did not find this reason persuasive, asking defense counsel that “actually, is it more based in failure for him to be able to pay your fee?” The court then informed counsel that he could not withdraw for failure to pay fees absent leave of the court which the court made clear it was not inclined to grant.

Defense counsel responded, telling the court that Brown’s financial situation “really had nothing to do with this;” that the “problem” was a matter of “trust,” not fees. The court then asked Brown if he had any “objection” to counsel’s motion to withdraw. Brown stated he did not. The court then spun out its view of the “problem” from its vantage point:

“Now, here we are, of course, on the eve of trial. Trial has been scheduled. And just because your client is disagreeing with you on recommendations regarding plea or trial, that is not a basis to permit withdrawal.”

These kinds of attorney/client conflicts are never suited for the kind of narrow path upon which the court tried to direct this particular conflict. Without any factual basis, the court then offered its basis for the narrowest trail:

“You know, this is scheduled for trial. Obviously if I allow you to withdraw and appoint now – because he would qualify, I assume, for a public defender [-] and appoint a public defender, that will mandate a continuance of trial so that person could be brought up to speed.

“So I find great fault with your late filing of this motion, on the eve of trial, and what appears to be simply because there’s a disagreement over payment and your inability or unwillingness, to prepare for trial.

“Your client has the right to insist upon trial as opposed to plea. That’s the problem. So you’ve got to overcome those concerns in your argument.”

This harsh, unforgiving opinionated stand by the court, which was not grounded in fact, was met by counsel once again telling the court that the “dispute” was not about money and that he was prepared for trial. The court then engaged Brown in the following colloquy:

THE COURT: … What is the disagreement, sir, that causes you to want a difference attorney?

THE DEFENDANT: Your Honor, there’s been – I guess we see things differently.

THE COURT: Sure. What do you see differently?

THE DEFENDANT: I have tried on many occasions to talk to them about my defense, and they have never talked about a defense. They have always said hold on, this is how it works, just keep waiting, keep waiting, keep waiting.

THE COURT: You’re talking about anticipating a potential plea?

THE DEFENDANT: Always. It was always about a plea. Ever since we met.

THE COURT: … What do you see differently from your attorney?

THE DEFENDANT: … [W]e never really discussed anything about a defense. They didn’t want to hear about why I was not guilty. They didn’t want to hear about this.

… I had witnesses and everything. We never talked about that. The first time I was asked about a list was after the first time I saw a plea, which is in the beginning of …

THE COURT: So what I hear you saying, sir, is you don’t feel they were diligent in presenting defenses you wanted them to present?

THE DEFENDANT: Not at all …

The court then tried to allay Brown’s concerns, telling him that defense counsel was experienced and bound by ethical duties to present the defenses Brown wished. The court added that it did not see “any basis for the disagreement” other than Brown’s concern that counsel had not “diligently pursued the requested defenses.”

The court then asked defense counsel: “So, again, why should I release you?”

Defense counsel answered by raising the prospect of a 28 U.S.C. Sec. 2255 motion being presented “somewhere down the road,” presenting the issue of ineffective assistance of counsel.

This suggestion seemed to infuriate the court. Telling defense counsel that if he filed such a motion, “I’ll require you to refund the entire 50 grand.”

Counsel tried to reason with the court, saying he brought up the prospect a Sec. 2255 motion only to emphasize the level of “mistrust” between him and Brown.

The court responded, “I’ve got it.” He then denied the motion to withdraw.

The Ninth Circuit made it abundantly clear in its May 13 decision that it felt the trial court mishandled the motion to withdraw. Relying upon a 2010 precedent, the court said a defendant has a constitutional right to discharge retained counsel for any reason “unless a contrary result is compelled by the ‘purposes inherent in the fair, efficient and orderly administration of justice;’” and if the court allows a defendant to discharge his retained counsel, and the defendant is financially qualified, the court must appoint counsel pursuant to the Criminal Justice Act.

The appeals court was particularly critical of the trial court for not being able to provide any reasons after the detailed inquiry that its denial of the motion to withdraw was necessary to the fair, efficient, and orderly administration of justice. With that, the court vacated Brown’s four convictions and remanded the case for a new trial.

Forced representation almost invariably never ends well. This is a classic example of why it does not.