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PA Bulletin, Doc. No. 03-311

THE COURTS

Title 234--RULES OF CRIMINAL PROCEDURE

[234 PA. CODE CH. 1]

Attorneys--Appearances and Withdrawals

[33 Pa.B. 967]

   The Criminal Procedural Rules Committee is planning to recommend that the Supreme Court of Pennsylvania amend Pa.R.Crim.P. 120 (Attorneys--Appearance and Withdrawals) to clarify the duration of retained counsel's obligation. This proposal has not been submitted for review by the Supreme Court of Pennsylvania.

   The following explanatory Report highlights the Committee's considerations in formulating this proposal. Please note that the Committee's Report should not be confused with the official Committee Comments to the rules. Also note that the Supreme Court does not adopt the Committee's Comments or the contents of the explanatory Reports.

   The text of the proposed rule changes precedes the Report. Additions are shown in bold; deletions are in bold and brackets.

   We request that interested persons submit suggestions, comments, or objections concerning this proposal in writing to the Committee through counsel,

      Anne T. Panfil, Chief Staff Counsel
Supreme Court of Pennsylvania
Criminal Procedural Rules Committee
5035 Ritter Road, Suite 800
Mechanicsburg, PA 17055
fax: (717) 795-2106
e-mail:  criminal.rules@supreme.court.state.pa.us

no later than Friday, March 28, 2003.

By the Criminal Procedural Rules Committee:

JOHN J. DRISCOLL,   
Chair

Annex A

TITLE 234.  RULES OF CRIMINAL PROCEDURE

CHAPTER 1.  SCOPE OF RULES, CONSTRUCTION AND DEFINITIONS, LOCAL RULES

PART B.  Counsel

Rule 120.  Attorneys--Appearances and Withdrawals.

   (A)  Counsel for defendant shall [enter an appearance in writing] file an entry of appearance with the clerk of courts promptly after being retained or appointed, and serve a copy [thereof] of the entry of appearance on the attorney for the Commonwealth.

   (1)  If a firm name is entered, the name of an individual lawyer shall be designated as being responsible for the conduct of the case.

   (2)  The entry of appearance shall include the attorney's address, phone number, and attorney ID number.

   (B)  Counsel shall not be permitted to represent a defendant following a preliminary hearing unless an entry of appearance is [entered] filed with the clerk of courts.

   (C)  An attorney who has been retained or appointed by the court shall continue such representation through direct appeal or until relieved by the court.

   (D)  Counsel for a defendant may not withdraw his or her appearance except by leave of court. Such leave shall be granted only upon motion made and served on the attorney for the Commonwealth and the client, unless the interests of justice otherwise require.

Comment

*      *      *      *      *

   Ordinarily, counsel remains in the case until permitted to withdraw or final judgment, which includes all avenues of appeal through the Supreme Court of Pennsylvania. In making the decision whether to file a petition for allowance of appeal, counsel must review the standards set forth in Pa.R.A.P. 1114 (Considerations Governing Allowance of Appeal) and the note following that rule. However, this rule does not require counsel to file a petition for allowance of appeal in every case, or, if a petition is filed, for counsel to include every reviewable issue. Concerning counsel's obligations as appointed counsel, see Jones v. Barnes, 463 U.S. 745 (1983). See also Commonwealth v. Padden, 783 A.2d 299 (Pa. Super. 2001).

   Under paragraph [(C)] (D), the court should make a determination of the status of a case before permitting counsel to withdraw. A factor that must be considered by the court in determining whether there is good cause to permit the withdrawal of counsel is the defendant's failure to meet his or her financial obligations to pay for the attorney's services. See Commonwealth v. Roman. Appeal of Zaiser, 549 A.2d 1320 (Pa. Super. 1988).

*      *      *      *      *

   Official Note:  Adopted June 30, 1964, effective January 1, 1965; formerly Rule 303, renumbered Rule 302 and amended June 29, 1977 and November 22, 1977, effective as to cases in which the indictment or information is filed on or after January 1, 1978; amended March 22, 1993, effective January 1, 1994; renumbered Rule 120 and amended March 1, 2000, effective April 1, 2001; amended           , 2003, effective           , 2003.

Committee Explanatory Reports:

*      *      *      *      *

   Report explaining the proposed amendments clarifying the procedures concerning entry of appearance and duration of counsel's obligation published at 33 Pa.B. 968 (February 22, 2003).

REPORT

Proposed amendments to Rule 120

CLARIFICATION OF DURATION OF COUNSEL'S OBLIGATION

I.  INTRODUCTION

   At the request of the Supreme Court's Common Pleas Court Management System (CPCMS) Project1 staff, during the past year, the Committee has been reviewing the procedures related to the entry and withdrawal of retained and appointed counsels' appearance. The changes being proposed2 are intended to clarify the issue of the duration of retained counsels' obligation, an issue the Committee agreed should be addressed in the rules because it continues to arise in the case law.3

II.  DISCUSSION

   A.  Duration of Obligation

   The issue of counsel's obligation has two parts--the length of time the attorney is obligated to stay in a case and the nature of the obligation. New paragraph (C) addresses the first part, the duration of representation under Rule 120, and requires that both appointed and retained counsel must stay in the case through direct appeal or until relieved by the court. As explained in the Comment, the courts have determined that ''direct appeal'' includes ''all avenues of appeal through the Supreme Court of Pennsylvania.'' See, e.g., Commonwealth v. Daniels, 420 A.2d 1323 (Pa. 1980) (a person seeking allowance of appeal is entitled to the assistance of counsel). See also Rule 122 (Assignment of Counsel).

   The Comment also incorporates the principles espoused in the case law with regard to the withdrawal of counsel; that the primary consideration of the judge when determining whether to permit a withdrawal by counsel is ensuring that the defendant has counsel to proceed with direct appeal, and to proceed in a timely manner. Before permitting an attorney to withdraw from a case, the judge must look to where the case is in the process and whether a new attorney has entered an appearance. Another factor the judge must consider is whether there is good cause, including whether the defendant is able to meet his or her financial obligations to pay for the attorney's services. See, e.g., Commonwealth v. Roman, Appeal of Zaiser, 549 A.2d 1320 (Pa. Super. 1988).

   The second part, the nature of the obligation, is more complicated. Although the scope of Rule 120 does not include the nature of counsel's obligation specifically, several members expressed concern that without some clarification, the rule would be interpreted to require an attorney to file a petition for allowance of appeal in every case, even when the attorney's professional judgment indicates it is inappropriate. The Committee therefore agreed to include in the second paragraph of the Comment an explanation emphasizing that the attorney, when determining whether to file a petition for allowance of appeal, must review Pa.R.A.P. 1114 (Considerations Governing Allowance of Appeal), and would only file a petition if there is a substantial basis for filing and the case meets the standards in the appellate rule. See Jones v. Barnes, 463 U.S. 745 (1983) and Commonwealth v. Padden, 783 A.2d 299 (Pa. Super. 2001).

   B.  Entry of Appearance Requirements

   In addition to addressing the issues concerning the duration of counsel's obligation, the Committee also is proposing some changes to bring Rule 120 in line with the motions rules. Paragraph (A) would be amended by replacing ''enter an appearance in writing'' with ''file an entry of appearance,'' which conforms to the filing terminology in Rule 576 (Filing). In addition, the Committee is proposing that the entry of appearance be required to include the attorney's address, phone number, and attorney ID number so this information is readily available to the clerk of courts who is responsible for including this information in the list of docket entries.

______

1 The CPCMS Project is developing a statewide automated case management system for the common pleas criminal courts.

2 This is the second proposal to be developed as the result of the Committee's review of the rules addressing counsel. The first proposal developed as a result of the Committee's review addressed the entry of appointed counsel's appearance, and was published in the February 23, 2003 Pennsylvania Bulletin, volume 33 at page 1039. These proposed changes are not shown in this current proposal.

3 The Committee has pending with the Court a recommendation for changes to Rules 122 and 904 that clarify the duration of appointed counsels' obligation. The Committee's Report explaining the proposed changes was published in 30 Pa.B. 5533 (October 28, 2000).

[Pa.B. Doc. No. 03-311. Filed for public inspection February 21, 2003, 9:00 a.m.]


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