United States v. Tillman

An order removing appointed counsel cannot be directly appealed because the order is nonfinal but can be raised by the defendant on appeal of the underlying case; additionally, a sanctions order can be directly appealed because it raises serious implications regarding the attorney’s reputation.

Attorney John R. Grele represented defendant Markette Tillman as defense counsel during a case for murder and other charges. On February 14, 2013, about five years after Tillman’s indictment, Grele emailed a financial specialist for the court regarding nonpayment of vouchers he had submitted for his work in the Tillman case. The email stated that if Grele was not provided with timely payment, his ability to competently represent Tillman would be in conflict with his ability to meet his financial obligations. On February 20, 2013, the judge responded to Grele’s email. The judge reminded Grele that he cannot withdraw his representation without a court order and warned that he would be advising the pertinent bar associations of Grele’s actions. Following a status hearing set by the court, the court entered an order removing Grele as Tillman’s attorney and recommending sanctions for attempting to extort the court, violating ethical obligations to clients, and attempting to manufacture an ineffective assistance of counsel claim for his client. Tillman was appointed new counsel and the underlying case is ongoing. Tillman and Grele appealed Grele’s removal, and Grele appealed the sanctions order against him. The Ninth Circuit held that under Flanagan v. United States, it lacks jurisdiction to hear Tillman and Grele’s appeal because the removal order is nonfinal and cannot be brought on direct appeal. The panel held that it could hear Grele’s challenge to the sanctions order because it had an immediate impact on Grele’s reputation. The panel ultimately vacated the sanctions order because Grele had not been given notice and an opportunity to be heard. DISMISSED in part; VACATED in part; GRANTED in part.