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The Rogak Report: 04 Dec 2006 ** Civil Procedure - Withdrawal of Counsel **

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  • Lawrence Rogak
    COURT SETS OUT PROCEDURE FOR ATTORNEYS SEEKING TO WITHDRAW FROM CASE Benefield v City of New York, 2006 NY Slip Op 26482 (Supreme Court, Bronx County) (Victor,
    Message 1 of 1 , Dec 4, 2006

      Benefield v City of New York, 2006 NY Slip Op 26482 (Supreme Court,
      Bronx County) (Victor, J.)

      Plaintiff's counsel sought to withdraw his representation of the
      plaintiff. The motion was denied for the reasons which follow.

      The issue, stated the Court, was, "What notice and due process
      obligations should be imposed upon an attorney seeking to withdraw as
      counsel under CPLR 321(b)(2)?"

      "Under the IAS system in effect today, the court takes a proactive
      approach in moving pending cases toward final disposition. Those
      cases which are not placed on the trial calendar by the filing of a
      note of issue are placed on a CPLR 3216 calendar, at which the court
      itself serves a notice requiring that a note of issue be filed. Cases
      on the trial calendar are scheduled for trial, and not permitted to
      remain pending indefinitely."

      "Because of this court initiative, counsel are compelled to actively
      litigate cases which in the past might have been permitted to
      languish, either for lack of clear merit or for other reasons. In
      addition, as a result of this initiative, this court has recently
      been inundated with motions by counsel to withdraw. In many of these
      cases, counsel is not prepared to actively litigate the case because,
      among other things, counsel has purportedly lost touch with and can
      not locate the client."

      "The plaintiff's bar generally appears not to be aware of its ethical
      obligations with respect to motions to withdraw; and most attorneys
      are not aware of the efforts which must be made to locate a client in
      order to effectuate service of the motion. Thus, it is for the court,
      depending on the circumstances presented by each case, to fashion the
      appropriate method of service and notice to the client in a manner
      which comports with due process."

      "As a guide to the bar, the court makes explicit the procedures it
      has, and will, require in these instances."

      "This motion was brought by order to show cause returnable June 29,
      2006. In support of the application, counsel stated that plaintiff
      has not returned phone calls nor communicated with counsel in over
      two years, following an incident at which 'irreconcilable
      differences' arose between counsel and plaintiff. The exact nature of
      this occurrence is not set forth in the moving papers."

      "The Court directed service of the order to show cause on the
      plaintiff by personal delivery pursuant to CPLR 308(1). On the return
      date of the order to show cause, counsel submitted the affidavit of a
      process server which stated that the plaintiff could not be located
      at the address at which service was attempted (presumably a residence
      address from counsel's file); indeed, a neighbor allegedly stated
      that the plaintiff had moved."

      "Instead of denying the application for failing to abide by its
      service provisions, the Court, at counsel's request, adjourned the
      application to September 7, 2006, to permit counsel to provide the
      court with a supplemental affidavit setting forth all due diligent
      efforts to locate the plaintiff and/or plaintiff's relatives. At that
      time, in accordance with the usual custom and practice of the court,
      the court provided plaintiff with written guidelines as to the
      requirements of a 'due diligence' search of internet and public
      resources. In addition, the court instructed counsel that if, after
      diligent efforts had been made, plaintiff could not be located, an
      alternative means of service (e.g., publication and/or service on a
      close relative) would be permitted.Rather than following the court's
      instructions, counsel affixed a notice of motion to the original
      order to show cause and supporting papers, setting forth September 7,
      2006 as the return date, and without the court's approval, proceeded
      to 'serve' the 'motion' by delivering a copy to a person identified
      as 'Lisa Wyrick,' identified as a 'co-tenant,' at a specified
      address, and by a subsequent mailing to the same address.
      Significantly, there was no affidavit or other submission indicating
      why service was made at the new address, or why it was believed that
      this address constituted plaintiff's residence."

      "The Court accordingly made a record. Counsel stated that Lisa Wyrick
      was identified in the complaint in the action as
      plaintiff's 'girlfriend.' A copy of the complaint was not provided to
      the court, nor did counsel explain why he believed that the plaintiff
      had been or was co-habitating with Ms. Wyrick in 2006, although he
      insisted that such was the case. Counsel, evidently frustrated at the
      Court's line of questioning, stated, 'If your Honor tells me to have
      the process server question Miss Wyrick the next time he is at the
      door and put that in his affidavit, I will do that. My only problem
      here is that I now have this client, who is not communicating with
      me, that I want to help, that I believe in this case, that I can't
      reach him.'"

      "An attorney may withdraw from representing a client on good and
      sufficient cause, upon reasonable notice to the client (see, Williams
      v. Lewis, 685 NYS2d 382, 258 AD2d 974 [4th Dept. 1999]; LeMin v.
      Central Suffolk Hospital, 565 NYS2d 190, 169 AD2d 821 [2d Dept.
      1991]; Bucaro v. Keegan, 483 NYS2d 564, 126 Misc 2d 590 [Sup. Ct.,
      New York Co. 1984]; Matter of Dunn, 205 NY 398, 98 N.E. 914 [1912])."

      "An attorney does not have an unfettered right to unilaterally
      withdraw. Good cause is required, to be determined, ultimately, by
      the Court. As was recently stated in Countryman v. Watertown Hous.
      Auth., 820 NYS2d 757, 2006 NY Misc. LEXIS 2254, 2006 NY Slip Op 26337
      (App. Term, First Department, 2006): 'Generally, there are three
      primary reasons allowing withdrawal of an attorney from a case:
      failure of a party to remain in contact with counsel; deterioration
      of the attorney/client relationship; non-payment of legal fees (see
      Tartaglione v. Tiffany, 280 AD2d 543, 720 NYS2d 404; Lake v. M.P.C.
      Trucking, Inc., 279 AD2d 813, 718 NYS2d 903; Galvano v Galvano, 193
      AD2d 779, 598 NYS2d 268). The submission does not set forth any of
      the foregoing reasons. The intent of the rules requiring permission
      to withdraw is grounded on some client conduct that substantially
      interferes with the attorney-client relationship (see Kiernan v
      Kiernan 233 AD2d 867, 649 NYS2d 612 [4th Dept 1996]). No such showing
      has been made here. 'The Court holds that the fact that a lawsuit is
      of questionable liability, limited damages, and a likely unfavorable
      trial result is not the type of impairment of the attorney-client
      relationship that permits withdrawal of counsel. Once the
      representation is undertaken by the attorney, the fact that the case
      does not settle is not a valid ground to permit withdrawal. There are
      even cases where such permission has been denied even when the client
      has consented to discontinuance of the action (see In Re Seventh
      District Asbestos Litigation 1 Misc 3d 279, 764 NYS2d 168), although
      that issue is not addressed here.'"

      "Conflicts of interest, and a failure to communicate with the
      attorney, may be added to the list of reasons which may justify
      counsel' withdrawal. A client who fails to respond to communications
      from his or her attorney may render continued representation
      unreasonably difficult. (See Bok v. Werner, 9 AD3d 318, 780 NYS2d
      332, 2004 NY App. Div. LEXIS 9937 [1st Dep't 2004]; see also,
      Tartaglione v. Tiffany, 280 AD2d 543, 720 NYS2d 404 [2d Dep't

      "This court frequently encounters cases in which a client has
      allegedly failed to communicate with counsel, and in which counsel
      has simply lost track of the whereabouts of the client. In such
      cases, the court insists on diligent efforts to locate the client.
      All too frequently, protestations by the attorney that the client can
      not be located are proved incorrect after the insistence of the court
      that a thorough and diligent search be undertaken. Often, when the
      client is located and proper notice is given, the clients appear, and
      the motion is either withdrawn, or the client given an opportunity to
      obtain new counsel. This procedure accords with CPLR 321 (b) (2),
      which states:An attorney of record may withdraw or be changed by
      order of the court in which the action is pending, upon motion on
      such notice to the client of the withdrawing attorney, to the
      attorneys of all other parties in the action or, if a party appears
      without an attorney, to the party, and to any other person, as the
      court may direct."

      "In promulgating CPLR 321 (b) (2), the Legislature followed the 1979
      Recommendations of the Advisory Committee on Civil Procedure. The
      Advisory Counsel believed that the requisite notice was best shaped
      by the court based on the particular circumstances: 'The present
      subdivision (b) of CPLR 321 provides for a change of attorney by the
      filing of an appropriate consent, and, when consent is lacking, by
      court order. Some courts have not permitted a mere motion to be used
      to obtain the order, but have required that a formal special
      proceeding be brought under Article 4 of the CPLR. In either instance
      the question of whom to notify of the motion or special proceeding is
      not addressed. The Committee proposes to divide the present
      subdivision (b) into two paragraphs. The first, paragraph 1, would
      cover the change of attorney by consent and would make mere
      linguistic adjustments to set the provision up as a separate

      "The gist of the Committee's proposal is in the addition of paragraph
      2. This one addresses the change of attorney requiring court
      permission because consent has not been forthcoming. The provision
      sets forth that the procedure for the change shall be a mere motion,
      thus clarifying that a special proceeding need not be brought for
      this purpose. And rather than attempt to set forth whom to notify,
      the amendment leaves it to the court to determine. It does this by
      requiring the motion to be 'on such notice to such persons as the
      court may direct', i.e., it contemplates the procedure of an order to
      show cause. This will enable the court to determine, on a case by
      case basis, who shall be notified, and how. There may be many
      parties, and the action may have been quiescent for a time. Leaving
      it to the court to determine whom to notify, and by what method,
      permits the factors applicable to the individual case to be weighed.
      One obvious person to notify is of course the client, and it is
      contemplated that the client will be among those notified. The method
      of notification, however, in respect of the client as well as all
      others who are to receive notice, is left to the court. The person
      making the motion would always do well to advise the court, in
      affidavits accompanying the application for the order to show cause,
      of all factors pertaining to the giving of notice."

      "As noted earlier, in cases in which it is alleged that the client
      cannot be located, it is the court's practice to supply counsel who
      seeks to withdraw, with the written materials which provide some
      guidelines as to the efforts which counsel should make to locate the
      client. All too frequently, when an order to show cause is
      returnable, withdrawing counsel are surprised to discover that the
      court insists on some mechanism of service designed to give actual
      notice to the client, or an explication as to why such service could
      not and can not be effectuated. Counsel's efforts frequently consist
      of nothing more that addressing a letter to the address contained in
      counsel's file and/or a few phone calls to the telephone number
      contained in the file, each of which counsel knows is no longer

      "Of course, as noted above, a client has an obligation to communicate
      with counsel, and a client who refuses to do so provides a just basis
      for counsel to seek to withdraw. The reality is that clients
      frequently move without notifying counsel. Some degree of
      responsibility must be placed on counsel to keep the lines of
      communication open; and to initially obtain information (such a the
      names and addresses of relatives) so that some form of contact is
      always available. Often, counsel has not written to or called the
      client for a number of years, before suddenly moving to withdraw."

      "A diligent search begins with the information counsel has gathered
      and placed in the file. One would expect that counsel would obtain a
      social security number, employment information, and at least some
      alternate phone numbers or alternate contact persons. The court is
      frequently surprised to discover that counsel has failed to gather
      any information other than a single address and a single phone

      "The sources set forth in the materials annexed in the Appendix are
      numerous. At the least, public sources such as the post office, Board
      of Elections, and Department of Motor Vehicles should be contacted.
      If the client's Social Security number is known, a formal request may
      be made to the Social Security Administration, upon payment of the
      requisite fee, to have a letter forwarded to the missing person....
      Resources to locate missing persons are available on the Internet."

      "The foregoing avenues must be explored before the court will accept
      counsel's statement the client can not be located. The court often
      finds that, indeed, when a diligent search is conducted, the client
      is in fact located. When diligent efforts have been made and neither
      the client, his relatives or a contact person can be identified, the
      court may consider publication as a means of service of the last
      resort, which generally will consist of the publication of a notice
      in a local newspaper once in each of two successive weeks."

      "This Court does not dispute that the failure of the client to
      maintain contact with the attorney may provide a basis for counsel to
      withdraw, or that service may be made at the last known address
      together with service upon a relative. The Court is reluctant to
      authorize service merely at an address where the client obviously no
      longer resides. This method provides no notice, has no chance of
      alerting the client to the situation, and deprives the client of an
      opportunity to contest the withdrawal or to obtain new counsel to
      preserve his or her rights. This court will not authorize spurious
      or 'sham' service."

      "In any event, in the circumstance in which the client can not be
      located, a showing of some degree of diligence to uncover the
      whereabouts of the client is required. In view of the fact that the
      case will enter a sort of limbo upon counsel's withdrawal, and that
      ultimately the case will be dismissed if not prosecuted, serious and
      substantial efforts to notify the client of the application must be

      "In the present case, this Court has no basis upon which to conclude
      that the plaintiff is residing with Lisa Wyrick, and that service
      upon plaintiff at her address is calculated to give him notice of the
      proceeding. Counsel has not provided any affidavit by any person
      detailing the efforts made to locate the plaintiff, or the basis for
      counsel's belief that the plaintiff is residing with Lisa Wyrick.
      Counsel's unsupported statements at the hearing on the record that
      he 'knows' the client is residing with Lisa Wyrick may ultimately
      prove correct. The court nevertheless has no grounds for accepting
      counsel's representations as bona fide."

      "This court also notes that some dispute appears to have arisen
      between counsel and the plaintiff. If this is so, then a valid basis
      may exist on the merits in support of the application to withdraw.
      The Court notes, however, that the alleged dispute arose some two
      years ago, and that had this application been made sooner in time,
      presumably the whereabouts of the plaintiff would still be known to
      counsel; and plaintiff would have an opportunity to oppose the
      application and/or obtain new counsel."

      "It is counsel's burden and obligation to set forth in a reliable
      form the efforts made to locate the client, and the basis for any
      belief as to the residence of the client. The problem in this
      particular case (apart form ignoring the court's directions and
      instructions) is that counsel never prepared an affidavit explaining
      the basis of his alleged knowledge that the plaintiff was residing
      with a paramour, and never provided details as to the efforts made to
      locate the client. Indeed, counsel's attitude (which bordered on
      contemptuous) was that court was imposing undue requirements on
      counsel, and counsel seemed unwilling to justify the manner of notice
      which counsel had employed, demanding that the court spell out with
      exactness the exact manner of service which would be sufficient.
      Clearly it is counsel's obligation, not the court's, to take the
      necessary steps to (1) locate the client, or (2) explain the efforts
      undertaken in an attempt to locate the client. Counsel here did
      neither. The court can not possibly fashion a method of service as is
      required by CPLR 321 (b) (2) unless counsel in the first instance
      provides the results of counsel's investigation as to, inter alia,
      the present location of the client, or of his or her known relatives,
      employers, and others who may be able to contact the plaintiff."

      "The motion is denied with leave to renew. This constitutes the
      decision and order of the Court."


      Suggested Methodology for Conducting a Search for a Missing Person(s)

      Counsel should describe the efforts made to locate missing persons in
      an affidavit by the person(s) conducting the search, setting forth
      with specificity the actions taken and persons and agencies
      contacted. The following sources may be checked for information in a
      particular case, depending on the facts presented:

      Friends, neighbors;
      Inquiry to present occupants of former addresses;
      Post Office (for forwarding address);
      Churches, other community groups;
      Department of Motor Vehicles;
      Surrogate's Court records;
      Social Security Administration (see attached instructions);
      Obituary notices, death certificates;
      Professional or trade organizations;
      Internet searches;
      Board of Elections records;
      Corrections Department: Federal, State, and City;
      N.Y.C. Department of Probation / N.Y.S. Division of Parole;
      State and local Department of Social Services;
      N.Y.C. Medical Examiner;
      Department of Defense Website, which provides addresses to contact in
      the different branches of the military

      Letter Forwarding Social Security Administration

      The Social Security Administration will attempt to forward a letter
      to a missing person under circumstances involving a matter of great
      importance, such as death or serious illness in the missing person's
      immediate family. The circumstances must concern a matter about which
      the missing person is unaware and would undoubtedly want to be
      informed. Generally, when a son, daughter, brother, sister, or parent
      wishes contact, the SSA will write to the missing person, rather than
      forwarding a letter from the relative.

      There is no charge for forwarding letters that have a humanitarian
      purpose. However, a fee of $25.00 is charged when the letter is to
      inform the missing person of money or property due him or her. The
      fee is non-refundable. The fee should be paid by check and made
      payable to the Social Security Administration.

      A representative from SSA must read the letter to ensure that it
      contains nothing that could prove embarrassing to the missing person
      if read by a third party. SSA does not believe it would be proper to
      open a sealed envelope, therefore, a letter that is sent to the SSA
      for forwarding should be in a plain, unsealed, unstamped envelope
      showing only the missing person's name. Nothing of value [*9]should
      be enclosed in the envelope.

      It is necessary to provide the missing person's social security
      number or identifying information in order for SSA to locate an
      address in the SSA records. Usually, SSA will forward the letter in
      care of the employer who most recently reported earnings for the
      missing person, as SSA will only have the home address if the person
      is receiving Social Security benefits. SSA cannot assure that the
      letter will be delivered nor can SSA guarantee a reply. SSA is also
      unable to send a second letter.

      A request to have a letter forwarded by the Social Security
      Administration to a missing person should be sent to:

      Social Security Administration Letter Forwarding P.O. Box 33022
      Baltimore, MD 21290-3002

      Larry Rogak
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