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MISEK-FALKOFF v. IBM

August 25, 1993

LINDA D. MISEK-FALKOFF and ADIN FALKOFF, Plaintiffs,
v.
INTERNATIONAL BUSINESS MACHINES CORPORATION, Defendant,



The opinion of the court was delivered by: VINCENT L. BRODERICK

 VINCENT L. BRODERICK, U.S.D.J.

 I

 This suit, initiated in 1989, alleges handicap discrimination by an employer under the Rehabilitation Act, 29 USC §§ 701 et seq., and is possibly subject to the Americans With Disabilities Act, 42 USC §§ 12101 et seq.

 A motion to withdraw as counsel was filed by plaintiffs' attorney (the "moving attorney"). Before the motion was fully submitted, the plaintiffs retained new counsel. The moving attorney and plaintiff executed a stipulation substituting new counsel for the moving attorney, which stipulation was "so ordered" by me on August 2, 1993.

 The pending motion presents questions as to procedures applicable with respect to withdrawing counsel in federal question cases where a critical point in the pretrial phase of the litigation has been reached and where federal fee-shifting statutes are involved.

 The moving attorney seeks a charging lien against any proceeds arising from judgment or settlement in the action, and a retaining lien on the clients' files. *fn1" He also requests reconsideration of that portion of an order dated June 9, 1993 which provided that determination of his attorney's fees would be postponed until resolution of the case; he seeks a summary determination of fees and expenses on an expedited basis.

 I deny the application for a retaining lien. The moving attorney is directed promptly to transfer the files in this case to plaintiffs' present counsel. I do not require that plaintiffs post a bond, for the reasons discussed in part IV below.

 In light of the delay resulting from the withdrawal and substitution of counsel, plaintiffs' sur-reply with respect to the summary judgment motion is to be filed by October 22, 1993. *fn3"

 II

 The complaint in this case was filed in September 1989 with the moving attorney as plaintiffs' counsel of record. Some six months later, plaintiffs consented to substitution as their counsel of an attorney who left the moving attorney's law firm. The second counsel was relieved as plaintiffs' counsel 13 months later by consent, and the moving attorney once again was retained by plaintiffs. He was permitted to withdraw upon my approval of the most recent stipulated substitution of counsel earlier this month.

 A dispute over fees and disbursements arose between plaintiffs and their second attorney at the time she was relieved in early April 1991. I referred that controversy to a special master. The litigation at that time was in the early stages of discovery and the parties were engaged in efforts to achieve settlement of the case. On July 23, 1991 I approved a resolution of the controversy between plaintiffs and their second attorney.

 Following payment of the agreed-upon sum to the second attorney, which was far less than the amount now asserted to be due by the moving attorney, the second attorney turned the file over to the moving attorney. *fn4" Plaintiffs' new counsel, who is also representing the plaintiffs in pending state litigation with respect to which a trial has been scheduled in early October, has indicated that materials ...


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