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A South Bay judge’s attempt to stamp out a fee arrangement commonly used by private defense lawyers was itself stamped out by a state court of appeal panel Friday. After taking over as supervisor of the criminal courts in January, Santa Clara Superior Court Judge Kevin Murphy refused to allow defense lawyers to withdraw at the conclusion of the preliminary examination. South Bay defense lawyers often accept retainers to represent criminal defendants only through the arraignment and preliminary exam. If the matter isn’t resolved, the lawyer then moves to withdraw, leaving the public defender’s office to assume representation. Some prosecutors and public defenders believe the retainers are designed to milk poor clients of their savings in exchange for relatively little legal work. But the Sixth District Court of Appeal ruled Friday that Murphy abused his discretion when he refused in January to allow attorney Dennis Alan Lempert to withdraw from the representation of rape defendant Robert Campbell. “We have very serious concerns with the trial court’s expressed desire to discourage financial arrangements between a defendant and his or her counsel of choice,” wrote Justice Conrad Rushing. “By the same token, we also have serious concerns with the court’s expressed willingness to coerce counsel to represent an indigent defendant without compensation” as part of an “expressed policy of discouraging legitimate financial arrangements.” At the hearing on the motion to withdraw, Lempert had said he’d continue representing Campbell if he was appointed and paid by the court. Murphy refused. “I was then going to appoint you and direct you to represent the defendant at no cost,” Murphy told him. “I think involuntary servitude may be a little bit strong in terms of your assessment of my position.” The moves by Murphy drew heated criticism from defense lawyers. Lempert said Friday he was “delighted” with the published opinion in Lempert v. Superior Court (Campbell), H025600. “The law is clear,” he said. “Most defense attorneys do it. It is very, very practical. Most cases resolve before or at preliminary exam.” Lempert said the public defender’s criticism of the fee deals stemmed from budgetary concerns. “It is regrettable that a public agency would malign conscientious defense lawyers in order to minimize their own budget constraints.” Chief Assistant Public Defender David Mann said Friday he hadn’t yet read the decision.

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