Excerpts below regarding the Attorney/Client relationship are from Website of Hinshaw & Culbertson LLP (law firm)

“One of the basic concepts of the practice of law is that the client is entitled to be represented by counsel of his or her choice. It follows that a client may terminate his attorney at will, and with or without cause. Herbster v. North American Co., 150 Ill.App.3d 21, 501 N.E.2d 343 (1986). This rule is deeply rooted in the personal nature of the attorney-client relationship and in the need to avoid friction and distrust between the lawyer and client. The client’s right to terminate also includes the right to substitute other counsel. See, e.g., Savich v. Savich, 12 Ill.2d 454, 147 N.E.2d 85 (1957)…

…The right to choose counsel is not without limitation, however, particularly in the field of litigation. The client’s latitude in selecting, discharging or substituting counsel is not “so absolute that its exercise may not be denied where it will unduly prejudice the other party or interfere with the administration of justice.” People v. Franklin, 415 Ill. 514, 516-17, 114 N.E.2d 661, 663 (1953). Thus, once a trial has commenced, substitution or withdrawal may be denied in the absence of some “valid reason.” See, e.g., Marriage of Milovich, 105 Ill.App.3d 596, 434 N.E.2d 881 (1982)…

…interference with the relationship between an attorney and his client may be actionable, even if the relationship is terrainable at will. See, e.g., Herbster; LaRocco, supra…An attorney’s right to withdraw from the attorney-client relationship is somewhat restricted by the lawyer’s special position…an attorney representing a client before a tribunal must obtain permission from the tribunal to withdraw. “

http://www.hinshawlaw.com/breaking-away–avoiding-malpractice-when-the-attorney-client-relationship-ends-05-01-2000/

Below is the first of two main arguments submitted January 20, 2010, by the Illinois State Appellate Defender’s Office in support of Richard Wanke’s appeal of his 2006 burglary conviction and 14 year extended term sentence.

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ARGUMENT I (from the Appellate Brief)

BECAUSE THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING GREG CLARK’S  PRE-TRIAL MOTIONS TO WITHDRAW AS TRIAL COUNSEL, THE DEFENDANT WAS ULTIMATELY DENIED A FAIR TRIAL REQUIRING THAT THE CONVICTION BE REVERSED AND THE MATTER REMANDED FOR A NEW TRIAL.

Standard of review
The standard of review of the decision to allow an attorney to withdraw is abuse of discretion. People v. Franklin, 415 111. 514, 516 (1953); Safety-Kleen Corp. v. Canadian Universal Ins. Co., 258 111. App. 3d 298, 303 (2nd Dist. 1994); In re Rose Ann L., 307 111. App. 3d 907, 912 (1st Dist. 1999); see also In re J.D. and M.G, 332 111. App. 3d 395, 405 (1st Dist. 2002).

On March 14, 2007, Clark filed a motion to withdraw as counsel. In the motion, he claimed a lack of cooperation and communication as the bases for the motion.  At the hearing on the motion, Clark said that while the relationship with the defendant was not hostile, communication had broken down to the point there was none. (R165-166) The defendant denied knowing what Clark was talking about; he said that Clark’s claim that he tried to call the defendant many times was “inaccurate,” and that he had not received a copy of Clark’s motion. When the court asked the defendant about the breakdown in communication, Mr. Wanke replied that it was “hard to say” – the two were cordial and polite, but they did not see eye to eye. (R167-169) Clark reiterated that the basis of the motion was “non-communication.” (R170) The court denied the motion, but noted that Mr. Wanke was on notice to cooperate with counsel and respond to communication – if not, it was at his own peril. (R173)

Later in the same proceeding, the defendant told the court he wanted Clark to re-open the motion to suppress and argue that the photographs in the line-up had been “cherry-picked.” The court told Wanke that Clark conducted a full and fair hearing with the correct witnesses, and it was not for the defendant to second-guess counsel. (R173-174) Clark then asked the court to admonish the defendant that if any defenses were not disclosed to the prosecution, the court would bar them at trial; the court did so and again put Wanke on notice that he needed to cooperate with counsel. (R176)

Under Supreme Court Rule 13, an attorney who has filed an appearance on behalf of an individual may withdraw as counsel unless the court, reviewing a written motion to withdraw, finds the withdrawal will delay the trial or “would otherwise be inequitable.” Supreme Court Rule 13(c)(2) and (3). Under the Illinois Rules of Professional Conduct, there are some circumstances that require an attorney to withdraw as counsel, while the Rules permit withdrawal under other circumstances.

Specifically, Rule 1.16 provides, in pertinent part:
(a)    A lawyer representing a client before a tribunal shall withdraw from employment (with permission of the tribunal if such permission is required), and a lawyer representing a client in other matters shall withdraw from employment, if:
the lawyer knows or reasonably should know that the client is bringing the legal action, conducting the defense, or asserting a position in the litigation, or is otherwise  having steps taken, merely for the purpose of harassing or maliciously injuring any person;
the lawyer knows or reasonably should know that such continued employment will result in violation of these Rules;
the lawyer’s mental or physical condition renders it unreasonably difficult for the lawyer to carry out the employment effectively; or  the lawyer is discharged by the client.
(b)    Except as required in Rule 1.16(a), a lawyer shall not request permission to withdraw in matters pending before a tribunal, and shall not withdraw in
other matters, unless such request or such withdrawal is because:
the client: insists upon presenting a claim or defense that is not warranted under existing law and cannot be supported by a reasonable argument for an extension, modification, or reversal of existing law;
seeks to pursue an illegal course of conduct;
(c) insists that the lawyer pursue a course of conduct that is illegal or that is prohibited by these Rules;
(d) by other conduct renders it unreasonably difficult for the lawyer to carry out the employment effectively;

* * * *
(4) the lawyer reasonably believes that a tribunal will, in a proceeding pending before the tribunal, find the existence of other good cause for withdrawal.

Rules of Professional Conduct, 1.16.

An indigent defendant is constitutionally entitled to competent assistance
of counsel.  U.S. Const., amends. VI, XIV; 111. Const. 1970, art. 1, § 8; Gideon u.
Wainwright, 372 U.S. 335 (1963); see also People v. Lynn, 102 111. 2d 267, 273
(1984). That long-standing and obvious rule being said, there are limits to that
right.   This Court pointed out in a previous appeal by Mr. Wanke that, “A
criminal defendant has no right to choose his appointed counsel or insist on
representation by a particular public defender.” People v. Wanke, 3.03 111. App.3d
772, 782 (2d Dist. 1999); see also People v. DeRossett, 262 111. App.3d 541, 544
(4th Dist. 1994) (“an indigent defendant does not have the right to court-appointed counsel of his choice [citation], nor does a defendant have the right to select a particular assistant public defender to represent him”).

While these cases stand for the proposition that an indigent defendant may not be able to choose his appointed counsel, the counsel appointed to represent such an indigent defendant must still satisfy the Rules of Professional Conduct and seek to withdraw should any of the situations enumerated in Rule 1.16 arise. However, unless counsel and his client are “embroiled in an ‘irreconcilable conflict’ that is ‘so great that it resulted in a total lack of communication preventing an adequate defense,’ there is no abuse of discretion in denying a motion for new counsel.” U.S. v. Morris, 734 F.2d 669, 673 (7th Cir. 1983), citing U.S. v. Mills, 597 F. 2d 693, 700 (9th Cir. 1979), and U.S. v. Calabro, 467 F.2d 973, 986 (2d Cir.1972).

Here, the total lack of communication is precisely what the problem was, as alleged by Clark in his motion to withdraw and in his statements at the proceeding on March 14. Clark admitted there was no hostility between Wanke and him, but there had developed a complete breakdown in communication. (R166, 170)

This was not a situation as in Lucas v. State of South Carolina, 572 S.E.2d 274 (S.C. 2002), where counsel filed a motion to withdraw in the midst of a serious and complex murder trial, alleging his concern that perjured testimony would be presented. That Court found that the attorney did what was required of him under the South Carolina Rules of Professional Conduct, and that the trial court considered appropriate factors in denying the motion to withdraw. Those factors include: a balancing of the need for the orderly administration of justice with the fact that an irreconcilable conflict exists between counsel and the accused; the timing of the motion; the inconvenience to the witnesses; the period of time elapsed between the date of the alleged offense and the trial; and the possibility that any new counsel will be confronted with the same conflict. 572 S.E.2d at 277. Compare also Ellis v. Texas, 99 S.W.3d 783 (Tex. App. 2003) (defendant and counsel disagreed on strategy, defendant’s father threatened future law practice, defendant repeatedly accused counsel of ineffectiveness; court found any other attorney would face the same personality conflicts as did counsel, and denied counsel’s motion to withdraw).

Here, Clark described an “intolerable” situation in which he had no communication with his client. The motion to withdraw, filed well-before the date set for trial, before witnesses would have been subpoenaed, and with plenty of time for newly appointed counsel to come up to speed for trial, should have been granted. The events subsequent to that denial underscore the error in the trial court’s denial of the motion.

For instance, in the course of a status hearing on April 19, 2007, concerning plea negotiations, Clark told the court an oral offer had been made on March 28 and conveyed to the defendant. He again alluded to the failure in communication with Wanke when there was no communication from Wanke until Clark received a voicemail at some point asking that the offer be in writing, which Clark obtained on April 17. (R189-190) On May 4, Clark, in the absence of the defendant, told the court of his error in information given to the defendant during the plea negotiations (concerning the applicability of the extended term sentencing and the ineligibility for probation), his suggestion that the defendant reconsider the plea offer, and then the defendant’s lack of communication afterward, including his failure to come to the proceeding that day as instructed by Clark. (R198-204)

On May 7, Clark again described the complete lack of cooperation and failure to provide possibly relevant exhibits for an alibi defense the defendant wanted to raise. Clark renewed his motion to withdraw, detailing what he said was a lack of cooperation on the defendant’s part, and alleging what he believed was the defendant’s “ulterior motive” in behaving in such a manner. (R209-221, 224-225) The court denied the motion again, finding that “every bit is on” the defendant. (R221) The court also denied the defendant the opportunity to file a pro se motion at that same proceeding, noting, in a statement seemingly contrary to its denial of counsel’s motion to withdraw, that Wanke’s attempt to file the pro se motion was “indicative of the lack of communication” between Wanke and Clark. (R234-235)

The contentious nature of the relationship continued after the trial ended. The defendant had Clark include an allegation in the motion for new trial, claiming Clark provided ineffective assistance of counsel.    (C103-104) The defendant argued that claim on November 5, 2007, and included an accusation that Clark had withheld evidence from the court and prosecutor. (R1046-1054, 1055-1056) Clark briefly responded, saying he felt bound by the attorney-client relationship, but said the defendant’s claims were “intolerable,” and that when he asked the defendant for a list of complaints about the representation nothing was communicated back. (R1054-1055) The defendant’s claims were denied as was the motion for new trial. (E1058, 1060)

Under the circumstances of this case, Clark’s motion to withdraw, filed well before trial and with ample time for another attorney to come up to speed on the case, should have been granted. Clark’s description of the lack of cooperation or communication showed an attorney-client relationship that was beyond repair; the post-trial claims by the defendant support that conclusion. This was not, as in Ellis v. Texas, merely a personality conflict. Compare also People v. Coleman, 203 111. App. 3d 83, 99 (1st Dist. 1990) (no authority permits Court to equate “personality conflict” with conflict of interest). This was a situation in which the animosity between client and counsel was palpable from the record both before trial and after. Surely, when the relationship between attorney and client breaks down to the point where there is, as Clark told the court, absolutely no communication, preparing to properly and effectively represent a client becomes impossible. On the other side of that coin, if a client distrusts his attorney to the point that he feels compelled to stop communication and file motions of his own, it can no longer be considered a reasonable, effectiveattorney-client relationship. In short, Clark’s motions to withdraw prior to trial should have been granted.

The defendant, therefore, asks that this Court find that, because of the denial of the motions to withdraw, the defendant was ultimately deprived effective representation (as evidenced by the incorrect information affecting the decision to plead guilty or not), reverse the conviction, and remand this matter for a new trial.

Richard Wanke’s Appellate Brief and the attached Motion to Supplement the Record can be viewed in their entirety at http://richardwanke.com/richards-appellate-brief/