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YOUNG AMERICA MERCHANDISE CORP. v. TOP QUALITY PRODUCTS

United States District Court, S.D. New York


April 5, 2004.

YOUNG AMERICA MERCHANDISE CORPORATION and CITY MERCHANDISE, INC., Plaintiffs -against- TOP QUALITY PRODUCTS, INC., Defendant

The opinion of the court was delivered by: CONSTANCE MOTLEY, Senior District Judge

MEMORANDUM OPINION AND ORDER

The court is in receipt of defense counsel's application to withdraw as legal counsel and defendant corporation's signed consent thereto, dated March 15, 2004. Defense counsel explains his withdrawal as being initiated by Wendy Wu, Manager of Top Quality Products, Inc., who communicated defendant's dissatisfaction with his representation and communicated its desire to terminate his services. Defendant has not identified replacement counsel. The court is also in receipt of a letter from plaintiffs, dated March 30, 2004, in which plaintiff's communicated their concern about the proposed withdrawal in light of the pending April 16, 2004 contempt hearing relating to defendant's failure to turn over discovery items.

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.
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. Promotica of America, Inc. v. Johnson Grossfield, Inc., 2000 WL 424184, at 1 (S.D.N.Y. Apr. 18, 2000) (citations and internal quotations omitted). A client's termination of representation is a clear expression of an irreconcilable conflict. Further, "[w]hile Local Rule 1.4 requires a court order to withdraw, when counsel has been discharged — and agreed to the termination-the order to withdraw should issue except under the most compelling circumstances." Allstate Ins. Co. v. Nandi, 258 F. Supp.2d 309, 311 (S.D.N.Y., 2003) citing Casper v. Lew Lieberbaum & Company, Inc., 1999 WL 335334, 4 (S.D.N.Y. May 26, 1999) See also Matter of First City Nat'l Bank & Trust Co., 759 F. Supp. 1048, 1051 (S.D. N.Y. 1991) ("Under New York law, a client has an absolute right to change attorneys."). In fact, the New York Code of Professional Responsibility mandates that an attorney withdraw if he or she has been discharged by the client. See 22 NYCRR 1200.15(b)(4).

  While these cases establish defendant Top Quality's right to terminate counsel, defendant is a corporation, 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).

  In light of the requirement that defendant appear only by counsel, and in reconsideration of its earlier imposition of a contempt hearing, it is hereby ORDERED as follows:

The contempt hearing previously scheduled for April 16, 2004 is ADJOURNED.
On or before April 30, 2004, defendant is to notify plaintiffs' counsel and the court of its new counsel.
On or before May 14, 2004, defendant shall turn over all documents that are responsive to plaintiffs' outstanding discovery request for a) a complete list of manufacturers of the fourteen items defendants allegedly acquired and sold in violation of plaintiffs' copyright and trade dress rights, including their names and place of business, and b) a complete list of the purchasers to whom defendants sold the fourteen items at issue. See Order, October 6, 2003. In the event defendant fails to do so, the court will immediately thereafter scheduling a hearing on sanctions pursuant to Fed.R.Civ.P. 11, 16(f) and/or 37.
SO ORDERED.
20040405

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