Appeal from the Order of April 28, 1986 in the Court of Common Pleas of Wyoming County, Criminal Division, Nos. 251 & 283 of 1984.
James D. Crawford, Philadelphia, for appellant.
Charles P. Mackin, Jr., Deputy Attorney Gen., Harrisburg, for Com., appellee.
Wieand, Olszewski and Cercone, JJ. Wieand, J. filed a concurring and dissenting opinion. Olszewski, J., filed a dissenting opinion.
[ 361 Pa. Super. Page 569]
Attorney Alan M. Lieberman appeals from the lower court's denial of his uncontested petition for leave to withdraw as counsel for his client, Benedict Scheps. The lower court, after a hearing, denied Mr. Lieberman's request to withdraw.
The facts which prompted the filing of the petition for leave to withdraw, as developed at the hearing, are as follows: Mr. Scheps was apparently at one time a successful cheese manufacturer in the Wyoming County area of Pennsylvania, where he had transferred his business from New Jersey. He was President of two family-owned businesses, the Scheps Cheese Company and the Bradford County Farms, Inc., both of which became major employers in the Wyoming County area.
It appeared, without contradiction at the hearing, that Mr. Scheps began as a well-intentioned business man who made substantial financial commitments in moving his plant from New Jersey to the Wyoming County area. At the hearing attorney Lieberman informed the court that if Mr. Scheps had followed legal advice to go into bankruptcy
[ 361 Pa. Super. Page 570]
when his businesses ran into insurmountable economic problems, he would have avoided business irregularities which culminated in a multitude of criminal charges brought against him in both state and federal courts involving 1,100 counts on various deceptive business practices surrounding the failure of the two companies in 1983.
During and following the time Mr. Scheps' problems began, he was represented by his personal attorney, Eugene H. Farber, Esquire, now deceased. Although Mr. Farber was engaged primarily in civil practice he represented Mr. Scheps' corporate co-defendants in the state prosecutions. In federal court Mr. Scheps was represented by Theodore V. Wells, Esquire, a New Jersey lawyer. Mr. Wells was of the opinion he would be in conflict of interest if he were also to represent Mr. Scheps in the federal cases, and so, he recommended Mr. Alan M. Lieberman, a member of a Philadelphia law firm and the appellant here, as one who would be capable of representing Mr. Scheps in the charges brought against him. Mr. Farber, Mr. Scheps' personal attorney, asked Mr. Lieberman to represent Mr. Scheps. Fee arrangements approved by Mr. Scheps called for a $20,000 retainer against the final bill and prompt payment of fees and expenses upon submission. Mr. Lieberman agreed to be Mr. Scheps counsel based on the firm promise that he, as a member of a law firm, would be paid promptly and regularly all fees and expenses as they came due. Mr. Farber, Mr. Scheps' personal attorney, bolstered this understanding with a promise that he would personally see that Mr. Lieberman was paid for his fees and expenses promptly. Before entering his appearance for Mr. Scheps, Mr. Lieberman evaluated the work to be done in the state cases. Part of that work was engaging in conversations and a conference with Deputy Attorney General Charles P. Mackin and his staff regarding a plea bargain arrangement. After such conference, Mr. Lieberman determined that a plea bargain arrangement could be agreed upon which would provide for a sentence to be imposed upon Mr. Scheps which would run concurrent to a federal sentence if the federal sentence was for five years or more imprisonment.
[ 361 Pa. Super. Page 571]
With this prospect, Mr. Lieberman concluded that a long trial could be prevented and he then entered his appearance as counsel for Mr. Scheps.
Because of the widespread publicity in the media in the Wyoming County and adjoining areas regarding the charges made against Mr. Scheps, Mr. Lieberman was compelled to file motions for change of venue or venire and individually sequestered voir dire all of which motions were denied by the lower court despite the fact that the Commonwealth urged the judge to grant at least a change of venire. A motion for the recusal of the lower court was also denied. All of these motions and one seeking review of the trial court's refusal to consider a plea agreement came before this court in petitions for review and we affirmed the lower court on jurisdictional grounds. A petition for allowance of appeal on these issues is currently pending before the Supreme Court of Pennsylvania.
THE PETITION FOR WITHDRAWAL
Mr. Lieberman worked very diligently and continuously in his representation of Mr. Scheps. He encountered substantial and unexpected expenditure of time in working out a plea bargain agreement which turned out to be more difficult than either he or the Attorney General's office had contemplated, the result of which compelled Mr. Lieberman to seek assistance from other lawyers in his firm. Despite the difficulty in working out the plea bargain agreement, Mr. Lieberman did not cease his other efforts on behalf of Mr. Scheps, namely the filing of various motions, briefs and memoranda. When the plea agreement was reached between Mr. Lieberman and the Attorney General's office, it was presented to the lower court for a hearing. However, the lower court refused to entertain the plea under Pa.R.Crim.P. 319, giving as its reason, Mr. Scheps' right under 319 to withdraw his plea in the event the judge did not accept the arrangement between Mr. Scheps and the Commonwealth.
[ 361 Pa. Super. Page 572]
In order to determine the nature of the criminal charges filed against Mr. Scheps, Mr. Lieberman filed motions for discovery and for a bill of particulars which, at the time of the withdrawal hearing, had not yet been answered by the Commonwealth since these motions were stayed pending efforts to resolve the plea bargain agreement. In the summer of 1985, it became apparent that Mr. Scheps would be unable to pay Mr. Lieberman his present unpaid fees which amounted to $6,000 above the original retainer and would be unable to pay fees for future services which were estimated to be in the area of $150,000, in trying a case that would take 2-3 months, at least, to complete, according to Mr. Lieberman's testimony. On February 18, 1986, Mr. Lieberman informed Mr. Scheps of his intention to file a petition for leave to withdraw and on March 17, 1986, he did so file. Mr. Lieberman simultaneously forwarded to Mr. Scheps copies of all motions, briefs and memoranda which he had filed or prepared in the case so that Mr. Scheps would be current with what had happened up to the time the petition to withdraw was filed. At the hearing on the petition for leave to withdraw, it was learned that Mr. Scheps had $13 million worth of judgments against him and that he owed the United States government $1 million in taxes and penalties at the rate of $120,000 per year in interest. All of his assets have been liquidated and even his home has been pledged as collateral for the debts. Prior to the lower court's hearing on Mr. Lieberman's petition for leave to withdraw, the court fixed May 5, 1986, as a date for trial on 6 counts of the 1,100 counts charged against Mr. Scheps. Of great significance is Mr. Scheps' testimony regarding his discharge of Mr. Lieberman as his attorney which we will discuss later in this opinion.
To this point, the question to be decided is whether or not the learned court abused its discretion in denying counsel's petition for leave to withdraw from Mr. Scheps' case. Phoenix Mutual Life Insurance Co. v. Radcliffe on the Delaware, Inc., 439 Pa. 159, 266 A.2d 698 (1970); C.E. Williams Co. v. Pancoast, 412 Pa. 166, 194 A.2d 189 (1963).
[ 361 Pa. Super. Page 573]
There are circumstances which arise in a given case that make it mandatory for a court to permit counsel to withdraw from representation of his or her client. In accordance with the provisions of the Pennsylvania Code of Professional Responsibility (The "Code") adopted by our Supreme Court pursuant to its authority to promulgate rules regulating the practice of law (Pa. Const. Art. V, Section 10(c)), these "Disciplinary Rules", unlike the Ethical Considerations, are mandatory in character. See Preamble to the Code. See Commonwealth v. Wolfe, 301 Pa. Superior Ct. 187, 195-96 n. 7, 447 A.2d 305, 309, n. 7 (1982).
DR 2-110 provides, in relevant part:
(1) If permission for withdrawal from employment is required by the rules of a tribunal, a lawyer shall not withdraw from employment in a proceeding before the tribunal without its permission.
(B) Mandatory withdrawal.
A lawyer representing a client before a tribunal, with its permission if required by its rules, shall withdraw from employment, and a lawyer representing a client in other matters shall withdraw from employment if:
(1) He knows or it is obvious that his client is bringing the legal action, conducting the defense, or asserting a position in the litigation, or is otherwise having steps taken for him, merely for the purpose of harassing or maliciously injurying any person.
(2) He knows or it is obvious that his continued employment will result in violation of a Disciplinary Rule.
(3) His mental or physical condition renders it unreasonably difficult for him to carry out the employment effectively.
(4) He is discharged by his client.
Thus, under DR 2-110(B)(4) where a client dismisses his lawyer, it is mandatory that the lower court grant permission for leave to withdraw. Otherwise, to leave the mandatory withdrawal section of DR 2-110, covering the four instances where withdrawal upon petition is mandatory
[ 361 Pa. Super. Page 574]
to the discretion of the lower court would mean that such court could compel a lawyer to continue to represent his client even though he faced disciplinary measures under (B)(2), supra. This, we are of the opinion, was not intended by the rules. In the instant case, since Mr. Scheps discharged his lawyer, this action came within the ambit of the mandatory withdrawal rule and Mr. Lieberman should have been given permission to withdraw. Furthermore, there is a plethora of cases that hold that a client may discharge an attorney with or without cause. In United States v. Thomas, 450 F.2d 1355 (D.C.Cir.1971) the Court stated: "Many years ago this court held, 'It is settled law that a client, with an order of court, has a right to discharge an attorney with or without cause'". (citation omitted.)". In McDonnell v. Tabah, 297 F.2d 731, 733 (2nd Cir.1961) the court said, "While it is quite true that, under certain circumstances, counsel cannot be relieved without permission of the court (citations omitted) there is no requirement of law or common sense that a court can compel counsel to continue to represent a former client where there has been a termination of the attorney-client relationship before trial by mutual consent."
In Fluhr v. Roberts, 463 F.Supp. 745 (W.D.Ky.1979), a prison inmate filed suit against the local county government seeking return of confiscated goods and for better medical, library, laundry and recreational treatment. The inmate's counsel filed a motion for withdrawal citing irreconcilable differences between himself and the inmate client. The inmate substantiated these differences by requesting counsel's removal. There the court said: "It is clear that the attorney-client relationship may always be terminated by the client with or without cause . . . In the instant case, good cause has been shown by a mutual desire that Mr. Clay be relieved of his court-appointed duty. Therefore, the motion to withdraw as counsel will be ...