MEMORANDUM ORDER DENYING MOTION FOR SUBSTITUTION OF COUNSEL

RON CLARK, District Judge.

Petitioner David Lee Jackson was convicted of murder and the use of a dangerous weapon to commit murder, in violation of federal law, and sentenced to death. His conviction and sentence were affirmed by the United States Court of Appeals for the Fifth Circuit, and the Supreme Court denied Mr. Jackson's petition for writ of certiorari.1 Pro bono counsel from O'Melveny & Myers first appeared on his behalf in this habeas proceeding on October 1, 2009. On the motion of trial counsel, the court appointed James Lohman as habeas co-counsel on October 13, 2009.

Over the course of the next two years, Mr. Lohman submitted six CJA 30 vouchers totaling $141,674.39 for services rendered between October 13, 2009 and September 27, 2011.2 This does not include the amount of money Mr. Lohman unsuccessfully requested specifically in connection with an Atkins hearing.3

To date, Mr. Lohman has been paid $85,755.29,4 or about 60% of the funds for which he submitted CJA vouchers. As the court has pointed out in orders ruling on his CJA requests, his description of work performed was frequently inadequate.5

Mr. Lohman now seeks to withdraw as counsel, in favor of Morris H. Moon of the Federal Capital Habeas Project. The request is unopposed by Mr. Jackson, and seems to be based solely on Mr. Lohman's failure to receive all of the money he has requested in this case.

Discussion

Texas Disciplinary Rule of Professional Conduct 1.15(b)6 states that a lawyer "shall not withdraw from representing a client" unless one of seven enumerated grounds are met. In this case, the court understands Mr. Lohman's request to be based on Rule 1.15(b)(6): "the representation will result in an unreasonable financial burden on the lawyer...." However, Rule 1.15(c) goes on to state that "[w]hen ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation."

While the court assumes that Mr. Moon is qualified, this habeas case has been pending for nearly three years. The petition has been filed, and discovery is all but complete. The Atkins hearing setting for July 2011 was continued at Mr. Lohman's request.7 Doc. # 88 at 1. The hearing has since been continued several times because Mr. Jackson's mental retardation expert Dr. Victoria Swanson is currently undergoing debilitating radiation and chemotherapy cancer treatment.

Mr. Lohman has been involved from the beginning of this habeas case, and asserts that he is experienced in the field of mental retardation claims. Based on the billing requests, the work Mr. Lohman has done on the merits involves the presentation of the Atkins claim; one would expect him to take the lead at the hearing. Since the Atkins hearing has been continued three times, Mr. Lohman presumably was, and is, prepared to present his client's position. Professions in the motion to the contrary, Mr. Moon would require time to prepare for the Atkins hearing, necessarily imposing more costs on the system.

Mr. Lohman's position is grounded on one of two equally unacceptable premises: (1) a CJA attorney may desert a client on death row for "financial concerns" if a court dares to review a bill and declines to pay it in full; or (2) a CJA attorney may draw from the well of public money without limit. In this case Mr. Lohman has been paid $85,755.29, and the Circuit Court has indicated that it will make a final review of additional amounts that have been retained at the close of the case. See, e.g., Doc. # 113. In light of these payments, to say nothing of those to his wife, there has been no showing that the attorneys' fee of $8,424.00 approved for a hearing that should not last three full days, will be "an unreasonable financial burden" on Mr. Lohman. It is not inequitable for the court to expect some return on the taxpayers' investment.

Mr. Lohman has argued that he is entitled to compensation based on some average or median of fees paid to different lawyers, in unrelated cases before other courts. See, e.g., Doc. # 86 Apps. A, B. The court rejects the notion that some minimum amount, say $500,000.00 or $1,000,000.00, is constitutionally required in every death penalty habeas case. While academics and litigators may disagree, experienced trial lawyers know from bitter experience that, on occasion, what appeared to be a simple case requires a great deal of time and effort. And sometimes, a complex case can be successfully concluded far more easily than expected. In the end, examination of attorney and expert fee bills must be conducted on a case by case basis. See, e.g., Webb v. Bd. of Educ. of Dyer Cty., Tenn., 471 U.S. 234, 241-42, 105 S.Ct. 1923, 1928, 85 L.Ed.2d 233 (1985) (in the context of attorney's fees to a prevailing party in a civil rights action under 42 U.S.C. § 1988: "the amount to be awarded necessarily depends on the facts of each case ....") (internal quotation omitted).

Conclusion

After reading the petition, this court, without cutting off any right to later argue other issues raised in the petition, ordered counsel to focus on two issues that had not been ruled on at trial, one of them being mental retardation. The court has approved and paid for the services of mitigation investigator Rachel Rogers, fact investigator Joseph Thornton, psychiatrist Dr. Richard Dudley, psychologist Dr. Victoria Swanson, and prison expert Mark Bezy. A review of the papers makes it clear that pro bono counsel from O'Melveny & Myers spent long hours preparing most, if not all, of the petition, and have more than fulfilled their professional responsibilities. Except for the unfortunate illness of Dr. Swanson, the case is ready for the Atkins hearing.

Mr. Lohman, who is listed on the docket sheet as lead counsel, and has obviously been responsible for the presentation of Atkins claims, and who has been paid $85,755.29, with another $8,424.00 approved for the hearing itself, now wants to quit. The ethical ramifications of Mr. Lohman's position aside, three years into a case is not the time to substitute lead counsel. Having licked the cream off the scone, Mr. Lohman is not free to return it to the taxpayers' plate.

It is ORDERED that the Unopposed Motion for Substitution of Counsel [Doc. # 148] is DENIED.