Saturday, August 21, 2010

Case o' The Week: Ninth Deals with Retainer Problems, Rivera-Corona and Firing Retained Counsel

What is the standard for relieving retained counsel and getting a public defender appointed? Surprisingly, the Ninth didn't have a test for this situation (though concurring Judge Fisher would beg to differ). Never one to shrink from a challenge, Judge Berzon creates the rule for the Ninth in an interesting new case that will be important for indigent defense. United States v. Rivera-Corona,__ F.3d __, No. 08-30286 (9th Cir. Aug. 18, 2010), decision available here.

Decision by Judge Berzon joined by Judge Tashima, concurrence by Judge Fisher.

Facts: With retained counsel, Rivera-Corona pleaded guilty to a § 924(c). Slip Op. at 12151. At the plea colloquy the judge did not advise the defendant of his “‘right to be represented by counsel – and if necessary have the court appoint counsel – at trial and at every other stage of the proceeding,’ as required by . . Rule 11(b)(1)(D).” Id.

After he pleaded guilty, Rivera-Corona moved to relieve his counsel and withdraw his plea. Id. at 12152. During a hearing, Rivera-Corona explained that the lawyer had demanded more money to go to a jury trial, and had threatened to “prosecute” his family. Id. The retained attorney confirmed that the retainer had been exhausted long before the plea. Id. The district court denied Rivera-Corona’s requests and imposed a sentence. Id.

At no point did the court explain that the defendant had the right to court-appointed counsel if he qualified financially. Id. at 12153. Instead, the court held that while Rivera-Corona could hire a new lawyer, he did not have the right to the expense of court-appointed counsel, because the only remaining stage in the case was sentencing. Id. at 12153.

Issue(s): “This case requires us to clarify the standard for considering a criminal defendant’s motion to discharge his privately retained counsel and to proceed with a different, court appointed lawyer instead.” Id. at 12151.

Held: “Remarkably, we have no presently binding case law dictating the standards applicable in the situation in which a district court considers a defendant’s motion to discharge his retained counsel and be represented by a court-appointed attorney.” Id. at 12155. “[T]he district court erred in summarily rejecting Rivera-Corona’s request for appointed counsel to replace retained counsel simply because of the expense and the stage of the proceedings.”
Id. at 12158. Reviewing a district court’s determination of financial eligibility for mid-case appointment under § 3006A(c) . . . requires a three-fold determination.

First, did the district court conduct an ‘appropriate inquiry’ into the defendant’s financial eligibility?

Second, if the district court conducted an appropriate inquiry, was the court correct in its ultimate conclusion of financial eligibility?

Third, if the district court conducted an appropriate inquiry and defendant is financially eligible for mid-case appointment, did the district court err in its weighing of the interests of

Id. at 12159 (citations and internal quotations omitted).

Of Note: For most cases, Judge Berzon’s new rule is fair for the defendant and best for the system. As she correctly observes, “[An] unpaid lawyer is likely, consciously or subconsciously, to resent the transformation of an agreement to represent a defendant for pay into an involuntary pro bono arrangement, and therefore to seek to end the representation as expeditiously as possible.” Id.

The problem is in the small minority of cases where private counsel takes an unrealistically low retainer from a poor family and then abandons the client mid-stream. The Federal PD then typically inherits a thoroughly disgruntled client, a case file with a pristine and untouched discovery package, and a district judge grumbling about a looming Speedy Trial date. P.D.s aren’t snitches and don’t like wading into Bar referrals or fee disputes; it’ll be interesting if Rivera-Corona aggravates this occasional dilemma for indigent defense.

How to Use: Judge Berzon gives an interesting passage on appellate waivers: “Rivera-Corona’s guilty plea included a waiver of his right to appeal, but his contention that his plea was involuntary raises the possibility that the appeal waiver was involuntary and so not enforceable.” Id. at 12154 n.1. Here, the issue wasn’t pressed by the government so
the Court did not have to explain what is an “involuntary” plea. An intriguing appellate avenue for a future case.

For Further Reading: What do absurd sentences and mand-minds produce? A docket full of attorney-client disputes. A fine example is United States v. Farias, 09-50269 (9th Cir. Aug. 20, 2010), decision available here, yet another case this week involving a disgruntled client. In Farias, Judge Paez finds the defendant made a timely Faretta demand - the day before a jury trial! Slip op. at 12940.

Image of a retainer from

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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Blogger Ezekiel E. Cortez said...

The link for the slip opinion leads to Judge Larry Burns' case - not Rivera's.

Monday, August 23, 2010 5:48:00 PM  

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