Opinion
No. 98 Civ. 7414 (AJP).
April 18, 2000.
OPINION AND ORDER
By motion dated April 5, 2000 (Dkt. No. 36), plaintiffs' counsel seeks to withdraw based on his client's failure to cooperate and communicate with him and failure to pay his fees. For the reasons discussed below, the motion is GRANTED
FACTS
Plaintiffs' present counsel, William Apuzzo, is plaintiffs' second attorney in this matter. (See Apuzzo 4/5/00 Aff. ¶ 1.) Prior counsel has an unsatisfied retaining lien on the file, which has hampered present counsel's ability to prepare plaintiffs' case for trial. (See id. ¶¶ 3, 5.) Mr. Apuzzo has stated that the attorney-client relationship "has broken down irretrievably" and he is "now at a point where it is impossible for [him] to continue to represent the plaintiffs." (Id. ¶ 4.) Counsel elaborated that "plaintiffs' principal, an Italian resident and domiciliary, has only sporadically responded to [counsel's] most recent letters, faxes, and telephone calls," and he has not heard from plaintiffs since March 3, 2000, despite the fact that discovery is closed and the case is ready for trial (or other disposition), or settlement (and plaintiffs' have not instructed counsel as to a response to defendant's settlement offer). (Id. ¶¶ 5-6.)
In addition to plaintiffs' failure to cooperate with and respond to plaintiffs' counsel's communications, plaintiffs have not paid counsel's monthly bills since December 1999. (See id. ¶ 8.)
ANALYSIS
Withdrawal of counsel is governed by S.D.N.Y. Local Civil Rule 1.4, which provides:
An attorney who has appeared as attorney of record for a party may be relieved or displaced only by order of the court and may not withdraw from a case without leave of the court granted by order. Such an order may be granted only upon a showing by affidavit or otherwise of satisfactory reasons for withdrawal or displacement and the posture of the case, including its position, if any, on the calendar.
As this Court has previously ruled: "`It is well-settled that non-payment of fees is a valid basis for the Court to grant counsel's motion to withdraw, especially when the motion is not opposed.'" Fischer v. Biman Bangladesh Airlines, 96 Civ. 3120, 1997 WL 411446 at *1 (S.D.N.Y. July 18, 1997) (Peck, M.J.) (quoting Seisay v. Compagnie Nationale Air France, 95 Civ. 7660, 1996 WL 38844 at *1 (S.D.N.Y. Feb. 1, 1996) (Peck, M.J.)), cases cited therein); accord, e.g., Hallmark Capital Corp. v. Red Rose Collection, Inc., 96 Civ. 2839, 1997 WL 661146 at *2 (S.D.N.Y. Oct. 21, 1997) (Peck, M.J.).
See also, e.g., Cosgrove v. Federal Home Loan Bank, 90 Civ. 6455, 92 Civ. 4225, 1995 WL 600565 at *2 (S.D.N.Y. Oct. 12, 1995) (Peck, M.J.).
"`The courts also have ruled that lack of cooperation by a client with its counsel, including lack of communication, is a sufficient reason for allowing withdrawal.'" Hallmark Capital Corp. v. Red Rose Collection, Inc., 1997 WL 661146 at *2 (quoting Fischer v. Biman Bangladesh Airlines, 1997 WL 411446 at *2), cases cited therein; see also, e.g., SEC v. Towers Fin. Corp., 93 Civ. 744, 1996 WL 288176 at *3 (S.D.N.Y. May 31, 1996) (Peck, M.J.). Moreover, "[a]s this Court previously has held, `it is clear that the existence of an irreconcilable conflict between attorney and client is a proper basis for the attorney to cease representing his client.'" Cosgrove v. Federal Home Loan Bank, 1995 WL 600565 at *2; accord, e.g., Hallmark Capital Corp. v. Red Rose Collection, Inc., 1997 WL 661146 at *2 ( cases cited therein); SEC v. Towers, 1996 WL 288176 at *3.
Here, although only one ground need be shown, all three grounds for counsel's withdrawal exist. Plaintiffs have not paid counsel's bills since December 1999. (Apuzzo Aff. ¶ 8.) Plaintiffs have not communicated with, counsel nor responded to his communications at this crucial juncture in the case. (Id. ¶¶ 5-6.) Moreover, in counsel's view, the relationship has broken down irretrievably. (Id. ¶ 4.) Finally, although plaintiffs were served with a copy of counsel's withdrawal motion, they did not respond. Accordingly, counsel has shown "satisfactory reasons for withdrawal" as required by S.D.N.Y. Local Civil Rule 1.4, and the motion is GRANTED.
Plaintiffs' counsel is required to serve a copy of this Order on plaintiffs by fax, and to file an affidavit of such service with the Clerk of Court (with a courtesy copy to my chambers) by April 19, 2000. Plaintiffs are corporations, and corporations can only appear by counsel. See, e.g., Iannaccone v. Law, 142 F.3d 553, 558 (2d Cir. 1995); Pridgen v. Andresen, 113 F.3d 391, 393 (2d Cir. 1997); Sanchez v. Mander, 92 Civ. 6878, 1995 WL 702377 at *1 (S.D.N.Y. Nov. 28, 1995) (citing cases). Plaintiffs are to appear by new counsel by May 17, 2000; if plaintiffs do not do so, the case will be dismissed for failure to prosecute and failure to obey Court orders. See, e.g., Fischer v. Biman Bangladesh Airlines, 1997 WL 411446 at *2 ( cases cited therein).
CONCLUSION
For the reasons set forth above, plaintiffs' counsel's withdrawal motion is GRANTED, and plaintiffs are to appear by new counsel by May 17, 2000 or the case will be dismissed.
SO ORDERED.
Copies by fax to:
William J. Apuzzo, Esq. Jamie B.W. Stecher, Esq.