Fourth District Court of Appeal Judge Mark W. Klingensmith. Courtesy photo.

The Fourth District Court of Appeal has allowed a defense attorney to withdraw from a Palm Beach County felony criminal case after it came to light that his attorney fees might have been paid with stolen money, raising legal ethics questions and exposing the lawyer to liability.

Defendant Melissa Delacruz was charged in 2015 with stealing more than $100,000 from her employer, The Garden Depot in Jupiter, by using business credit cards and accounts for unauthorized personal expenses.

But in the middle of trial, her attorney Scott Skier of the Skier Law Firm in West Palm Beach told the judge he could no longer represent her after Delacruz's new employer claimed she'd used money stolen from them to pay her legal fees.

Skier had to lawyer up, according to the opinion, when the company threatened him with a lawsuit and bar complaint if he didn't wire back the money.

Skier moved to withdraw, citing irreconcilable differences and pointing to a conflict under Florida Bar rules. He told Palm Beach Circuit Judge John Kastrenakes he felt “victimized” by his client, according to the opinion, and could no longer advocate for someone who'd made him and his firm vulnerable to litigation.

But the trial court disagreed, finding that Skier was representing his client effectively, and noted the defendant was presumed innocent until proven guilty.

Kastrenakes compared Skier's predicament to providing pro bono services when a client fails to honor a fee agreement, telling him, ”My firm belief without giving you legal advice is that's your money as long as you knew and had no reason to believe that it was fraudulently earned,” according to the opinion.

Skier filed another motion to withdraw, arguing that he wasn't worried about payment but had instead been compromised and had to lie to jurors.

The trial court denied the motion again, but that was an error, according to the Fourth DCA, because Skier had established a conflict of interest.

“While defense counsel presented a vigorous defense for his client throughout trial, despite being placed in this untenable position, we disagree that the error was harmless,” the opinion said.

Skier said the opinion validated his belief that he couldn't properly advocate for Delacruz in light of the allegations.

“This was one of the most difficult acts that I have performed as a professional,” Skier said. “The trial court ordered me to zealously advocate for a client who was accused of the very same behavior as the matter before the jury but the effect of that behavior was on myself and my practice. On a side note, I am happy that Ms. Delacruz will be afforded the opportunity to have her case re-tried with conflict-free counsel.”

Miami lawyer Brian Tannebaum of Bast Amron specializes in ethics and white-collar defense. He was not involved in the litigation but agreed with the appellate panel that the issue went far beyond a typical fee dispute.

“This was not just a lawyer saying, 'I'm owed money.' This was a lawyer saying, 'My entire fee is in jeopardy and I may be in possession of the results of a crime,'” Tannebaum said. “I believe it was clearly a conflict based on the threat to the lawyer, regarding the fee being stolen money and being sought after by the company.”

Kastrenakes said he might have granted the withdrawal if Skier had asked a few months before trial, but as Tannebaum sees it, conflicts of interest don't arise on schedule.

“Any time a conflict of interest develops it's the lawyer's obligation to address that with the court,” Tannebaum said.

Though the Fourth DCA said it found no case law tailored for this specific set of facts, it relied on Williams v. State, where a defense attorney was allowed to withdraw because the state's witness was also defense counsel's investigator, creating an issue of conflicting loyalties.

The ruling means a new trial for Delacruz, who was found guilty and sentenced to three concurrent sentences of 20, 15 and five years in prison.

'Serious constitutional implication'

Fourth DCA Judge Mark W. Klingensmith wrote the opinion, with Judges Melanie G. May and Cory J. Ciklin concurring.

Ciklin concurred specially, expressing alarm that the defendant wasn't included in various ex-parte sidebar conferences between the trial judge and her lawyer, who “expressed distaste” at representing her.

“I write separately to call attention to a scenario that could easily repeat itself,” Ciklin wrote. “A scenario fraught with serious constitutional implication that—in my opinion—could lead to a reversal every time.”

Ciklin stressed the defendant's Sixth Amendment right to participate in such “crucial” conversations.

“The appellant might as well have been in the courthouse coffee shop because she would have been just as 'absent' from the proceedings,” Ciklin wrote.

Delacruz's appellate attorneys West Palm Beach Public Defender Carey Haughwout and Assistant Public Defender Paul Edward Petillo declined to comment.

Florida Attorney General Ashley Moody and Assistant Attorney General Jessenia J. Concepcion in West Palm Beach represent the state. Their office said via email, “The Fourth District Court unanimously reversed for a new trial. There is no basis for rehearing. Therefore, the case will return to the trial court for a new trial pursuant to the court's disposition of the appeal once mandate issues.”

Read the opinion:

 

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