The opinion of the court was delivered by: Kristin Booth Glen, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
This motion to withdraw as counsel raises serious and important issues about the obligations of the court and of counsel when it appears that a client who is a defendant in a civil action lacks capacity to assist or participate in the defense of that action.
Movant represents Diane Wells ("Diane"), defendant in an action initially brought in Supreme Court, New York County by her now-deceased mother, Joyce Cheney ("Joyce"). Following Joyce's death, her son, and Diane's brother, James Cheney ("James"), preliminary executor of Joyce's estate, was substituted as plaintiff. While there are eleven separate causes of action,*fn1 the common factual background involves claims that, while living with Joyce in Joyce's apartment, Diane engaged in a long course of harassment, threats and mistreatment of her mother that ended only when Diane was arrested and convicted for an assault on Joyce resulting in the latter's broken arm. Subsequent criminal charges against Diane, for allegedly soliciting her brother's murder, were dismissed.
After various proceedings in Supreme Court, during which Diane was first represented by Raoul Felder,*fn2 and then by Kramer & Dunleavy,*fn3 the case was transferred to this court by order dated August 23, 2007.*fn4
Since that time, as the case moved toward trial, Diane has gone through four separate sets of counsel. She was initially represented by the Law Offices of Gerald Shargel and Wachtel & Masyr, by Howard Elman; on January 15, 2008 and February 25, 2008, Judd Burstein was substituted for Elman and Shargel, respectively. Burstein moved to be relieved in March, 2008, stating, inter alia, that Diane has made it "unreasonably difficult" for him "to carry out employment effectively," citing DR 2-110(c)(4), and that "it is almost impossible to adequately describe the nightmare of representing Ms. Wells." Burstein noted, "It is clear that Ms. Wells is a severely emotionally damaged person." Describing a conference call about discovery matters, and an upcoming court date, Burstein reports that Diane "explained to [a court attorney/referee] that she was psychologically incapable of appearing in court" on the appointed date. After a conference with the court, at which he further elucidated the difficulties which led to his motion, Burstein was permitted to withdraw, and Diane was given a continuance to obtain new counsel. As of that date, the trial was scheduled to begin on May 18, 2008.
In April, 2008, Diane retained Joshua R. Katz,*fn5 an attorney who had previously been employed at the Felder firm. The retainer agreement anticipated that Katz would secure the services of trial counsel, and in May 2008, after interviewing several firms, he was successful in matching Ms. Wells with the law firm of Castro & Karten. Almost literally on the eve of trial, that firm sought an adjournment which was vigorously opposed by James's counsel. Castro & Karten assured the court that, unlike previous counsel, they would be able to effectively deal with Diane and be ready for trial in August, 2008. Citing Diane's psychiatric problems and communications with her treating psychiatrist, Dr. Stuart Serdam, new counsel noted his prescription of new medications, and Diane's promise that she would have live-in help to ensure that she took those medications which would allow her to relate effectively and appropriately to counsel in the course of trial preparation and trial.*fn6
The motion was granted, and the trial adjourned to August 4, 2008, marked final against defendant. On July 18, Castro & Karten moved for leave to withdraw on the grounds, inter alia, that "Wells has engaged in such conduct which renders it unreasonably difficult for Castro & Karten to carry out its employment effectively" pursuant to DR 2-110 of the Disciplinary Rules of the Code of Professional Responsibility. In support of their motion, they supplied an extensive in camera affidavit detailing issues and difficulties in their representation of Diane.*fn7
Shortly thereafter, Joshua Katz also moved to withdraw on several grounds, including "a breakdown in communication such that [Diane] refuse[d] to accept [his] advice and counsel" and Diane's "verbally abusive behavior." In addition, because of Castro & Karten's motion, Katz now feared that he would be required to serve as trial counsel, a role for which, he claimed, he was neither suited nor retained.*fn8 On July 28, the return date of both motions, after considerable colloquy, Castro & Karten's motion was granted and Katz's held in abeyance, as the latter neither alleged nor provided information (in camera or otherwise) that the attorney/client relationship had so deteriorated that he could no longer represent Diane consistent with his ethical responsibilities.*fn9 Once again the trial date was adjourned, this time to October 22nd, and again it was marked final against Diane.
Thereafter, in August 2008, Diane filed a consent to change attorney and notice of appearance from Stephanie E. Kupferman of Kupferman & Kupferman. Counsel for James then moved to require Katz to remain as counsel because "[g]iven the unique and troubling history here - - - where the defendant has cycled through 13 sets of attorneys - - - Katz, the only relative constant, should be required to stay in the case, to avoid any future problems and to ensure availability of trial counsel on October 22."
On September 5, with Ms. Kupferman present, confidently stating her willingness and ability to represent Diane at trial, that motion was denied,*fn10 leaving Kupferman & Kupferman as the sole counsel.
Even as all these changes of counsel were occurring, there was a pre-trial conference, and numerous in limine motions were made and decided.*fn11 Various issues regarding Diane's witness list (containing 29 witness names, which were described as required by the court's pretrial order, and 45 names, lacking the required description as to the substance and relevance of their expected testimony) and possible medical expert(s) were still pending; Kupferman was directed to parse and amplify the witness list, settle on a medical expert and supply the appropriate summary of expected testimony, and certify that all discovery demands had been complied with.*fn12
Kupferman now moves for leave to withdraw "on the ground that a substantial conflict exists between the Kupferman firm and Ms. Wells precluding their continued representation of her in this matter." She submits two in camera affidavits*fn13 setting forth with more particularly the grounds upon which she believes that, as she stated in open court, continued representation would cause her to violate her ethical obligations under New York's Code of Professional Responsibility ("the Code"). Although served with the motion, Diane did not appear on the return date; the motion was marked "submitted" and all counsel*fn14 were directed to appear for a previously scheduled conference on October 7.*fn15 Kupferman was also directed to again notify Diane of that conference, and to convey the court's direction that she attend.
The court met with Diane, Kupferman and Novick for more than an hour and conversed extensively with Diane about the extremely difficult situation in which she had once again placed herself. She was scheduled, in two weeks, for a trial marked final against her; she had no counsel willing to represent her; the trial would involve complicated evidentiary issues far beyond the command of any non-lawyer; and, if she lost the trial, she could potentially lose both her home and more than $3.8 million. During that conversation, as had previously been detailed in various attorneys' in camera affidavits, and as the court observed at prior in court appearances,*fn16 it ...