IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF FLORIDA 

PENSACOLA DIVISION 

UNITED STATES OF AMERICA, 

Plaintiff, 

vs. CASE NO.: 3:10mc00063-MCR-EMT 

JEFFREY DICKSTEIN, 

Defendant. 

DEFENDANT’S MOTION TO DISMISS ORDER OF CRIMINAL 

CONTEMPT 

The Defendant, through counsel, moves to dismiss the pending criminal 

contempt proceedings and in support thereof shows the following: 

1. Orders of this Court and undisputed facts of record demonstrate, as a 

matter of law, the Defendant is not guilty of criminal contempt as 

charged in this Court’s order of August 18, 2010. 1 

2. As addressed more specifically in the memorandum in support of this 

motion, the Defendant did not engage in criminal contempt by filing a 

proper motion with the Court requesting to be relieved as counsel of 

record regardless of the grounds asserted. Indeed, where grounds are 

believed to exist, it is counsel’s responsibility to apprize the Court 

through proper motion and have such matters resolved through order of

 

1 Unless otherwise noted, reference to documents of record are in Case No. 3:08-cr-00079/MCR-1 

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the court. 

3. Dickstein filed a motion with the Court to be relieved as counsel of 

record for the Defendants Claudia and Mark Hirmer. (Document 1192). 

 By order of May 10, 2010, the Court denied Dickstein’s motion and, 

because of the financial concerns raised by Dickstein, appointed 

Dickstein as CJA counsel for Defendants Claudia and Mark Hirmer. 

(Document 1217). Subsequently Dickstein filed a Motion for 

Reconsideration of the order appointing him as CJA counsel. 

(Document 1224). Grounds asserted therein demonstrated, among other 

things, a potential conflict of interest with Mark and Claudia Hirmer, 

irreconcilable differences that had arisen through the lengthy trial, and 

other facts demonstrating it would not be in the best interest of the 

Hirmers to be further represented by Dickstein. The Court conducted a 

hearing on this motion on June 3, 2010. Thereafter, on June 9, 2010, 

this court entered an order granting the motion of Dickstein for 

reconsideration of the Court’s order appointing him as CJA counsel. 

The order concluded “Mr. Dickstein is discharged as counsel of record 

for the Defendants in this case.”. (Document 1243). 

4. It was not until August 18, 2010, that this Court entered the order 

entitled “Notice and Order of Criminal Contempt Proceedings” 

asserting Dickstein willfully violated this Court’s Standing Order and 

Case 3:10-mc-00063-MCR -EMT Document 25 Filed 10/07/10 Page 2 of 12
Notice to Retained Criminal Defense Attorneys (Document 124) and the 

Court’s “Verbal Order in Open Court on September 16, 2009, advising 

him that he would be required to represent the Hirmers, even if they 

could not pay his fees.” (Case 3:10-mc-00063 MCR/EMT, Document 

1). 

5. There is no authority for the proposition that filing a motion with the 

Court to be relieved as counsel of record, regardless of the grounds, 

places an attorney in contempt of Court. The Court ultimately granted 

that motion relieving Dickstein as counsel for the Hirmers. 

In consideration of the foregoing and as further addressed through 

memorandum of law in support of this motion, the order of contempt proceedings 

must be dismissed. 

MEMORANDUM IN SUPPORT OF MOTION

 The Standing Order and Notice to Retained Criminal Defense Attorneys, Doc. 124 

in the underlying case of United States v Hirmer, Case No. 3:08-cr-79 (U.S.D.C.N.D.Fla), 

is a basic reiteration of Local Rule 11.1(G): 

(G) Responsibility of Retained Counsel in Criminal 

Cases. 

Unless the court , within seven (7) calendar days 

after arraignment, is notified in writing of counsel’s 

withdrawal because of the defendant’s failure to 

make satisfactory financial arrangement, the court 

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will expect retained criminal defense counsel to 

represent the defendant until the conclusion of the 

case. Failure of a defendant to pay sums owed for 

attorneys’ fees or failure of counsel to collect a sum 

sufficient to compensate for all the services usually 

required of defense counsel will not constitute good 

cause for withdrawal after the seven-day (7) period 

has expired. 

Local Rule 11.1(G)(1). 

 The Standing Order and Local Rule sets forth “expectations” of the Court regarding 

retained attorneys, and provides that the failure of a client to pay the retained attorney shall 

not constitute good cause to support a motion to withdraw. The Standing Order and Local 

Rule neither prohibits an attorney from withdrawing on any other ground that is premised 

on good cause. An attorney can not, however, unilaterally withdraw. An attorney must 

first obtain approval of the court: 

(F) Withdrawal of Attorneys. 

(1) Approval of Court Required. No attorney, firm, or agency, 

having made an appearance, shall thereafter abandon the 

case or proceeding in which the appearance was made, or 

withdraw as counsel for any party therein, except by written 

leave of court obtained after giving ten (10) days notice to 

the party or client affected thereby and to all other counsel 

of record. 

(2) Non-Payment of Fees. Failure to pay attorneys’ fees shall 

not be reason for seeking leave to withdraw if the 

withdrawal of counsel is likely to cause a continuance of a 

scheduled trial, hearing or other court proceeding 

Local Rule 11.1(F)(1)(2). 

 Here again, the Local rules reiterate that if the sole reason for the withdrawal is the 

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nonpayment of attorneys’ fees, that will not be a sufficient reason to withdraw if the 

withdrawal is likely to cause a continuance of a scheduled hearing. The rule does not 

preclude filing a motion to withdraw on other grounds. Local Rule 7.1, together with Local 

Rule 11.1(F), makes clear that if any attorney has other grounds upon which to withdraw 

from representation, he should seek permission of the court by filing a written motion. 

 An attorney appearing in the Northern District of Florida is bound to follow the 

Rules of Professional Conduct of the Rules Regulating the Florida Bar: 

(E) Disbarment and Discipline. 

(1) Profession Conduct. Except where an act of Congress, 

federal rule of procedure, Judicial Conference Resolution, or 

rule of court provides otherwise, the professional conduct of 

all members of the bar of this district, with respect to any 

matter before this court, shall be governed by the Rules of 

Professional Conduct of the Rules Regulating The Florida 

Bar. 

Local Rule 11.1(E)(1). The applicable rules of The Florida Bar in the underlying case 

were: 

RULE 4-1.16 DECLINING OR TERMINATING REPRESENTATION 

(a) When Lawyer Must Decline or Terminate Representation. 

Except as stated in subdivisions ( c ), a lawyer shall

not represent a client or, where representation has 

commenced, shall withdraw from the representation 

of a client if (emphasis added): 

(1) the representation will result in violation of 

the Rules of Professional Conduct or law; 

(2) the lawyer’s physical or mental condition 

materially impairs the lawyer’s ability to 

represent the client’ 

(b) When Withdrawal Is Allowed. Except as stated in 

Case 3:10-mc-00063-MCR -EMT Document 25 Filed 10/07/10 Page 5 of 12
subdivision (c), a lawyer may withdraw from representing a 

client if: 

(4) the representation will result in an unreasonable 

financial burden on the lawyer or has been 

rendered unreasonably difficult by the client; or 

(5) other good cause for withdrawal exists. 

( c) Compliance With Order of Tribunal. A lawyer must comply 

with applicable law requiring notice or permission of a 

tribunal when terminating a representation. When ordered 

to do so by a tribunal, a lawyer shall continue representation 

notwithstanding good cause for terminating the 

representation 

and 

 

 RULE 4.17 CONFLICT OF INTEREST; GENERAL RULE 

(a) Representing Adverse Interests. A lawyer shall not 

represent a client if the representation of that client will be 

directly adverse to the interests of another client, unless; 

(1) the lawyer reasonably believes the representation 

will not adversely affect the lawyer’s responsibilities 

to and relationship with the other client; and 

(2) each client consents after consultation. 

(b) Duty to Avoid Limitation on Independent Professional 

Judgment. A lawyer shall not represent a client if the 

lawyer’s exercise of independent professional judgment in 

the representation of that client may be materially limited by 

the lawyer’s responsibilities to another client or to a third 

person or by the lawyer’s own interest, unless: 

(1) the lawyer reasonably believes the representation 

will not be adversely affected; and 

(2) the client consents after consultation. 

The comment to this rule states: 

 Comment 

Case 3:10-mc-00063-MCR -EMT Document 25 Filed 10/07/10 Page 6 of 12
 Loyalty to a client 

Loyalty is an essential element in the lawyer’s relationship to a 

client. An impermissible conflict of interest may exist before 

representation is undertaken, in which event the representation 

should be declined. If such a conflict arises after representation 

has been undertaken, the lawyer should withdraw from the 

representation. See rule 4-1.16. (Emphasis added). 

So too, as a member of the State Bar of California, Dickstein is also bound to 

follow the California Rules of Professional Conduct. The applicable rule in the 

underlying case was: 

 California Rules of Professional Conduct, Rule 3-700(B)(3). 

(B) Mandatory Withdrawal. 

A member representing a client before a tribunal shall withdraw 

from employment with the permission of the tribunal, if required by 

its rules, and a member representing a client in other matters shall 

withdraw from employment, if (emphasis added): 

(3) The member’s mental or physical condition renders 

it unreasonably difficult to carry out the employment 

effectively. 

These rules create a mandatory obligation upon the lawyer to withdraw if 

certain circumstances exist. A foriori the lawyer is responsible for making 

the determination if: 

1) Continued representation will result in violation of the Rules 

of Professional Conduct or law; and/or 

2) The lawyer’s physical or mental condition materially 

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impairs the lawyer’s ability to represent the client; and/or 

3) The representation will result in an unreasonable financial 

burden on the lawyer or has been rendered unreasonably 

difficult by the client; and/or 

4) The representation of a client will be directly adverse to the 

interests of another client. 

Once a lawyer reaches the conclusion that one or more of the conditions 

exist that requires withdrawal, he may not unilaterally withdraw. He must 

present the grounds to the court in a motion, after giving written notice to 

the clients, and thereafter accept the determination of the court as to 

whether his withdrawal shall be allowed. 

 According to the Order of Criminal Contempt filed in this action, 

after the verdict but before the next scheduled hearing, Dickstein filed a 

motion for leave to withdraw citing two grounds: 1) personal financial 

difficulties and 2) the clients’ failure to pay him.(3:10-mc-00063-MCREMT) (Doc. 1, pp. 1-2). While the second ground, by local rule, would not 

constitute good cause for withdrawal, the first ground created a physical and 

mental condition materially impairing Dickstein’s ability to represent the 

client; i.e., Dickstein no longer had a home, an office, internet access, nor 

funds to finance the Hirmer’s continued representation, including payment 

of airfare and lodging expenses in Florida, fees for an appeal, or fees to 

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purchase the transcript for appeal. 

 In filing the motion Dickstein complied with all applicable rules and 

did not disobey or resist this Court’s lawful writ, process, order, rule, 

decree, or command, including the Standing Order. See 18 U.S.C. §401(3). 

 The applicable rules required Dickstein to notify the Court of various 

circumstances, and it would be an abuse of the contempt process to punish 

him for complying with his other mandatory duties. See United States v 

Lee, 720 F.2d 1049 (9th Cir. 1983) (filing of an authorized motion cannot, 

by itself, constitute disobedience); Waste Conversion, Inc. v Rollins 

Environmental Services (NJ), Inc., 893 F.2d 605 (3rd Cir. 1990) (filing of 

motion and waiting until court either grants or denies the motion does not 

establish criminal willfulness to disobey or resist a lawful order of the 

court). 

 In response to Dickstein’s motion for leave to withdraw, the Court 

issued an order in two parts: denying the motion to withdraw and 

appointing Dickstein under the Criminal Justice Act. According to 

Dickstein’s Motion for Reconsideration, between the filing of his original 

motion to withdraw and the Court’s order appointing him under the CJA, 

several issues arose creating what Dickstein believed to be conflicts of 

interest mandating his withdrawal and precluding him from continuing to 

represent the Hirmers. 

Case 3:10-mc-00063-MCR -EMT Document 25 Filed 10/07/10 Page 9 of 12
 The Order of Criminal Contempt states at page 2 that Dickstein 

notified the court in his response to the order appointing him under the CJA, 

“of his refusal to accept the CJA appointment”. Dickstein’s Motion for 

Reconsideration (Doc. 1224) contains allegations of facts as to why 

Dickstein believed he was required not to accept the appointment, and as 

before, left it to the discretion of the Court to either grant or deny his motion 

for reconsideration. 

 Criminal contempt is established when it is shown that a defendant 

is aware of a clar and definite court order and willfully disobeys the order. 

United States v. Rylander, 714 F.2d 996 (9th Cir. 1983). There must be a 

contemptuous act and a willful, contumacious, or reckless state of mind to 

justify criminal contempt conviction for failure to comply with court order. 

In re Joyce, 506 F.2d 373 (5th Cir. 1975). 

An attorney may with impunity take full advantage of the range of 

conduct that the adversary system allows. That includes a reasonable 

opportunity for appropriate objection or other indicated advocacy (In the 

Matter of David Dellinger, et. al., 461 F.2d 389 (7th Cir. 1972)) such as 

filing a motion involving the attorney’s concerns in complying with the 

Professional Rules of Conduct to which he is bound, and asking the Court to 

rule upon those concerns. 

 There is no question but that had the court not granted Dickstein’s 

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motion to withdraw, and Dickstein thereafter failed to provide 

representation to his clients, he could be charged with criminal contempt. 

Here, however, that did not happen. The Court has in essence charged 

Dickstein with a criminal contempt for an anticipatory refusal to provide 

representation. There is no case law in existence upholding a contempt for 

an anticipatory refusal to disobey a Court’s order, nor case law holding that 

such an anticipatory refusal can constitute the basis for a Court to issue a 

criminal contempt citation. 

 Based upon the case law cited herein, the facts as alleged in the 

Order of Criminal Contempt, and the obligations imposed upon Dickstein to 

notify the Court of those concerns and seek permission to withdraw, the 

Order of Criminal Contempt fails to state an offense, and should be 

dismissed. 

 Respectfully submitted, 

 

 /s/ Joseph L. Hammons 

JOSEPH L. HAMMONS 

FBN: 218979 

The Hammons Law Firm, P.A. 

17 W. Cervantes Street 

Pensacola, FL 32501 

(850) 434-1068 

Attorney for Defendant 

* * * 

Case 3:10-mc-00063-MCR -EMT Document 25 Filed 10/07/10 Page 11 of 12
CERTIFICATE OF SERVICE

I CERTIFY that a copy of the foregoing has been furnished to Stephen M. 

Kunz, U.S. Attorney’s Office, 111 North Adams Street, 4th Floor, Tallahassee, FL 

32301, by electronic filing, on 7th October, 2010. 

 /s/ Joseph L. Hammons 

 JOSEPH L. HAMMONS 

FBN: 218979 

The Hammons Law Firm, P.A. 

17 W. Cervantes Street 

Pensacola, FL 32501 

(850) 434-1068 

Attorney for Defendant 

Case 3:10-mc-00063-MCR -EMT Document 25 Filed 10/07/10 Page 12 of 12