J-S34030-17

                                  2017 PA Super 414

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

BRIAN THOMAS MAGEE, JR.




                                                      No. 3459 EDA 2016
APPEAL OF: SCHINDLER LAW GROUP,
LLC, THOMAS K. SCHINDLER, ESQUIRE,
AND JOHN H. PAVLOFF, ESQUIRE


                 Appeal from the Order Dated October 19, 2016
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0003719-2015
                                          CP-15-CR-0003720-2015
                                          CP-15-CR-0003721-2015

BEFORE: BOWES, J., SOLANO, J., and PLATT, J.*

OPINION BY SOLANO, J.:                            FILED DECEMBER 27, 2017

        Appellants Schindler Law Group, LLC, Thomas K. Schindler, Esquire,

and John H. Pavloff, Esquire (collectively, “Schindler”) appeal from the order

denying Schindler’s motion to withdraw as criminal defense counsel for Brian

Thomas Magee, Jr. We affirm.

        Magee was arrested and imprisoned in September 2015 for defrauding

three customers by accepting deposits for home improvements and then




____________________________________________
*
    Retired Senior Judge assigned to the Superior Court.
J-S34030-17


failing to perform the work. 1 The three cases were consolidated for trial.

Magee remained in custody because he was unable to post bail.

       Magee retained Schindler in October 2015. According to Schindler, its

engagement letter stated that Schindler would represent Magee for a flat fee

that did not include representation at trial, and that a separate engagement

letter and an additional fee would be required for trial representation.

Schindler’s Brief at 12.2

       On March 15, 2016, Schindler moved for a temporary modification of

Magee’s bail. Magee’s defense was that his failure to complete the work at

the three victims’ homes was a breach of his contractual obligations, but not

a criminal offense.       Schindler claimed it could not prepare that defense

without Magee’s help in gathering documents and other materials that were

voluminous and had to be assembled and reviewed prior to trial. On May 4,

2016, the trial court modified Magee’s bail to allow his release to assist

Schindler with trial preparation.

       After   several     continuances,       Magee’s   trial   was   scheduled   for

October 31, 2016. The trial court summarized:
____________________________________________
1
 More specifically, he was charged with home improvement fraud, 73 P.S.
§ 517.8(a)(1) & (2), and theft by deception, 18 Pa. C.S. § 3922(a)(1).
2
  The engagement letter is not in the certified record or the reproduced
record, and although Schindler purports to quote the letter in its brief, we
may not consider it in that form. See Commonwealth v. Preston, 904
A.2d 1, 6 (Pa. Super. 2006) (failure to ensure that document is in certified
record “cannot be remedied merely by including copies of the missing
documents in a brief”), appeal denied, 916 A.2d 632 (Pa. 2007); Pa.R.A.P.
1921 Note (documents must be included in the certified record or, in
appropriate cases, the reproduced record).

                                           -2-
J-S34030-17


             [Magee]’s cases were first listed for trial in December 2015
       and subsequently continued by [Schindler] seven times. Each
       time a Motion for Continuance was submitted, the reason given
       by [Schindler] was that more time was needed for review of
       [Magee]’s documents in preparation for trial.             The last
       continuance request and Order dated August 12, 2016 states,
       “additional time needed for trial preparation; date certain for
       commencement of trial: Tuesday, September 20, 2016; counsel
       attached for trial beginning on that date[.]” The attorney for the
       Commonwealth realized within a day or two of that Continuance
       Order that [he] was unavailable in September, so the parties
       agreed to a special listing for trial and attachment of counsel.
       That notice of attachment for a four day trial commencing
       October 31, 2016 was sent to [Schindler] by Court
       Administration on August 17, 2016.

Trial Ct. Op., 11/16/16, at 2 (emphasis in original).

       On October 14, 2016, two weeks before Magee’s trial was scheduled to

begin, Schindler filed a motion to withdraw as Magee’s counsel.        In that

motion, Schindler represented that most, but not all, of the fixed fee under

its letter agreement with Magee had been paid; it had offered to perform

additional services for Magee, including trial representation, in exchange for

an additional fee; and Magee had replied that he was unable to pay an

additional fee.    Mot. to Withdraw at ¶¶ 6, 10, 11.    Schindler also averred

that it had “given reasonable warning” to Magee that if it did not receive an

additional fee, it would withdraw as counsel. Id. at ¶ 13.

       On October 18, 2016, the trial court held a hearing on Schindler’s

motion to withdraw.        Magee arrived late for the hearing. 3 Before Magee



____________________________________________
3
  The hearing had originally been scheduled for November 7, 2016; it was
rescheduled on October 17, 2016. Schindler informed Magee of the change,
(Footnote Continued Next Page)
                                           -3-
J-S34030-17


arrived, Attorney Pavloff told the court that he had given Magee a copy of

the motion to withdraw but did not know Magee’s position on it.                   N.T.,

10/18/16, at 2. Pavloff further represented that Magee had paid “almost all”

of the fixed fee under the agreement, but had not paid for trial. Id. at 3.

When the court reminded Pavloff that Magee’s case was “specially listed long

ago,” Pavloff responded that, although “we have known for some time it’s a

trial,” he expected either that Schindler would be paid an additional fee for

trial or that the case would be resolved through a plea agreement. Id.

      When Magee arrived, Pavloff asked Magee if he opposed Schindler’s

motion, and Magee responded, “No, not at all.”                   N.T., 10/18/16, at 9.

Magee said that, starting the previous week, he had begun consultations

with three other attorneys.         Id.   When the court asked how he could pay

another attorney when he could not afford to pay Schindler, Magee

responded, “Have to go to work.”                 Id. at 10.   The trial court expressed

concern that Magee would not be able to pay any attorney and would be

ineligible for a public defender because he was working. Id.

      The Commonwealth opposed the motion to withdraw because it would

delay the trial.        The Commonwealth pointed out that it had already

subpoenaed twelve witnesses and would be ready for trial on the scheduled

October 31, 2016 trial date. N.T., 10/18/16, at 5. The Commonwealth was



                       _______________________
(Footnote Continued)
and he indicated that he would “do[] his best to get [there].”                    N.T.,
10/18/16, at 2.

                                            -4-
J-S34030-17


not optimistic about a possible plea bargain. Id. At the end of the hearing,

the trial court took the matter under advisement.

       The next day, October 19, 2016, the trial court issued an order

denying Schindler’s motion to withdraw.          In a footnote, the trial court

explained its reasoning, emphasizing the following facts:

       1. [Schindler] stated to the court and averred in [its] Motion
       that [it] has been mostly compensated for [its] work to date.
       We note [Schindler] did not aver the sum owed, the sum paid, or
       the work that has not been compensated.[4]

       2.    [Schindler] seeks to withdraw two weeks prior to the
       commencement of a specially scheduled, discovery intensive jury
       trial set to commence on October 31, 2016. We note that the
       special date was issued to the parties on August 17, 2016.

       3. [Schindler] does not state in [its] Motion how notice was
       given or when [it] gave notice to [its] client about [its] desire to
       withdraw and therefore, we cannot assess whether sufficient
       notice was given to [Magee]. Counsel did indicate that he was
       unaware of his client’s position on the Motion and therefore we
       can assume that he had not had any discussions with his client
       on the topic.

Order, 10/19/16, at 2-3. The court concluded that Schindler “waited until

the last minute to make the court aware of [its] issues with [its] client,” and

“failed to take steps to avoid the foreseeable prejudice of delaying trial, and



____________________________________________
4
   In its brief to this Court, Schindler states that when it filed its motion to
withdraw, Magee had paid it $3,225 and owed $1,150, and that the cost of
trial would be approximately $8,000 to $10,000, without costs and
expenses. Schindler’s Brief at 13, 16. These figures were not provided to
the trial court, and we therefore will not consider them in determining
whether the trial court erred. See Commonwealth v. Wrecks, 931 A.2d
717, 722 (Pa. Super. 2007) (appellate court will not consider assertions that
appear only in briefs).

                                           -5-
J-S34030-17


delaying the ability of [its] client to employ other counsel prior to the jury

trial date of October 31, 2016.” Id. at 3.

      On October 27, 2016, Schindler filed a notice of appeal. By an order

entered December 13, 2016, this Court directed Schindler to show cause

why the appeal should not be quashed as interlocutory.          Schindler filed a

response in which it contended that the trial court’s order denying the

motion to withdraw was a collateral order appealable under Pa.R.A.P. 313.

On January 6, 2017, this Court discharged the show-cause order and

deferred resolution of the appealability issue to this panel.

      On February 6, 2017, Schindler filed its brief, in which it includes the

collateral order issue as the first of three questions presented:

      Does the Superior Court have jurisdiction to review the current
      matter as an appeal as of right from a collateral order pursuant
      to Pa.R.A.P. 313?

      Did the lower court commit an error of law and/or an abuse of
      discretion when it failed to grant an unopposed Motion for Leave
      to Withdraw as Counsel prior to trial where the undisputed
      testimony indicated that the client agreed and understood that:
      he had engaged Counsel only to represent him up to — but
      excluding trial, he had not paid Counsel in full under that original
      engagement, had not retained Counsel for representation at
      trial, and did not oppose Counsel’s withdrawal?

      Did the lower court commit an error of law and/or an abuse of
      discretion when it denied Counsel’s Motion to Withdraw in a
      criminal matter on the basis of erroneous conclusions and
      inferences drawn from “omissions” in the factual record and its
      own conclusion, unsupported by the testimony presented, that
      the client was not given “reasonable warning” about Counsel’s
      intention to withdraw prior to the commencement of trial?

Schindler’s Brief at 10-11.


                                      -6-
J-S34030-17


                                      Jurisdiction

        Schindler contends that the trial court’s order denying its motion to

withdraw is a collateral order appealable under Rule 313(b).                  The

Commonwealth agrees.          See Commonwealth’s Brief at 7-8.5 “Whether an

order is appealable under Pa.R.A.P. 313 is a question of law. As such, our

standard of review is de novo and our scope of review is plenary.” Rae v.

Pa. Funeral Dir. Ass’n, 977 A.2d 1121, 1126 n.8 (Pa. 2009).

        The Supreme Court of Pennsylvania has explained:

        Otherwise known as the collateral order doctrine, [Appellate]
        Rule 313(b) provides that an interlocutory order is collateral and,
        therefore, immediately appealable, if it is: “[1] separable from
        and collateral to the main cause of action where [2] the right
        involved is too important to be denied review and [3] the
        question presented is such that if review is postponed until final
        judgment in the case, the claim will be irreparably lost.”

K.C. v. L.A., 128 A.3d 774, 777 (Pa. 2015) (quoting Pa.R.A.P. 313(b)).

“With regard to the first prong of the collateral order doctrine, an order is

separable from the main cause of action if it is entirely distinct from the

underlying issue in the case and if it can be resolved without an analysis of

the merits of the underlying dispute.”           Id. at 778 (quotation marks and

citation omitted). With regard to the second prong, “a right is important if

the interests that would go unprotected without immediate appeal are

significant relative to the efficiency interests served by the final order rule.

Notably, the rights involved . . . must be deeply rooted in public policy going


____________________________________________
5
    The trial court’s opinion does not address this issue.

                                           -7-
J-S34030-17


beyond the particular litigation at hand.” Id. at 779 (quotation marks and

citations omitted).   With regard to the third prong, a right sought to be

asserted on appeal will be “irreparably lost” if, as a practical matter, forcing

the putative appellant to wait until final judgment before obtaining appellate

review   will   deprive   the   appellant   of   a   meaningful   remedy.   See

Commonwealth v. Harris, 32 A.3d 243, 248-51 (Pa. 2011).

      Neither party has cited, nor have we found, controlling authority

addressing whether the denial of a petition to withdraw as counsel, based on

a client’s inability to pay, is a collateral order under Rule 313. However, in

Brown v. Pennsylvania R.R., 255 A.2d 554 (Pa. 1969), the Supreme Court

of Pennsylvania held that an order dismissing an attorney’s petition to

withdraw was immediately appealable. 255 A.2d at 555 n.1. In Brown, an

attorney hired by an insurance company to represent its insured sought to

withdraw after the insurance company concluded that the claim was not

covered under the insured’s policy. Id. at 555. The Court explained why

the denial of counsel’s motion to withdraw was appealable:

      Even though the often-used rationale for appealability that
      appellant has been put “out-of-court” is particularly inapt in the
      instant situation where appellant has actually been forced into
      court, it is apparent that as to him, the order is an absolute
      denial of the relief sought, and could never be raised at any
      other time if it were not appealable now.

Id. at 555 n.1.




                                       -8-
J-S34030-17


       Brown was decided before the Supreme Court of Pennsylvania

adopted the collateral order doctrine 6 and before the extensive revision in

1992 of the definition of a final order under Appellate Rule 341.      Before

1992, an order was deemed an appealable final order if some part of it had

some aspect of finality or put a party “out of court” on an issue. See G.R.

Darlington, et al., 20 Pa. Appellate Practice § 341:1 (West’s Pa. Prac. Ser.

2016). The Brown decision was a product of that pre-1992 framework, and

the order in Brown would not be appealable under the current version of

Rule 341. In the years between Brown and the 1992 revisions, this Court

upheld appealability in two appeals from orders denying attorneys’ petitions

to withdraw based on nonpayment. See Commonwealth v. Scheps, 523

A.2d 363 (Pa. Super.) (plurality opinion7), appeal denied, 533 A.2d 91 (Pa.

1987); Commonwealth v. Sweeney, 533 A.2d 473, 474 n.1 (Pa. Super.

1987) (relying on Scheps and lack of challenge to appealability, and

considering order denying attorney’s petition to withdraw to be a final


____________________________________________
6
  The Court adopted the collateral order doctrine in Bell v. Beneficial
Consumer Discount Co., 348 A.2d 734, 735 (Pa. 1975), and Pugar v.
Greco, 394 A.2d 542, 545 (Pa. 1978). The Court promulgated Rule 313, “a
codification of existing case law with respect to collateral orders,” in 1992.
Pa.R.A.P. 313 Note.

7
 Although there was no majority opinion in Scheps, all members of the
panel agreed that the appeal was properly before the court. See Scheps,
523 A.2d at 371 (Olszewski, J., dissenting) (noting that appeal was properly
before the court as a final order under Brown). As a plurality opinion,
Scheps is not binding precedent in this Court. See MacPherson v. Magee
Mem'l Hosp. for Convalescence, 128 A.3d 1209, 1223 (Pa. Super. 2015),
appeal denied, 161 A.3d 789 (Pa. 2016).

                                           -9-
J-S34030-17


determination).    We have not returned to the issue since adoption of the

collateral order rule, however.

      In Commonwealth v. Wells, 719 A.2d 729, 730 (Pa. 1998), the

Supreme Court of Pennsylvania held that an order denying a request to

withdraw as counsel based on an alleged conflict of interest was not

appealable under Appellate Rule 313.        The attorney filed a petition to

withdraw, and the client (a criminal defendant who claimed that the attorney

had a conflict of interest) appealed the denial of that petition.   Id.   The

Court held that the order did not satisfy the third requirement of the

collateral order rule:

      Appellant’s claim that he is entitled to “conflict-free” PCRA
      counsel will not be irreparably lost if the order denying the
      Petition to Withdraw is not reviewed at this time.         Since
      Appellant has a right of appeal if the PCRA court denies his
      petition, the order denying the Petition to Withdraw, and
      consequently the merits of the conflict issue, can be reviewed if
      or when Appellant files an appeal from the court’s PCRA decision.

Id. at 731.    Notably, the appeal in Wells was filed by the client (whose

appellate rights would remain once a final judgment was entered), and not

by the lawyer seeking to withdraw. In that connection, we have explained

that “[t]he collateral order inquiry is necessarily dependent upon the party

raising its application, as the questions asked relate directly to the party

seeking an appeal.” Commonwealth v. Montgomery, 799 A.2d 149, 154

n.6 (Pa. Super. 2002).     Thus, “appealability at times depends upon the

status of the party seeking relief and its opportunity for redress of an

allegedly erroneous order.” Id.

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J-S34030-17


       In Commonwealth v. Reading Group Two Properties, Inc., 922

A.2d 1029 (Pa. Cmwlth. 2007), the Commonwealth Court held that the

denial of an attorney’s petition to withdraw, based on his client’s failure to

pay fees, was a collateral order under Appellate Rule 313. Id. at 1033. The

court distinguished Wells:

       Unlike Wells[,] where a new hearing could be granted along
       with new counsel, the present controversy involves a matter
       where the rights of counsel would be lost if the matter proceeded
       any further.

       Once a final judgment is reached in the underlying action, the
       right of counsel to withdraw will become moot.

Id.

       This   case    is   similar   to   Reading   Group,    and   although   the

Commonwealth Court’s decision is not precedential in this Court,8 we reach

the same result here.         Schindler sought to withdraw based on Magee’s

inability to pay for its work during a trial.       The order denying Schindler’s

motion to withdraw presents issues “separable from and collateral to the

main cause of action” because they are “entirely distinct from the underlying

issue” in Magee’s case and “can be resolved without an analysis of the

merits of the underlying” criminal matter.          See K.C., 128 A.3d at 778.

Moreover, an order requiring an attorney to represent a client without

compensation involves important rights — for the client, the right to counsel,

and for the attorney, the right to earn a livelihood. See Reading Group,
____________________________________________
8
 See, e.g., Petow v. Warehime, 996 A.2d 1083, 1089 n.1 (Pa. Super.),
appeal denied, 12 A.3d 371 (Pa. 2010).


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J-S34030-17


922 A.2d at 1033 (implicitly finding that second collateral order requirement

had been met). Finally, the rights of Schindler will be lost if it cannot appeal

immediately; once a trial has taken place, Schindler’s motion to withdraw

will have become moot.           See Brown, 255 A.2d at 555 n.1; Reading

Group, 922 A.2d at 1033.

       For the foregoing reasons, we agree with the parties that the order

appealed from is an appealable collateral order.          We therefore have

jurisdiction over this appeal.9




____________________________________________
9
  We are aware that this result does not come without costs. Under
Appellate Rule 1701, a trial court normally loses jurisdiction once an appeal
is filed. Although Rule 1701(c) permits the trial court to continue to act on
those parts of a case that are separate from the issue on which a collateral-
order appeal is taken, an order regarding who may be counsel in a case is
not likely to be so unrelated to the remaining parts of the case as to permit
the rest of the trial court proceedings to move forward. See generally
Commonwealth v. McClure, 172 A.3d 668, 698-99 (Pa. Super. 2017);
Commonwealth v. Hall, 476 A.2d 7, 10 (Pa. Super. 1984). Permitting an
immediate appeal from an order denying criminal defense counsel’s request
for withdrawal therefore risks stopping a criminal proceeding in its tracks —
as apparently has occurred here — and bestowing on defendants a powerful
tool for delay. But we have no cause to assume that counsel will make
withdrawal motions in bad faith, and we trust that in those cases where
questions along such lines arise, the trial court will inform us of relevant
concerns. The rules always permit a party to seek appellate expedition or
other appropriate relief.

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J-S34030-17


                           Petition to Withdraw

      Turning to the merits of this appeal, we review a trial court’s denial of

counsel’s petition to withdraw under the abuse of discretion standard. C.E.

Williams Co. v. Henry B. Pancoast Co., 194 A.2d 189, 191 (Pa. 1963);

Sweeney, 533 A.2d at 474.

      Schindler contends that the trial court’s denial of its motion to

withdraw was an abuse of discretion or an error of law because (1) Magee

did not oppose the motion and “had three other attorneys lined up for

possible representation at trial”; (2) its engagement by Magee was limited to

pretrial matters and specifically excluded trial and post-trial representation;

(3) Magee had failed to fulfill his financial obligations under the letter

agreement and told Schindler that he would not be able to fulfill them going

forward; and (4) Schindler “continually notified Magee of his failure to meet

[his] financial obligations and of Counsel’s intent to withdraw if the case

went to trial without Magee retaining and paying Counsel for trial services.”

Schindler’s Brief at 23-24. Schindler also argues that its withdrawal would

result in only “a slight delay in the matter being called to trial” and would

not cause prejudice to Magee. Id. at 24.

      The Commonwealth argues that the trial court acted within its

discretion in denying the petition to withdraw and emphasizes that (1)

Schindler made no attempt to withdraw until two weeks before trial, even

though a notice of attachment for a four-day trial was sent two months

earlier; (2) Schindler sought and was granted numerous continuances to

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J-S34030-17


allow more time to prepare a defense and review documents; and (3) the

Commonwealth      had   already   subpoenaed      numerous   witnesses      when

Schindler filed its petition to withdraw.      The Commonwealth asserts that

“[h]aving to wait for [Magee] to find new counsel, and for that counsel to

prepare for trial, would significantly burden the Commonwealth, and unduly

delay trial[, e]specially in light of counsel’s indication of the amount of

preparation and discovery required.”     Commonwealth’s Brief at 14.         The

Commonwealth also contends that the hearing transcript demonstrates that

Mr. Pavloff “was not clear about what type, if any, [of] notice he provided to

his client about his withdrawal.” Id. at 16.

      The trial court denied Schindler’s motion based on its finding that

Schindler did not act “to minimize the inconvenience to the client due to [its]

withdrawal.”   Trial Ct. Op. at 5 (quoting Commonwealth v. Roman,

Appeal of Zaiser, 549 A.2d 1320, 1332 (Pa. Super. 1988)).                Rather,

Schindler “created [its] own emergency.” Id. The court elaborated:

      While the court feels very strongly that lawyers are entitled to be
      compensated for their work, in this case, [Schindler] waited until
      the last minute to make the court aware of [its] issues with [its]
      client. Given that [Magee] has made payments to [Schindler],
      there is no reason to believe [Magee] will not pay [Schindler] in
      the future after [Magee] goes back to work. [Schindler] failed to
      take steps to avoid the foreseeable prejudice of delaying trial,
      and delaying the ability of [its] client to employ other counsel
      prior to the jury trial date of October 31, 2016. There was
      sufficient time for [Schindler] to take the necessary steps when
      notice of counsel’s attachment for trial was given on August 17,
      2016, a date agreed to after extensive discussion between the
      parties and the court, over the course of months, as to the need
      for a special listing of this four day trial because of the number
      of witnesses involved and the complexity of the case.

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J-S34030-17



Id. at 5-6.

       The Rules of Criminal Procedure provide that an attorney for a

defendant may not withdraw without leave of court.                 Pa.R.Crim.P.

120(B)(1).10 A comment to the rule explains:

       The court must make a determination of the status of a case
       before permitting counsel to withdraw. Although there are many
       factors considered by the court in determining whether there is
       good cause to permit the withdrawal of counsel, when granting
       leave, the court should determine whether new counsel will be
       stepping in or the defendant is proceeding without counsel, and
       that the change in attorneys will not delay the proceedings or
       prejudice the defendant, particularly concerning time limits. In
       addition, case law suggests other factors the court should
       consider, such as whether (1) the defendant has failed to meet
       his or her financial obligations to pay for the attorney’s services
       and (2) there is a written contractual agreement between
       counsel and the defendant terminating representation at a
       specified stage in the proceedings such as sentencing. . . .

Pa.R.Crim.P. 120, Cmt. This Court has said:

       No brightline rules exist to determine whether a trial court has
       abused its discretion in denying a Petition to Withdraw as
       counsel. A balancing test must be utilized to weigh the interests
       of the client in a fair adjudication and the Commonwealth in the
       efficient administration of justice. Thus, a resolution of the
       problem turns upon a case by case analysis with particular
       attention to the reasons given by the trial court at the time the
       request for withdrawal is denied.

Sweeney, 533 A.2d at 481 (footnote omitted). The balancing test includes

consideration of “the interests of the attorney seeking withdrawal, i.e.,
____________________________________________
10
  Rule 120(A)(4) states, “An attorney who has been retained or appointed
by the court shall continue such representation through direct appeal or until
granted leave to withdraw by the court pursuant to paragraph (B).” Rule
120(B)(1) then states, “Counsel for a defendant may not withdraw his or her
appearance except by leave of court.”

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J-S34030-17


factors including, but not limited to, the amount of time, money and energy

already expended on the case and whether counsel’s withdrawal would

prejudice the client so as to amount to a ‘desertion’ of the latter’s cause.”

Id. at 481 n.10.

       In several cases, we have reversed the denial of an attorney’s motion

to withdraw based on nonpayment of fees.          For example, in Scheps,

although there was no majority opinion explaining the court’s rationale, two

of the three judges on the panel agreed that the trial court erred in denying

an attorney’s motion to withdraw. See Scheps, 523 A.2d at 370 (Cercone,

J.), 371 (Wieand, J., concurring and dissenting).   The attorney in Scheps

sought to withdraw after “it became apparent that Mr. Scheps would be

unable to pay [the lawyer] 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 last 2-3 months . . . .” Id. at 365 (Cercone, J.).

The lawyer notified Scheps of his intention to withdraw one month before

filing his petition. Id. At the time of the withdrawal hearing, the case was

not ready for trial. Id. at 370. At the hearing, Scheps said he did not wish

to continue with his attorney because he could not “in good conscience” ask

his lawyer to continue to represent him when he could not pay. Id. at 369,

372.

       In the lead opinion in Scheps, Judge Cercone concluded that the

attorney’s withdrawal was mandatory under the Disciplinary Rules because

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J-S34030-17


Scheps had discharged him, and the trial court had no discretion to deny the

motion.     Scheps, 523 A.2d at 366-67. 11         Judge Cercone also stated,

“Permitting counsel’s withdrawal when he has good grounds to do so

together with his client’s permission to do so and in the absence of any real

prejudice to the client or to the Commonwealth is entirely justifiable.” Id. at

368.   Judge Cercone noted that the lawyer in Scheps had not previously

delayed the judicial process or filed the petition to withdraw in bad faith. Id.

at 370.     In a concurring and dissenting opinion, Judge Wieand said he

disagreed with Judge Cercone’s conclusion that the trial court lacked

discretion to deny the petition, but would have held that, under the peculiar

circumstances of the case, the trial court abused its discretion. Id. at 371

(Wieand, J., concurring and dissenting).

       In Sweeney, this Court held that the trial court abused its discretion

in denying an attorney’s petition to withdraw.          See 533 A.2d at 474.

Sweeney hired the attorney only for the pretrial and trial stages of his case,

and could not afford to pay the attorney to represent him on appeal.           Id.

The attorney helped Sweeney file a notice of appeal, and then filed a motion

to withdraw. Id. at 475. The trial court denied that motion based on: its
____________________________________________
11
    Judge Cercone relied on Rule 2-110 of the Pennsylvania Code of
Professional Responsibility. The Code of Professional Responsibility has been
replaced by the Rules of Professional Conduct, which also contain a provision
requiring that a lawyer withdraw when discharged by a client. See Pa. R.
Prof’l Conduct 1.16(a)(3). The Rules also state that a lawyer may withdraw
if “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[.]” Id. 1.16(b)(5).

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belief that Sweeney needed an “expert criminal lawyer” for his appeal; its

concern about the delay involved if a new attorney were appointed; its

reluctance to provide county funds for Sweeney’s representation; and its

belief that by entering a general appearance, Sweeney’s lawyer had

committed to representing Sweeney through the appellate stage.          Id. at

476-77.     This Court held that those reasons did not support the court’s

decision:

      We agree that desertion of a client is abhorrent to the spirit of
      the legal profession. It may also form the basis of a later
      collateral claim of ineffectiveness. We also consider the trial
      court’s regard for the post-sentence rights of appellant laudable.
      Unfortunately, however, in the midst of its concern for
      Sweeney’s right to competent appellate counsel, the cost of
      transcripts and records to the taxpayers of Crawford County and
      the length of time elapsing before any new counsel could
      familiarize himself with the case, the trial court . . . overlooked
      the one crucial factor which goes to the heart of the instant
      appeal and upon which appellant premised his plea to withdraw
      from further representation. That is, the trial court failed to
      consider the economics of appellant’s continued representation.

      The trial court insisted that appellant continue to represent
      Sweeney     on   appeal    without   appointment      or  further
      compensation. The trial court’s predicate for this flows from its
      belief that because “Mr. Ambrose [appellant herein] received a
      substantial fee . . . the interests of justice require that Mr.
      Ambrose continue through the appellate stage.” This conclusion,
      however, finds no support in the record.

Id. at 477 (citation omitted).

      We also held that the trial court abused its discretion in denying an

attorney’s petition to withdraw in Roman, 549 A.2d at 1321. The client in

Roman owed over $12,000 for services rendered, and had entered into a

written fee agreement providing that if he failed to pay his lawyer’s fees, his

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lawyer could withdraw. Id. at 1322. Relying on Scheps and Sweeney, we

held that the client’s violation of the fee agreement was a sufficient reason

for the lawyer to withdraw. Id. We added, “[i]t also would be reasonable to

hold that the client knowingly and freely assented to the termination of [his

attorney’s] employment,” based on the language of the fee agreement and

the lawyer’s assertion, in his petition to withdraw, that the client consented.

Id. Finally, we noted that the lawyer “minimized any prejudice which might

occur to the client.”         Id.    The lawyer had provided “competent and

conscientious” representation, without compensation, and waited until he

filed an appeal before seeking to withdraw. Id. at 1323. The lawyer also

informed his client of his intention to withdraw more than one month prior to

filing the petition. Id.

        By contrast, in Commonwealth v. Ford, 715 A.2d 1141 (Pa. Super.

1998), this Court held that a trial court abused its discretion by granting an

attorney’s motion to withdraw. Id. at 1145. In Ford, the attorney’s motion

was based on his client’s lack of cooperation and failure to pay him in full.

Id. However, it appeared that the client was not served with the motion,12

and the motion was filed just three days before trial.       Id.     After the trial

court granted the motion, the client was tried in absentia and without

counsel, and was convicted. Id. at 1143. The client appealed, and we held

that the trial court abused its discretion in granting the attorney’s motion to


____________________________________________
12
     The client was a fugitive when the attorney filed his motion.

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J-S34030-17


withdraw. Id. at 1145. We stressed the importance of mitigating prejudice

and said, “the interests of the attorney are but one factor, and in the instant

case it is simply not enough to justify withdrawal.” Id. at 1145-46.

      After careful consideration, we conclude that the trial court did not

abuse its discretion in denying Schindler’s motion to withdraw after weighing

the interests of all parties.   Like the trial court, we are sympathetic to

Schindler’s financial concerns; however, “the interests of the attorney are

but one factor” to consider in assessing a motion to withdraw. See Ford,

715 A.2d at 1145-46. Criminal Rule 120(B) makes clear that a trial court

has discretion to deny a request by counsel for withdrawal, and there is no

strict rule that counsel must always be permitted to withdraw in cases where

counsel has not been paid. The trial court was free in this case to conclude

that other factors outweighed the financial burden on counsel when it denied

Schindler’s motion.

      We agree with the trial court that this case is distinguishable from

Scheps, Sweeney, and Roman because Schindler did not take steps to

minimize the prejudice to Magee. See Trial Ct. Op. at 5. Although Magee

said he did not oppose Schindler’s motion, he was placed in the position of

searching for new counsel just a week before Schindler’s motion was heard.

At the time of the hearing, just two weeks before the scheduled start of trial,




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Magee had not retained replacement counsel and was unable to state how

he planned to pay for new counsel.13

       Moreover, it was appropriate for the trial court to consider the

interests of the Commonwealth in the “efficient administration of justice.”

Sweeney, 533 A.2d at 481.                 Before moving to withdraw, Schindler

requested and received seven continuances, based on its representations

that “more time was needed for review of [Magee’s] documents in

preparation for trial.”      Trial Ct. Op. at 2.   Schindler emphasized that it

needed that time because the documents were voluminous.                 If this

voluminous record justified so much delay by Schindler for trial preparation,

it was reasonable for the trial court to assume that any replacement counsel

also would require significant time to get up to speed.       Cf. Scheps, 523

A.2d at 370 (Cercone, J., noting that the attorney had not previously

delayed the judicial process).


____________________________________________
13
   In its Statement of Questions Presented, Schindler suggests that the trial
court made “erroneous conclusions and inferences drawn from ‘omissions’ in
the factual record and its own conclusion, unsupported by the testimony
presented, that [Magee] was not given ‘reasonable warning’ about Counsel’s
intention to withdraw prior to the commencement of trial[.]” Schindler’s
Brief at 10-11. As we previously stated, we are limited to considering only
the evidence presented to the trial court; we may not consider additional
assertions that appear only in Schindler’s brief regarding discussions with
Magee. See Wrecks, 931 A.2d at 722. It is the appellant’s responsibility to
ensure that the certified record contains the facts needed for review. Id.
Based on the facts before it, including Pavloff’s representation that, as of the
hearing on his motion to withdraw, he did not know Magee’s position on the
motion, we conclude that the trial court made the reasonable inference that
counsel had not given Magee sufficient notice of its intent to withdraw just
two weeks before the trial was scheduled to begin.

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J-S34030-17


         Here, unlike in Roman, Sweeney, and Scheps, Schindler “failed to

take steps to avoid the foreseeable prejudice of delaying the trial.” Rather,

Schindler waited until just two weeks before the scheduled start of trial — at

a time when the Commonwealth was ready to proceed as scheduled — to

notify    the   court   and   the   Commonwealth    of   its   concerns   regarding

nonpayment. Trial Ct. Op. at 5.        In the cases in which we have held that

withdrawal should have been permitted, the trial court was not placed in

such a last-minute situation.        See Roman, 549 A.2d at 1323 (counsel

provided representation through trial, without compensation, before seeking

to withdraw); Sweeney, 533 A.2d at 474 (counsel moved to withdraw after

trial and after assisting client with notice of appeal); Scheps, 523 A.2d at

370 (case was not ready for trial when attorney filed his petition to

withdraw).

         On these facts, the trial court was not required to deny Schindler’s

request to withdraw, but it also was not required to grant it.              Having

discerned no abuse of the trial court’s discretion, we affirm the trial court’s

order denying the motion to withdraw.

         Order affirmed.

         Judge Bowes joins the opinion.

         Judge Platt files a concurring and dissenting opinion.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/27/2017




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