ANDREW M. SCHLUCK VS STATE OF FLORIDA

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________ No. 1D22-1380 _____________________________ ANDREW M. SCHLUCK, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Leon County.

J. Lee Marsh, Judge.

January 4, 2023

ORDER ON MOTION TO WITHDRAW AS COUNSEL

B.L. THOMAS, J.

We deny the Public Defender’s motion and amended motion to withdraw from the representation of Appellant Schluck, both of which fail to adequately specify the nature and basis of the asserted conflict. Counsel’s assertion of “irreconcilable conflict of interest” is insufficient because it neglects to provide the “reasons for withdrawal” as required by Florida Rule of General Practice and Judicial Administration 2.505(f)(1) and prevents the Court from “determin[ing] whether any of the grounds for withdrawal set forth in Rule 4-1.16(b), Rules Regulating the Florida Bar, are present, or whether the ‘attorney-client relation’ has ‘deteriorated to a point

1. Determine if there is a viable alternative to withdrawal

from representation which would remedy the conflict of interest and, if it exists, implement that alternative; and

2. Approve in writing the filing of the motion to withdraw.

We include these Uniform Standards for use as an appendix to this opinion to ensure that they are applied and scrupulously adhered to in any such motion. Unmerited motions to withdraw impose an unjustified burden on the public and can harm the client, who may waive any alleged conflict. “However, if the defendant, after being fully informed of the ramifications of his decision, chooses to waive his right to conflict-free counsel, he may do so.” DeArce v. State, 405 So. 2d 283, 285 (Fla. 1st DCA 1981).

And unless there is an actual conflict of interest, no waiver is even required. State v. Alexis, 180 So. 3d 929, 937 (Fla. 2015). In

4 (2) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client; (3) the lawyer is discharged; (4) the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent, unless the client agrees to disclose and rectify the crime or fraud; or (5) the client has used the lawyer’s services to perpetrate a crime or fraud, unless the client agrees to disclose and rectify the crime or fraud. R. Regulating Fla. Bar 4-1.16(a). The following are situations when withdrawal is allowed: (1) withdrawal can be accomplished without material adverse effect on the interests of the client; (2) the client insists upon taking action that the lawyer considers repugnant, imprudent, or with which the lawyer has a fundamental disagreement; (3) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; (4) the representation will result in an unreasonable burden on the lawyer or has been rendered unreasonably difficult by the client; or (5) other good cause for withdrawal exists. R. Regulating Fla. Bar 4-1.16(b).

The Uniform Standards for Use in Conflict of Interest Cases contained in the Final Report of the Article V Indigent Services Advisory Board must be consulted before such motions are filed. The Standards state that there is no conflict of interest where “the attorney and client do not like each other” and where “a client does not want to follow an attorney’s advice.” Uniform Standards for

2. A conflict of interest was present in a closed case

involving the client 3. A victim or state witness has a friend or relative in the office

4. A personal conflict exists between an assistant public

defender and a client. 5. . . . [A] witness supporting the defendant is a client or former client . . . . Id. (emphasis added). Importantly, the Standards specifically provide that information [that] was obtained during an attorney-client relationship does not necessarily create a conflict if the information is equally available in the public record (e.g. the fact of a felony conviction). In addition, the possession of confidential information concerning a former client does not lead to a conflict if that information is irrelevant to the new matter. Id. (emphasis added). Here, the asserted conflict is that the Public Defender did not represent Appellant Schluck at the trial court or in a previous appeal, as he had been appointed conflict-free counsel based on a motion which removed the Public Defender’s office from his representation. Thus, the basis for the motion is an undescribed “conflict of interest” that continues to prohibit the Public Defender from representing Schluck in this appeal. This is inadequate as explained above, because the motions fail to specifically assert

_____________________________

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________

Jessica J. Yeary, Public Defender, and Megan Lynne Long, Assistant Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, Tallahassee, for Appellee.

Appendix*

* The Uniform Standards, including the portions that are stricken through, are presented as in the January⁶, 2004, Final Report of the Article V Indigent Services Advisory Board.

Final Report of the Article V Indigent Services Advisory

1/6/04 Board’s Initial Recommendations Appendix B

UNIFORM STANDARDS FOR USE IN

CONFLICT

OF INTEREST CASES

Final Report of the Article V Indigent Services Advisory

1/6/04 Board’s Initial Recommendations

CONFLICT GUIDELINES

ATTORNEY GUIDELINES FOR CONFLICTS OF INTEREST

The following guidelines will assist attorneys in determining whether or not a conflict of interest exists and what course of action to follow if a conflict is discovered. It is emphasized that each attorney is obligated to independently resolve a conflict issue in accordance with the ethical rules governing the Bar. Further, in resolving conflicts, attorneys must be mindful of the duty of individual loyalty and independent judgement that the public defender owes each individual client. Finally, these guidelines are not binding and each potential conflict must be evaluated in light of the particular facts and circumstances of a given case and individual client.

I.

CONFLICTS IN REPRESENTATION

A.

Conflicts of Interest Involving Codefendants Joint representation of co-defendants is not per se violative of the constitutional guarantee of effective assistance of counsel. Holloway v. Arkansas, 435 U.S. 478, 98 S. Ct. 1173 (1978). However, multiple representation “engenders special dangers”, Wheat v. United States, 486 U.S. 153, 160 (1988), and “is suspect,” Holloway v Arkansas, 435 U.S. at 489-90; “[t]he interest of most codefendants are conflicting.” Baker v. State, 202 So. 2d 563, 555-56 (Fla. 1967); see also Fed.R.Crim.P.44 (c) (directs trial judges to investigate cases involving joint representation) and Freund v. Butterworth, No.93-5317, 1997 WL397181 (11th Cir.July 16, 1997). Thus, attorneys are strongly advised to follow Standard 4-3.5 of the ABA Standards for Criminal Justice (1993), entitled “Conflicts of Interest”: The potential for conflict of interest in representing multiple defendants is so grave that ordinary defense counsel should decline to act for more than one of several codefendants except in unusual situations when, after careful investigation, it is clear either that no conflict is likely to develop at trial, sentencing, or at any other time

Final Report of the Article V Indigent Services Advisory

1/6/04 Board’s Initial Recommendations in the proceeding or that common representation will be advantageous to each of the codefendants represented.

Attorneys should familiarize themselves with Rules 4-1.6, 4-1.7, 4-1.8 and 4-1.9 of the Rules Regulating The Florida Bar. Generally, if by virtue of joint representation, an attorney must forbear from doing something on behalf of a client because of responsibilities or obligations to another client, there is a conflict. Similarly, if by doing something for one client, another client is harmed, there is a conflict.

Early withdrawal from joint representation conserves public defender resources, avoids delay, and better serves the client. Moreover, persisting in the joint representation until both clients are interviewed and an actual conflict is discovered, is likely to result in the public defender having to withdraw from not one, but both defendants’ cases. Additionally, joint representation is likely to result in a greater number of post conviction challenges to counsel’s effectiveness; thus, it is counterproductive to the goal of reducing state expenditures. 2. After a thorough review of the Rules Regulating the Florida Bar, attorneys should also consider the following: a. Does it appear that the attorney will have an opportunity to negotiate one or more of the cases? See U.S. v. Mahar, 550 F. 2d 1005 (5th Cir. 1977). An attorney cannot represent two codefendants, one of whom negotiates a plea, without an express waiver of conflict by the nonpleading co-defendant. See waiver section, infra. b. Does it appear that one client is more culpable than the other(s)? See U.S. ex rel Taylor, 305 F.Supp. 1036 (E.D. Pa. 1969). This will clearly put an attorney in a position of divided loyalty between clients.

Final Report of the Article V Indigent Services Advisory

1/6/04 Board’s Initial Recommendations c. Does it appear that the defense of one client interviewed will be inconsistent with the other(s) or antagonistic to the defense of the other(s)? See Baker v. State, 202 So. 2d 563 (Fla. 1967). d. Has one of the clients given a statement to the police? See Baker v. Wainwright, 422 F. 2d 145 (5th Cir. 1970), cert denied, 399 U.S. 927 (1970) (where one of two defendants represented by the same counsel made a confession and then took the stand to deny it; the court indicated that the prejudice was “self-evident.”) e. Do the co-defendants give conflicting accounts of the events? Here again, loyalty between clients regarding theory of defense may be compromised. People v. Hocquard, 64 Mich. App. 331, 236 NE.2d 72 (1975). f. Has one client given (or is one about to give) confidential information that would be helpful to another client but detrimental to himself or herself? Rule 4-1.7-1.10, 4-1.16, Rules Regulating The Florida Bar. g. Is one of the client’s past record, family situation, character, etc., so different from the other(s) that argument could be made at sentencing that one defendant should receive a lighter sentence than the other? When an attorney is put in a position of arguing that one client led the other down the path to crime, a situation of divided loyalty is created. Commonwealth v. Cox, 441 Pa. 64, 270 A. 2d 207 (1970); Hall v. State, 63 Wis.2d 304, 217 N.W. 2d 352 (1974).

B. Other Miscellaneous Conflicts of Interest

1. If a state witness against a present public defender client is currently represented by the public defender, an obvious conflict exists. See Guzman v. State, 644So. 2d 996 (Fla. 1994). (E.g. The state tries to solicit testimony from a jail cell mate whom the public defender represents.)

Final Report of the Article V Indigent Services Advisory

1/6/04 Board’s Initial Recommendations 2. If a state witness against a present public defender client is a former client of the office, there may be a conflict. See Nixon v. Siegel, 626 So. 2d 1024 (Fla. 3d DCA 1993). (E.g. A former client becomes victim of a case in which a current client is charged, and some aspect of the victim’s character may be at issue.) 3. If investigation uncovers evidence that another person committed the charged crime and that other person is a current public defender client, an obvious conflict exists and other problems may develop during discovery.

4. A public defender employee is the victim in the case.

5. A public defender employee is a State witness in the case.

II.

WAIVER OF CONFLICT/WAIVER OF ATTORNEY-CLIENT PRIVILEGE

A client can waive a potential or actual conflict after being fully informed of the conflict, the nature of the conflict and his/her right to obtain separate counsel. See Lee v. State, 22 FLW D751 (Fla. 1st DCA 1997). However, if a conflict truly exists, it is seldom beneficial to clients’ interests to waive. Waiver is appropriate only when the client’s interests are fully protected; the lawyer must reasonably believe that the conflict will not adversely affect the representation. See R. Regulating Fla. Bar 4-1.7. Moreover, actively seeking waivers may not necessarily conserve state funds since defendants are likely to challenge the waivers by post conviction motion. Any waiver of conflict must be in writing. An attorney cannot discuss what one client has said with another client without an additional waiver of attorney-client privilege. This also must be fully explained to the client and any waiver must be in writing. Moreover, in a codefendant situation, a waiver must be obtained from each client. See Guzman v. State, 644 So. 2d at 999.

Final Report of the Article V Indigent Services Advisory

1/6/04 Board’s Initial Recommendations

III.

INTERVIEWING CODEFENDANTS

Simultaneous interviewing of codefendants compromises the attorney-client privileges for both clients and must be avoided. It is dangerous since one codefendant may provide incriminating information in the presence of the other defendants(s). Whatever possible time may be saved by a joint interview is not worth recklessly endangering the client’s position.

IV.

PROCEDURES TO BE FOLLOWED CONCERNING CERTIFICATION OF

CONFLICTS AND WITHDRAWAL FROM REPRESENTATION

Once an attorney has decided there is a conflict which required withdrawal, the following guidelines should be followed: a. keep the client which the office has represented the longest and withdraw from the most recently-appointed client(s); b. keep the most complex case or the one which will require the most time and expense; c. keep the client who is in the most disadvantageous position (looking at the longest sentence, made the confession, was the “ringleader”, etc.).

V.

ADDITIONAL CONSIDERATIONS

A. There is no conflict of interest because an attorney and client do not like each other. Additionally, there is no conflict because a client does not want to follow the attorney’s advice (unless it involves perjury, or the commission of a future crime). B. The following are not automatic grounds for conflict:

1. A conflict does not necessarily exist if a client files a grievance against an attorney with The Florida Bar. Jones v. State, 658 So. 2d 122, 125 n.2 (Fla.2d DCA 1995). When a client filed a Bar complaint, counsel should consider whether the client is improperly attempting to manipulate the appointment of counsel. However, the filing of a nonfrivolous legal action or complaint against an individual attorney or the office may create a conflict of interest. Attorneys

Final Report of the Article V Indigent Services Advisory

1/6/04 Board’s Initial Recommendations should discuss potential conflicts involving bar grievances with a supervisor or the Public Defender. 2. A conflict of interest was present in a closed case involving the client. 3. A victim or state witness has a friend or relative in the office. 4. A personal conflict exists between an assistant public defender and a client.

5. It is usually not a conflict if a witness supporting the defendant is a client or former client, since the representation usually will not be adverse. C. A defendant whose case is final and is no longer in custody, on probation, or on parole is not a currently represented client under these guidelines. A defendant for whom the office is seeking post judgment relief by a court order is a currently represented client. D. The fact that information was obtained during an attorney-client relationship does not necessarily create a conflict if the information is equally available in the public record (e.g. the fact of a felony conviction). In addition, the possession of confidential information concerning a former client does not lead to a conflict if that information is irrelevant to the new matter. E. If a defendant has been convicted in a previous case while being represented by the office, and there is a colorable claim of ineffective assistance of counsel in the previous case, there is a conflict unless there is a voluntary waiver from the client or there exists another remedy to correct the error, other than an ineffective assistance claim. F. In instances where a conflict is apparent before the Public Defender is appointed, the Public Defender should immediately certify the conflict under Chapter 27. G. Section 27.53(3), Fla. Stat. (1999) gives the court the power to conduct a review when a defendant asserts a conflict of interest. Attorneys should keep in mind, however, that if the basis for the conflict involves confidential client communications, disclosure may violate the

Final Report of the Article V Indigent Services Advisory

1/6/04 Board’s Initial Recommendations attorney-client and therefore be unethical. See Moorman v. Threadgill, 462 So. 2d 573 (Fla. 2d DCA 1985). In addition, a trial court’s denial of a motion to withdraw despite an irreconcilable conflict of interest can be reversed on appeal. See Valle v. State, 763 So. 2d 1175 (Fla. 4th DCA 2000). Moore v. State, 787 So. 2d 205 (Fla. 4th DCA 2001). But see Hunter v. State, 770 So. 2d 232 (Fla. 4th DCA 2000).