Friday, April 25, 2008

Exhibit "A": Zappala, Justice, dissenting (2)

If a defendant is forced to suffer the loss of the benefits that a right is intended to protect, then it does not matter that, after the fact, a court is willing to reinstate that right in a technical fashion. Practically speaking, the defendant will only be able to recover those benefits that survived the erroneous denial of the right in the first place. See Bell v. Beneficial Consumer Co., 465 Pa., 225, 228, 348 A.2d 734, 735 (1975) (“a finding of finality must be the result of a practical rather than a technical construction.”)

Some of the benefits of a defendant’s right to chosen counsel were discussed in Cassidy, where the Superior Court held that an order disqualifying a defendant’s counsel was immediately appealable. The court explained that requiring a defendant to proceed to trial without counsel of choice forces the defendant to reveal his or her defense, as well as the testimony of witnesses, to the prosecution. Cassidy, 390 Pa.Super. at 366, 568 A.2d at 696. Consequently, even if the defendant is awarded a new trial due to the improper disqualification of his or her attorney, the defendant has already been permanently prejudiced. Id. Additionally, the court found it fundamentally unfair to require a defendant to proceed to trial without counsel of choice and incur the attendant counsel fees in order to vindicate on appeal the right to be represented by the attorney initially retained. Id. at 366, 568 A.2d at 696-97. The court also concluded that it could not convincingly protect a defendant’s right to counsel of choice if the defendant had to bear the anxiety of trial and the humilliation of conviction before appealing the issue. Id. at 361, 568 A.2d at 697.

The majority rejects Cassidy on the grounds that the court’s reasons for permitting immediate appeal are common to all erroneous pre-trial rulings, yet the majority of pre-trial rulings are not immediately appealable. Majority Opinion at 834. According to the majority, the Cassidy court’s concerns "have nothing to do with whether the right to counsel of choice is lost if not reviewed before judgement.” Id. at 834. To the contrary, I find that the court’s concerns are very relevant to the issue of whether the right to counsel of choice will be irreparably lost, since those concerns reflect the benefits of the right itself. As previously noted, if the benefits of a defendant’s right to his chosen counsel are lost, then in both a logical and practical respect the right itself is lost.

Moreover, there are additional consequences of forcing a defendant to wait until after judgment to appeal a disqualification order not addressed in Cassidy, Flanagan or the majority’s opinion. For example, the defendant’s chosen counsel may not be available for a second trial due to illness, relocation, or other work that prevents him or her from representing the defendant in a new trial. If this is the case, then the defendant’s right will have been irreparably lost. There is.also the possibility that a defendant may not have the financial resources to obtain the originally chosen attorney a second time. Additionally, the defendant might be hesitant to confide in the new attorney after having been stripped of his or her first attorney.

Simple reinstatement of the original attorney after trial will not repair the defendant’s lost faith in the certainty of his relationship with his attorney. See Osoba, at 151, citing Margolin & Coliver, Pretrial Disqualification of Criminal Defense Counsel, 20 Am.Crim.L.Rev. 227, 227—28 (1982). The only way to prevent such a rupture is to permit such orders to be immediately appealed.


2. In Bell, we held that an order dismissing the class aspects of a suit is a final order for the parties put out of court and is appealable even though, in theory, the named plaintiffs can individually pursue action further and the ousted members of the class can bring separate individual actions. Bell, 465 Pa. 225, 348 A.2d 734 (1975)

3. In Flannigan, jurisdiction was not challenged in the lower court. Therefore, the Court avoided a number of potential arguments regarding the issue of immediate appealability. Indeed, the Court failed to address any of the rationales that a number of circut courts had employed in concluding that disqualification orders were immediately appealable. See Wayne F. Osoba, Immediate Appealability of Orders Disqualifying a Criminal Defendant's Counsel, Univ.Ill.L.Rev. 135, 137 n. 16 (1984), citing 52 U.S.L.W. 4201, 4202 n. 2 (U.S. Feb. 21, 1984).