United States District Court, D. Massachusetts
MEMORANDUM & ORDER
Talwani United States District Judge
March 7, 2017, the court granted in part and denied in part
Plaintiff Phantom Ventures LLC's (“Phantom
Ventures”) Motion for Partial Summary Judgment
[#22], granted in part and denied in part Defendants'
Cross-Motion for Summary Judgment [#29], and
remanded the matter to the City of Chelsea Zoning Board of
Appeals (“Zoning Board”) for further
consideration of Plaintiff's permit application. Mem.
& Order [#56]. On March 8, 2017, this court ordered
Plaintiff's counsel to show cause why their Motion
for Leave to Withdraw Its Appearance As Counsel For
Plaintiff (“Mot. Leave Withdraw”) [#51]
should not be denied as moot. Order Show Cause [#59].
Plaintiff's counsel filed their Memorandum in
Response to Order to Show Cause (“Mem.
Response”) [#60] on March 15, 2017.
Motion for Leave to Withdraw
Rule of Professional Conduct 1.16(b)(7) and Local Rule
83.5.2(c)(2) permit withdrawal of an attorney's
appearance upon a showing of “good cause.”
Plaintiff's counsel articulates several reasons for their
request to withdraw their appearance. Phantom Ventures,
through its manager Konstantinos Georgopoulos, opposes the
motion to withdraw only “on the grounds that it may
prejudice, or negatively affect, our case” and because
Phantom Ventures “is keen to see this case through to
verdict.” Opp'n Mot. Leave Withdraw [#53].
counsel asserts that their withdrawal is allowed under
Massachusetts Rules of Professional Conduct 1.16(b)(5) and
(b)(6) because Phantom Ventures “has failed to fulfill
its payment obligations, ” Plaintiff's counsel
“warned Phantom [Ventures]'s managers of a motion
to withdraw if they did not hire replacement counsel, ”
and “will result in an unreasonable financial
burden.” Mot. Leave Withdraw 5-6. Counsel assert,
without opposition, that they have been forced “to work
without payment for eight months, without any commitment to
pay bills that have been outstanding for even longer, and
without any commitment to pay future legal bills.”
Id. at 6.
client's failure to pay attorney's fees may support
the withdrawal of counsel, although withdrawal “will
not necessarily be appropriate in all . . .
circumstances.” Hammond v. T.J. Litle &
Co., 809 F.Supp. 156, 161 (D. Mass. 1992). A court may
also consider “(1) the amount of work performed and
paid for in comparison with the work remaining, (2) fees paid
to date, and (3) the likely effect on the client.”
Id. Here, Plaintiff's counsel has worked without
pay for eight months, prevailing in substantial part on
Plaintiff's claim, and as of December 31, 2016, was owed
over $46, 000 in legal fees. See Aff. Thomas S.
Fitzpatrick Supp. Mot. Leave Withdraw (“Fitzpatrick
Aff.”) ¶ 12 [#52]. Although Plaintiff may prefer
retaining current counsel who are familiar with the case, the
court finds neither a basis to impose a further obligation
for counsel to represent Plaintiff without payment nor any
prejudice in allowing the withdrawal at this time, where
there are no pending motions, no dispute as to the terms of
the engagement letter, and no disagreement that the bill
counsel also asserts that their withdrawal is allowed under
Massachusetts Rule of Professional Conduct 1.16(b)(6) because
representation “has been rendered unnecessarily
difficult” by Phantom Ventures' conduct. Mot. Leave
Withdraw 5 [#51]. Plaintiff's counsel states that Phantom
Ventures “is extremely hostile to, and critical
of” counsel's firm, causing “an irreversible
rupture of the attorney-client relationship, ” a
rupture which Phantom Ventures does not attempt to dispute.
Id. at 4-5. Moreover, Plaintiff's counsel
advised Phantom Ventures' managers that they would be
forced to move to withdraw more than five months ago.
Fitzpatrick Aff. ¶ 7 [#52]. Under these circumstances as
well, Plaintiff's counsel has demonstrated good cause for
their withdrawal of their appearance.
the Motion for Leave to Withdraw Its Appearance As
Counsel For Plaintiff [#51] is ALLOWED.
Ventures cannot proceed in this court without counsel.
See Local Rule 83.5.5(c). Plaintiff's counsel,
in explaining why the Motion for Leave to Withdraw Its
Appearance As Counsel For Plaintiff [#51] is not moot,
stated various matters that may still need to be addressed.
Mem. Response 3-5 [#60]. None of those matters is currently
pending before the court, as the case has been remanded to
the Zoning Board for further consideration of Phantom
Ventures' permit application. Mem. & Order [#56].
Accordingly, the court will administratively close the case
while the Zoning Board undertakes this further consideration
and Phantom Ventures obtains new counsel. This case closing
is without prejudice to either side moving to reopen the case
for further proceedings through their or its counsel of
foregoing reasons, Plaintiff's counsel's Motion
for Leave to Withdraw ItsAppearance As Counsel For
Plaintiff [#51] is ALLOWED. Plaintiff's counsel is
directed to serve a copy of this Memorandum &
Order on Phantom Ventures and to file a certificate of
service with the court. Upon ...