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04/05/90 ATLANTIC PETROLEUM CORPORATION v. JACKSON

April 5, 1990

ATLANTIC PETROLEUM CORPORATION, APPELLANT
v.
JACKSON OIL COMPANY, APPELLEE



Appeal from the Superior Court of the District of Columbia; Hon. Paul R. Webber, III, Trial Judge

Before Rogers, Chief Judge, Farrell, Associate Judge, and Mack, Senior Judge.

The opinion of the court was delivered by: Rogers

ROGERS, Chief Judge: Atlantic Petroleum Corporation appeals from the dismissal of its lawsuit against Jackson Oil Company for failure to prosecute. Super. Ct. Civ. R. 41 (b). Atlantic Petroleum Corporation (plaintiff) alleges that the trial Judge abused his discretion by (1) granting the motion of plaintiff's trial counsel to withdraw his appearance on the day of trial, (2) concurrently denying plaintiff's request for a continuance to find substitute counsel and (3) dismissing the plaintiff's lawsuit against Jackson Oil Company for failure to prosecute when plaintiff was unable to find substitute counsel overnight who was willing to go to trial the following day. Although the issue is close, we agree that the trial Judge abused his discretion in granting counsel's motion to withdraw and remand to the trial court with instructions to vacate the judgment of dismissal and reschedule the case for trial on the merits.

I.

This appeal arises out of the difficulties encountered by plaintiff's counsel's law firm during its representation of plaintiff corporation. Plaintiff's counsel filed two motions for leave to withdraw appearance as trial counsel prior to the instant motion to withdraw at issue in this appeal; but notwithstanding difficulties, counsel's earlier motions to withdraw from representation were denied. Upon considering the first motion to withdraw filed by plaintiff's counsel, Judge Weisberg denied the motion with the admonition to the president of plaintiff corporation that she could either get new counsel or work with present counsel but, in any event, trial would not be again continued so that plaintiff could obtain new counsel.

The trial of Atlantic Petroleum Corporation's lawsuit against Jackson Oil Company was scheduled to begin on May 13, 1987. Before commencing, Judge Webber conducted a hearing on the motion for leave to withdraw as counsel at issue in the instant appeal and filed by plaintiff's counsel *fn2 about one month before, on April 15, 1987. Counsel's motion alleged that the president of plaintiff corporation had failed, as directed by the trial court, to file an affidavit from her physician concerning her hospitalization which had led to a continuance of an earlier trial date. Counsel also informed Judge Webber that plaintiff's president had been uncooperative in preparing for trial, and further, that she had threatened to sue counsel if she lost her lawsuit against Jackson Oil. Consequently, although conceding that "the groundwork had been done in the case," counsel maintained that the attorney/client relationship had deteriorated to a point which warranted counsel's withdrawal. After hearing testimony concerning specific events where plaintiff's president had failed to return telephone calls from counsel and to show up for pre-trial preparation meetings, *fn3 and also concerning the two previous motions filed by counsel to withdraw which were based in part on the president's failures to pay attorney's fees and to cooperate, Judge Webber granted counsel's motion for leave to withdraw on the ground that the relationship between plaintiff's president and counsel had become strained to a point where counsel could not effectively represent plaintiff. Plaintiff's president vigorously opposed the motion to withdraw unless she were given a continuance during which to retain new counsel.

Judge Webber then denied plaintiff's president's request for a continuance to find substitute counsel. The Judge viewed himself to be bound by Judge Weisberg's earlier ruling that there would be no more continuances based on substitution of counsel. Judge Webber recessed the trial proceedings until 3:00 p.m. the following day, however, in order to "enable [plaintiff's president] to do whatever can do to get ready to go forward with the trial tomorrow." Judge Webber acknowledged that plaintiff was a corporation and thus could not proceed pro se, *fn4 but nevertheless ruled that there "is the possibility of being prepared to go forward with the trial."

The following day, May 14, 1987, plaintiff's president appeared in court with new counsel who sought a continuance to June 22, 1987, in order to prepare for trial. New counsel advised Judge Webber that twenty-four hours was inadequate time to properly and fairly prepare for trial. The lawsuit was four and one half years old and had generated extensive discovery. Judge Webber, reaffirming that he was bound by Judge Weisberg's earlier ruling and being of the opinion that plaintiff's president had received adequate notice that substitution of counsel would not be grounds for further continuance, denied the request for postponement of the trial, and because plaintiff was unprepared to go forward, granted Jackson Oil's motion to dismiss the lawsuit for failure to prosecute.

II.

It is well settled that the decision to dismiss a lawsuit for failure to prosecute is committed to the sound discretion of the court. Morgan v. Leitner, 444 A.2d 932 (D.C. 1982); Super. Ct. Civ. R. 41 (b). Dismissal being so drastic a remedy, however, this court has instructed that it should be granted sparingly and with care. Morgan v. Leitner, supra, 444 A.2d at 932; Hancock v. Mutual of Omaha Ins. Co., 472 A.2d 867, 869 n.3 (D.C. 1984). Factors that the court will consider on appeal include the trial Judge's explication of the reasons for the failure to prosecute as well as the resulting prejudice to parties. Morgan v. Leitner, supra, 444 A.2d at 932; Hancock v. Mutual of Omaha Ins. Co., supra, 472 A.2d at 869 n.3. Judge Webber considered the reasons for appellant's failure to go forward with the trial--namely, that plaintiff lacked counsel prepared to go to trial on the scheduled date and, under the law of the case, there could be no further continuance to obtain new counsel. The Judge noted further that plaintiff had received sufficient warning of this result. Since Judge Webber's decision to dismiss the lawsuit and, accordingly, the reasons underlying plaintiff's failure to retain counsel ready for trial are inextricably related to his prior decisions to grant plaintiff's trial counsel leave to withdraw and to deny a continuance, in reviewing the decision to dismiss plaintiff's lawsuit, we review whether Judge Webber properly exercised his discretion in making these underlying decisions.

Rule 101 (c) (4) of the Superior Court Civil Rules provides that an attorney's request to withdraw may be denied "if his withdrawal would unduly delay trial of the case, be unduly prejudicial to any party, or otherwise not be in the interests of Justice." This court has held that the rules are designed to promote rather than frustrate the interests of fundamental Justice. Urciolo v. Urciolo, 449 A.2d 287, 291 (D.C. 1982). The rules are consistent with provisions of the District of Columbia Code on Professional Responsibility which provide that a lawyer may request permission to withdraw if his client "renders it unreasonably difficult for the lawyer to carry out his employment effectively." DR 2-110 (C)(1)(d); Hancock v. Mutual of Omaha Ins. Co., supra, 472 A.2d at 869 n.2. We conclude that under the circumstances, in which trial counsel had a longstanding relationship with plaintiff and conceded basic readiness to try the case, see note 3, (supra) , had acknowledged on prior occasions that new counsel would require assistance in becoming familiar with the case files before proceeding to trial, knew the client had decided not to retain new counsel, and failed to demonstrate a fundamental change in the relationship with the client, Judge Webber's grant of counsel's motion to withdraw on the morning of the second trial date was an abuse of discretion. Granting the motion meant that plaintiff's lawsuit would be dismissed, thereby undermining a purpose of the rules. See Urciolo v. Urciolo, supra, 449 A.2d at 291 n.5. The Judge's finding that the attorney/client relationship was strained to the extent that trial counsel could not effectively represent plaintiff is unsupported by the record and clearly erroneous.

Appellate court decisions provide only limited guidance for the trial court in deciding whether to grant an eleventh-hour motion to withdraw from representation. Inevitably, the decision turns on the trial Judge's evaluation of an interpersonal relationship with nuances that often may fail to be revealed in a trial transcript. Nevertheless, and precisely because of the nature of the decision, the trial Judge must assure that an adequate record is available for appellate review. The succinct finding is clearly unlikely to suffice once the appellate court is asked to review the record under circumstances where the result is that the plaintiff's lawsuit is dismissed. Accordingly, in exercising discretion, Judge Webber had to assure that there was in the record sufficient evidence to reveal the type of total breakdown in the attorney/client relationship that would justify, in effect, dismissal of plaintiff's lawsuit.

In Hancock v. Mutual of Omaha Ins. Co., supra, the court held, in considering the application of DR 2-110 (C) (1), that a client's failure to cooperate could result in a breakdown of the attorney/client relationship which warranted the withdrawal of counsel. 472 A.2d at 869 n.2. *fn5 The court granted appellant counsel's motion for leave to withdraw on the ground that his client had "rendered it unreasonably difficult for the lawyer to carry out his employment effectively." The client had left telephone calls and letters unanswered and had made no arrangements to pay the attorney for past services. Id. at 869. The client did not object to counsel's withdrawal; instead the intervenor insurance company expressed concern about being prejudiced in the absence of substitute counsel. In determining that counsel's motion should be granted the court noted that any prejudice to intervenor could be alleviated by requiring the client to retain substitute counsel promptly or by the client proceeding pro se. Id. The instant case, of course, differs from Hancock since counsel's withdrawal occurred on the trial date and the plaintiff could not proceed pro se and objected to counsel's withdrawal in the absence of a reasonable continuance to retain new counsel. While the court in Hancock did not explicitly define the evidentiary burden of counsel who requests leave to withdraw an appearance based on a breakdown of the attorney/client relationship due to the client's failure to cooperate, the court did observe that an attorney should not be forced to proceed with a case when the client refuses both to communicate and to pay for services rendered. Id.

Courts in other jurisdictions also have not provided much guidance for determining when an attorney/client relationship has deteriorated to a point which warrants the trial Judge's decision to grant a motion to withdraw as counsel. Undoubtedly this is because of the variety of circumstances that may arise. Cf. Blessing v. Dow Chemical Co., 521 A.2d 1176, 1179 (Me. 1976); Smith v. Bryant, 264 N.C. 208, 141 S.E.2d 303, 305 (1965). However, we agree with the Supreme Judicial Court of Maine that, "in the absence of substantial prejudice to and unnecessary delay, attorneys should be allowed to withdraw should the court ...


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