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R.M. Development and Construction, LLC v. Principal IX Associates

August 27, 2010

R.M. DEVELOPMENT AND CONSTRUCTION, LLC, PLAINTIFF,
v.
PRINCIPAL IX ASSOCIATES, LLP, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gold, S., U.S.M.J.

MEMORANDUM AND ORDER

Introduction

Plaintiff, R.M. Development and Construction, LLC, brings this action to recover $324,500 it alleges is due and owing for work it performed on a construction project. Compl. ¶ 14, Docket Entry 1. By motion filed August 11, 2010, Cohen and Krassner, plaintiff's attorneys, seek to be relieved. Docket Entry 38. Plaintiff's owner and principal, Enrique Castillo, opposes the motion and requests appointment of counsel or a stay if Cohen and Krassner's motion is granted. For the reasons and with the qualifications set forth below, Cohen and Krassner's motion to be relieved is granted, plaintiff's motion seeking appointment of counsel is denied, and a limited stay is granted.

Discussion

A. Counsel's Motion to be Relieved

An attorney who has appeared in an action may be relieved only upon a showing of satisfactory reasons for withdrawal. Local Civil Rule 1.4. Mark Krassner, a member of Cohen and Krassner, has submitted an affidavit in support of his law firm's motion. Docket Entry 38-1.

In his affidavit, Krassner states that Mr. Castillo has been convicted of felony charges and sentenced to serve three to nine years in prison. Krassner then asserts two grounds in support of his firm's motion to be relieved. First, Krassner contends that his firm should be relieved because its attorneys lack experience handling criminal matters. Second, Krassner states that plaintiff lacks sufficient funds to pay attorney's fees and expenses.

In his opposition to the motion, Mr. Castillo states that he has already paid Cohen and Krassner a retainer of $5,000 and that he seeks to settle R.M. Development's claims. Castillo does not contest Krassner's assertion that R.M. Development lacks the funds to pay the fees and expenses required to litigate its claim, and acknowledges that he is himself indigent. Docket Entry 41.

The first ground advanced by Cohen and Krassner -- lack of criminal law experience -- is not a satisfactory reason for withdrawal. This case does not raise any complex questions of criminal law, and there is no reason why an attorney otherwise competent to bring the claims asserted in this case, even one without criminal law experience, could not capably represent plaintiff in this action.

Inability to pay counsel fees, on the other hand, generally does constitute a sufficient basis on which to grant a motion to be relieved. See, e.g., Melnick v. Press, 2009 WL 2824586, at * 3 (E.D.N.Y. Aug. 28, 2009) (citing cases). Although some cases have held that an inability to pay counsel fees, without more, is not a sufficient basis for withdrawal, those cases have generally involved criminal defense attorneys who could be compensated pursuant to the Criminal Justice Act, 18 U.S.C. § 3006A, see, e.g. United States v. Stein, 488 F.Supp.2d 370 (S.D.N.Y. 2007), or cases in which counsel knew of a client's inability to pay before undertaking the representation at issue, S.E.C. v. Intracom Corp., 2007 WL 1593208 (E.D.N.Y. June 1, 2007). Neither circumstance applies here. Accordingly, counsel's motion is granted, subject to the three conditions set forth below.

First, Mr. Castillo has indicated his desire to settle plaintiff's claims. Plaintiff's counsel shall make a good faith effort to settle plaintiff's claims over the next 30 days. Counsel shall submit a report on the status of settlement negotiations by October 1, 2010. If the case has not been settled by that date, counsel will be relieved.

Second, with respect to Mr. Castillo's assertion that he has paid a retainer of $5,000, counsel shall submit an invoice to Mr. Castillo by October 1, 2010, accounting for the retainer. If the entire retainer has not been exhausted, the balance shall be returned to plaintiff.

Finally, counsel will be expected to cooperate with any successor attorney retained by plaintiff. This cooperation will include providing successor counsel with access to any materials in Cohen and ...


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