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United States v. Fisher

United States District Court, W.D. New York

November 2, 2017

UNITED STATES OF AMERICA,
v.
GEORGINA FISHER, Defendant.

          DECISION AND ORDER

          HON. RICHARD J. ARCARA, UNITED STATES DISTRICT JUDGE

         Randall P. Andreozzi, Tiffany D. Bell, and Justin J. Andreozzi have moved to withdraw as counsel for the Defendant, Georgina Fisher. See Docket No. 195. The Court assumes familiarity with this case's procedural history, as well as the reasons for counsel's motion.[1] In brief, counsel move to withdraw because Fisher has incurred a $ ((XXXXX)) I legal debt that she has "no ability to pay, " and because she is likewise unable to "pay for her counsel of choice for her defense at a trial scheduled to commence on December 12, 2017." Docket No. 195 at ¶ 18.[2]

         On October 11, 2017, the Court directed Fisher and counsel to submit a number of documents to help the Court resolve counsel's motion. See Docket No. 196. In response, counsel have filed, among other things, a billing summary and an affidavit from Fisher. In her affidavit, Fisher states that she "must. . . ask this Court to force [current counsel] to defend [Fisher] without any real prospect of being paid from [Fisher] for their continued work.” Docket No. 292-2 at 3. See also Id. (“I do not wish to continue to financially hurt the legal firm that has so passionately defended me thus far, but I must take the position to object.”) The Court has considered these additional documents, as well as the entire record in this case, in deciding counsel's motion.

         The Court must first decide whether to grant counsel's motion to withdraw. Because the Court will deny that motion, the Court then decides whether Fisher is eligible for assigned counsel and, if she is, whether to appoint current counsel to represent Fisher under the Criminal Justice Act.

         1. Whether to grant counsel's motion to withdraw

         Counsel's motion to withdraw is based on Fisher's inability to pay the legal debt she has incurred over the past two-and-a-half years, and that she will continue to incur as this case proceeds to trial over the next six weeks.[3] As the Court noted in its October 11, 2017 Order, the New York Rules of Professional Conduct allow an attorney to withdraw because of his client's non-payment of fees only when his client “deliberately disregards an agreement or obligation to the lawyer as to the expenses or fees.” N.Y. Rule Prof. Conduct 1.16(c)(5) (emphasis added).

         Rule 1.16(c)(5)'s text makes clear that “[n]on-payment of legal fees, without more, is not usually a sufficient basis to permit an attorney to withdraw from representation.” United States v. Parker, 439 F.3d 81, 104 (2d Cir. 2006) (quotation marks and citations omitted). See also Id. (noting that “the exhaustion of a retainer is not evidence of a deliberate violation”). Of course, “lawyers are not compelled to provide free legal services to all clients.” N.Y.S. Bar Ass'n Ethics Opinion No. 1061 ¶ 15 (2015) (citation omitted). But “mere nonpayment or late payment is not enough” to withdraw from a representation. Id. Rather, “[t]he client's failure must be conscious rather than inadvertent, and must not be de minimis in either amount or duration. Conversely, a lawyer may withdraw from representing a client who deliberately disregards an obligation to pay a lawyer more than a de minimis amount for more than a de minimis length of time.” Id. (emphasis added).

         The record in this case shows that Fisher has not “deliberately disregard[ed]” an obligation to pay her legal fees. To the contrary, Fisher's CJA financial affidavit states that “ ((XXXXX)).” Docket No. 209-3 at 3. Likewise, counsel and Fisher have entered into a consent judgment on Fisher's home, which is valued at $247, 000. Docket No. 209-2 at 2. These facts show that Fisher and counsel have attempted to work out an arrangement under which Fisher can, in some manner, pay her legal debt. To be sure, the amount Fisher owes counsel is not de minimis, nor does it appear that Fisher has been delinquent for a de minimis period of time: Fisher owes counsel $ (XXXXX), and she has not made a payment towards her legal debt since (XXXXX). See Docket No. 209-5 at 3. Given the large debt Fisher owes, counsel concludes that Fisher “will quite obviously never be able to repay” the fee counsel has billed her. Docket No. 209-1 ¶ 32. But the fact that counsel has arranged a payment plan with Fisher (however long-term) shows that counsel also recognizes that Fisher has not deliberately ignored her obligation to pay counsel. There is, therefore, no evidence that Fisher has deliberately disregarded her obligation to pay her legal fees.

         Counsel's motion to withdraw is also denied because the Court is not confident that “withdrawal can be accomplished without material adverse effect on the interests of the [Defendant].” N.Y. Rule Prof. Conduct 1.16(c)(1). Counsel tacitly concedes this point. See Docket No. 209-1 ¶ 19 (“It may well be that in cases involving a lawyer seeking to withdraw from a matter for lack of funds, the lawyer may try to assure the Court that his or her withdrawal will not have a ‘material adverse effect on the interests of the Defendant.' But I cannot make such an assertion here.”)

         This concession is well made. Counsel has represented Fisher for over five years. It is, then, no surprise, that Fisher states that she has “built a deep, well informed, and trusting relationship with [her] legal team.” Docket No. 209-2 at 3. Moreover, while this is not a complex structuring case, lead counsel's background makes him among the region's most qualified attorneys to litigate a case involving the IRS. Current counsel is likewise intimately familiar with the tangled procedural history that will likely be at the center of an appeal from any conviction.[4]

         If the Court were to relieve counsel, new counsel would, of course, be given time to familiarize himself or herself with this case. But to adjourn trial would only further delay a case that is approaching three years old. And there is no apparent reason why, if public funds are to be expended to help Fisher fund counsel (which they will), the Court should appoint an attorney who would need to spend a significant period of time gaining the intimate familiarity with this case that current counsel already has. For these reasons, counsel's motion to withdraw is denied.

         2. Whether Fisher is eligible for CJA counsel

         Having denied counsel's motion to withdraw, the Court must now decide whether to appoint counsel to represent Fisher under the Criminal Justice Act, 18 U.S.C. § 3006A. Fisher has filed a completed CJA Form 23 Financial Affidavit, which shows that her monthly salary is $ (XXXXX). Fisher's home is valued at $247, 000, although she represents that she is unable to obtain a mortgage on her home. Docket No. 209-2 at 3. Fisher also states that her monthly expenses total $ (XXXXX).

         To qualify for assigned counsel, “the burden is on the defendant to show that [s]he is unable to afford representation, though [s]he need not prove that [s]he is indigent.” United States v. O'Neil, 118 F.3d 65, 74 (2d Cir. 1997). The CJA Guidelines provide that “[a] person is ‘financially unable to obtain counsel' . . . if the person's net financial resources and income are insufficient to obtain qualified counsel.” CJA Guideline § 210.40.30(a) (quoting 18 U.S.C. § 3006A(b)). To make this determination, a court should consider “the cost of providing the person and [her] dependents with the necessities of life, ” id. § 210.40.30(a)(1), but a court should not consider “the financial ability of the person's family unless the family indicates willingness and financial ability to retain counsel promptly.”[5]Id. § 210.40.50. CJA eligibility is not binary: “If a person's net financial resources and income anticipated prior to trial are in excess of the amount needed to provide the person and that person's dependents with the necessities of life and to provide the defendant's release on bond, but are insufficient to pay fully for retained counsel, the [court] should find the person eligible for the appointment of counsel under the CJA and should direct the person to pay the available excess ...


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