Metropolitan News-Enterprise


Monday, October 27, 2003


Page 1


Judge May Not Require Formal Motion to Withdraw as Counsel After Preliminary Hearing, C.A. Rules


By DAVID WATSON, Staff Writer


A lawyer who agrees to represent a criminal defendant only at the preliminary hearing stage cannot be required to make a formal motion to withdraw as counsel when the client is arraigned, the Sixth District Court of Appeal ruled Friday.

Santa Clara Superior Court Judge Kevin Murphy erred in requiring attorney Dennis Lempert to make the motion and abused his discretion in denying it, Presiding Justice Conrad L. Rushing said.

Lempert was retained to represent Robert Hoyland Campbell on a rape charge, but their agreement called for the lawyer to handle only the preliminary hearing. Campbell was bound over for trial.

When Lempert sought to appear specially at the arraignment to advise Murphy that a public defender should be assigned to the case, Murphy told the attorney he had already made a general appearance and a motion would be required. Lempert filed a motion, but Murphy denied it after a hearing.

The judge told Lempert that since the unification of the municipal and superior courts there was “no such thing” as a special appearance, and advised the lawyer that Murphy’s practice was to “attempt to discourage” arrangements involving representation only at the preliminary hearing stage by requiring withdrawal motions.

Rushing declared:

“We...conclude that forcing counsel to represent an indigent defendant from arraignment on the information all the way through trial without compensation, when counsel was retained only to represent the defendant at the preliminary examination, amounts to an abuse of discretion.  As a result, we find that the trial court abused its discretion by denying petitioner’s motion to withdraw.”

In fact, no motion should have been required, the presiding justice said.

Court unification, he explained, did not change the “longstanding practice” under which “the attorney who represented the defendant at the preliminary examination was not considered necessarily to have continued the representation in the superior court when defendant was arraigned on the information.”

Instead, Rushing said, the “issue of representation has been treated as beginning anew with the appearance of the defendant in the superior court on the date set for arraignment on the information.”

Rushing said the court also had “serious concerns” about the trial judge’s “expressed desire to discourage financial arrangements between a defendant and his or her counsel of choice” and about Murphy’s “expressed willingness to coerce counsel to represent an indigent defendant without compensation from the very point of arraignment as a means of implementing the court’s expressed policy of discouraging legitimate financial arrangements between a defendant and retained counsel.”

The presiding justice noted that trial judges have “the inherent authority to inquire about the status of counsel,” adding:

“We also acknowledge the concerns expressed... regarding the potential disadvantage to the defendant caused by the withdrawal of retained counsel at the arraignment on the information and the accompanied need to appoint counsel to represent the now-indigent defendant.  However, these concerns are matters that are appropriately considered by the court in exercising its discretion in appointing attorneys to represent indigent defendants.”

Justices Eugene M. Premo and Franklin D. Elia concurred.

The case is Lempert v. Superior Court (Campbell), H025600.


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