People v. Deatley, Supreme Court Case No. 13SA97

• Decision Date: 07 July 2014
• Docket Number: Supreme Court Case No. 13SA97
• Citation: 333 P.3d 61
• Parties: In Re: The PEOPLE of the State of Colorado, Plaintiff v. Alan DEATLEY, Defendant
• Court: Colorado Supreme Court

333 P.3d 61

In Re: The PEOPLE of the State of Colorado, Plaintiff

v.Alan DEATLEY, Defendant

Supreme Court Case No. 13SA97

Supreme Court of Colorado.

June 16, 2014

Rehearing Denied July 7, 2014

Original Proceeding Pursuant to C.A.R. 21, District Court, City and County of Denver, Case No. 10CR10309, Honorable John W. Madden, IV, Judge

Attorneys for Plaintiff: Robert J. Whitley, Chief Appellate Deputy District Attorney Mitchell R. Morrissey, District Attorney Denver, Colorado

Attorneys for Defendant: Portman Stuart, LLC Martin Stuart Jolie Masterson Denver, Colorado

En Banc

JUSTICE HOBBS delivered the Opinion of the Court.

¶ 1 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.

¶ 2 In October 2010, the prosecution charged Alan DeAtley, a Washington State 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.

¶ 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. SeePeople v. Arguello, 772 P.2d 87, 92–94 (Colo.1989).

¶ 4 Accordingly, we reverse the trial court's denial of the motion to withdraw and make our rule absolute.

I.

¶ 5 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.

¶ 6 In August 2011, DeAtley retained defense counsel, who proceeded to represent him. On November 13, 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(3) based on DeAtley's stated intent to discharge them.

¶ 7 On December 3, 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 circumstances.” 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.”

¶ 8 At a hearing on January 31, 2013, 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, 2013. 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.

¶ 9 On February 15, 2013, 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....”

¶ 10 In the subsequent weeks, DeAtley failed to secure new representation. On March 15, 2013, 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:

[U]nless 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.... [T]he 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 found—present defense counsel's request to withdraw is denied.

¶ 11 At the request of defense counsel, we issued a rule to show cause 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), 1.16(3), 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.

II.

¶ 12 After the trial court found that DeAtley 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(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 DeAtley 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...