Opinion
96-CV-820
April 25, 2000.
PAUL J. LUPIA, ESQ., of Legal Aid Society Of Mid-New York, Inc., Utica, N.Y., for plaintiff.
John Flores, Utica, N.Y., Pro Se.
ORDER
Before the court is an order to show cause of The Legal Aid Society of Mid-New York, Inc., Paul J. Lupia, Esq., of counsel, pursuant to Rule 83.2 of the Local Rules of the Northern District of New York, to withdraw a counsel in a civil action for plaintiff John Flores.
Attorney Lupia has filed a statement with the court containing the following information:
Plaintiff filed the complaint in this case on May 21, 1996. On August 16, 1996, a Report-Recommendation was filed by then Magistrate Judge Hurd finding that the complaint was inadequate and directing plaintiff to file an amended complaint within 45 days or the complaint would be dismissed. By order dated October 29, 1996, Senior District Court Judge Munson approved the Report-Recommendation, granted judgment for the defendants and dismissed the complaint in its entirety for plaintiff's failure to comply with the Magistrate Judge's order.
On November 27, 1996, plaintiff signed a retainer agreement with the Legal Aid Society of Mid-New York, Inc. to represent him in appeals proceedings. The agreement did not include representation in trial proceedings. After the Equal Employment Opportunity Commission ("EEOC"), issued a right to sue letter on December 23, 1996, attorney Lupia undertook an investigation to determine if his office would continue to represent plaintiff.
Attorney Lupia, Esq. then consulted with defendants' attorney, Stuart Pratt, Esq., who granted him permission, without Mr. Pratt being present, to interview five employees of Graftex Corporation, to further interview any other Graftex employees without restriction, and to have free an complete access to plaintiff's Graftex employment records. The interviews and employment records review took eight hours.
In a letter dated March 4, 1997, Attorney Lupia advised plaintiff that, based upon his factual investigation his office would not further represent him with respect to his claims against defendants. The letter contained an analysis of plaintiff's potential disability and national origin discrimination claims against the defendants, under both state and federal law.
Without advising attorney Lupia, plaintiff filed a pro se motion to reopen his case on January 15, 1997. This court granted the motion on March 31, 1999. On May 19. 1996, plaintiff, pro se, filed an amended complaint which was never delivered to attorney Lupia. On September 29, 1999, an order directed defendant Lupia to file an amended complaint within 30 days from the date of the order. Attorney Lupia asserts that he did not receive a copy of this order from the Court Clerk but was provided one by an attorney who had apparently received the order by mistake. On October 29, 1999, attorney Lupia again wrote plaintiff advising him that his office could not represent him. Based upon the above information, attorney Lupia believes that he cannot represent plaintiff or comply with the court's order to file an amended complaint on his behalf.
An attorney-client relationship is consensual, and actions of either party can effect its continuance. Flynt v. Brownfield, Bowen Bally, 882 F.2d 1048, 1052 (6th Cir. 1989). It is evident that attorney Lupia does not agree with plaintiff's legal position in this case, and his further representation of plaintiff could present a serious attorney/client conflict of interest. Under the circumstances of this case and without considering its merits, the court grants the motion of attorney Lupia to withdraw as counsel of record for plaintiff.
The court notes that while plaintiff submitted no written response to the motion to withdraw, he did appear at oral argument and stated to the court that he had no objection to attorney Lupia's withdrawal as his counsel in this matter. Accordingly, attorney Lupia's motion is GRANTED and he will be permitted to withdraw as plaintiff's attorney in this case.
IT IS SO ORDERED
Dated: April 21, 2000 Syracuse, New York