Opinion
Index No. 538106/2022 Seqs. No. 001
09-10-2024
Rolando Penafiel, Plaintiff, v. Britt Realty, LLC and 1504 Jeff LLC, Defendants. Britt Realty, LLC and 1504 Jeff LLC, Third-Party Plaintiff, v. MEC General Construction/Rev, Inc. d/b/a MEC General, Inc. d/b/a MEC General, Inc., Third-Party Defendants.
Unpublished Opinion
DECISION/ORDER
DEVIN P. COHEN JUSTICE OF THE SUPREME COURT Recitation, as required by CPLR §2219 (a), of the papers considered in the review of this Motion
Papers Numbered
Notice of Motion and Affidavits Annexed .... ___
Order to Show Cause and Affidavits Annexed. 1
Answering Affidavits.................... 2
Replying Affidavits........................... ___
Exhibits............................... Var,
Other.......................................___
Upon the foregoing papers, Subin & Associate (Subin)'s order to show cause (OSC) to be relieved as counsel (Seq. 001) is decided as follows:
Generally, an attorney is permitted to withdraw as counsel upon "such notice ... as the court may direct," after a reasonable "showing that good cause exists to end the attorney client relationship" and that the motion is not being made as a tactic to delay a hearing or trial (CPLR 321 [b] [2]; Matter of Cassini, 182 A.D.3d 13, 40 [2d Dept 2020]; see also Rivardeneria v New York City Health and Hospitals Corp., 306 A.D.2d 394 [2d Dept 2003]). "The decision to grant or deny permission for counsel to withdraw lies within the discretion of the trial court" (Bank of Am., N.A. v Chadha, 214 A.D.3d 695, 695 [2d Dept 2023]). Break-downs of the attorney-client relationship, failure of cooperation by a client, and actions or requests by clients that would cause the attorney to violate the Rules of Professional Conduct by continuing representation, among other reasons, serve as good cause for ending the attorney-client relationship (see Farage v Ehrenberg, 124 A.D.3d 159, 165 [2d Dept 2014]; see also Green v Gasparini, 24 A.D.3d 505 [2d Dept 2005]).
Here, Subin served the instant OSC upon the plaintiff individually and upon defense counsel as directed by the court. Plaintiff individually did not oppose the motion. The note of issue has not been filed and the case is not on the trial calendar. However, defendants filed written opposition to this motion.
As an initial matter, it is not clear that defendants have standing to oppose plaintiffs counsel's motion, as the motion is made against the plaintiff individually, not the defendants, and defendants would not be "aggrieved" as defined by the Appellate Division if this motion were granted (see Mixon v TBV, Inc., 76 A.D.3d 144, 156-157 [2d Dept 2010]). Moreover, defendant does not actually state opposition to Subin withdrawing as counsel per se, but rather objects to the justification Subin has offered for withdrawal, objects to Subin's request to disclose additional information in camera if it is required, and demands that the relief requested be conditioned upon the exchange of attorney-client communications and attorney records.
Defendants are incorrect that allowing Subin to provide additional details or information in camera is impermissible. "Where withdrawal may be accomplished simply on the basis of counsel's statement that professional considerations require it, no more should be disclosed" (NYS Bar Ethics Opinion 1057 [6/5/2015] at ¶ 14). Where withdrawal cannot be so accomplished, the court may conduct an in camera hearing to assess the validity of counsel's request (id. at ¶ 15). This practice is permitted to "prevent a party from being prejudiced by the application of counsel to withdraw" (ISC Holding AG v Nobel Biocare Investments, N. V., 759 F.Supp.2d 289, 294 [SDNY 2010] [aff'd sub nom. ISC Holding AG v Nobel Biocare Fin. AG, 688 F.3d 98 (2d Cir 2012)]). "A judge may initiate or consider any ex parte communications when authorized by law to do so" (NY Rules of Chief Administrative Judge § 100.3 [e]).
However, notwithstanding the propriety of an in camera showing, Subin represented to the court in the presence of opposing counsel that the motion to withdraw was filed on the advice of the firm's ethics counsel. This reason satisfies the "good cause" standard for attorney withdrawal in light of disciplinary rules which mandate withdrawal (see NY RPC 1.16 [b] and [c]). Indeed, when an attorney believes that continued representation may result in a violation of the disciplinary rules or laws, counsel is obligated to seek withdrawal (see Matter of Blatt, 217 A.D.3d 113 [2d Dept 2023]). After Subin's representation that the request to withdraw was made on the advice of ethics counsel, the court neither sought nor accepted ex parte communication in this application.
The remainder of defendants' papers are essentially requests for discovery of attorney-client communications and other seemingly privileged information. Making affirmative discovery requests in the opposition papers to a motion to be relieved as counsel is procedurally improper for at least two reasons. First, the request is made without the notice ordinarily required by a motion requesting affirmative relief (CPLR 2215; see Fried v Jacob Holding, Inc., 110 A.D.3d 56 [2d Dept 2013]). Second, even if the court were inclined, arguendo, to treat the request as a cross-motion in an exercise of discretion, there is no properly executed discovery instrument for the court to enforce (see CPLR 3102).
Finally, defendants' request is improper insofar as it asks the court to condition Subin's withdrawal on a breach of client confidence and/or of a violation of attorney-client privilege. Rule 1.6 (a) prohibits attorneys from "knowingly [revealing] confidential information to the disadvantage of a client or the for the advantage of the lawyer or a third person" absent 1) the consent of the client; 2) the disclosure is "impliedly authorized to advance the best interest of the client"; or 3) the disclosure is permitted by Rule 1.6 (b). None of the permissions in Rule 1.6 (b) apply here. Defendants make clear in their opposition that the request for Subin's disclosure is to improve their ability to litigate this action (see aff. in opp. at ¶ 14), which means that Subin's disclosure would be "for the advantage of... a third person." Moreover, attorney-client privilege can only be waived by the client and generally survives the termination of the attorney-client relationship-Subin is therefore prohibited from revealing confidential or privileged information without the consent of the client (see CPLR 4503).
Therefore, Subin's OSC to be relieved as counsel is granted upon the individual plaintiffs default. The action is stayed until November 10, 2024, although the stay shall end earlier if plaintiff retains new counsel (Wells Fargo Bank, N.A. v Kurian, 197 A.D.3d 173 [2d Dept 2021]). This determination is made without prejudice to any legitimate discovery rights parties may have in this or any other properly commenced action.
Counsel shall serve this order upon Rolando Penafiel by the same means as the underlying OSC within 10 days of the notice of entry, and upon opposing counsel via NYSCEF.
Conclusion
Subin's OSC to be relieved (Seq. 001) is granted.
This constitutes the decision and order of the court.