April 27, 1995
CATHERINE ANN CRANE, APPELLANT,
KENT BRUCE CRANE, APPELLEE.
Appeals from the Superior Court of the District of Columbia. (Hon. Geoffrey M. Alprin, Trial Judge).
Before Ferren and King, Associate Judges, and Weisberg, Associate Judge of the Superior Court of the District of Columbia.*
The opinion of the court was delivered by: Weisberg
WEISBERG, Associate Judge: Appellant ("the wife") appeals an order of the trial court which (1) denied her motion for production and in camera review of certain documents alleged to be in the possession of lawyers for appellee ("the husband") and (2) granted the motion of the husband's lawyer to withdraw as counsel. She argues that the trial Judge abused his discretion in ruling on both motions. We affirm.
This is the latest skirmish in a long-running domestic relations dispute that began in 1985 and has now spread across three continents. Much of the procedural history is set forth in our opinion disposing of the husband's appeal of a previous trial court order and need not be repeated here. See Crane v. Crane, 614 A.2d 935 (D.C. 1992) (hereinafter "Crane I"). *fn1
Following our decision in Crane I, the wife, unable to locate the husband, whose last known address is in Katmandu, Nepal, filed a motion asking the trial court to review all documents in the files of the husband's lawyer and another lawyer he allegedly retained previously, to determine whether any of these documents relate to a trust she claims the husband created on the Isle of Man. That trust, according to the wife, was used by the husband fraudulently to place beyond her reach certain assets to which she is entitled under their separation agreement and divorce decree and previous orders of the trial court. The husband did not appear below and did not respond to the wife's motion. Stephen Gray, one of the lawyers whose files were the subject of the motion, asserted in response to the wife's motion that there was no evidence of any such trust and that, in any event, he had no authority to make any representations on behalf of the husband, who had discharged him as counsel but had refused to discharge him in writing. Gray also filed a separate motion to withdraw as counsel. Charles Bruce, the other lawyer whose files the wife sought, was not a party to the proceedings and did not respond to the wife's motion. The wife filed an opposition to Gray's motion to withdraw, arguing that the motion did not comply with court rules and that granting it would be prejudicial to her efforts to satisfy her judgment. In a written order entered April 8, 1993, the trial Judge denied the wife's motion for production and in camera review of documents and granted Gray's motion to withdraw. *fn2 Appellant timely noted her appeal.
We must first determine whether the wife's claims are properly before this court. Although the wife contends that the trial court rulings at issue are appealable under the collateral order doctrine of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 93 L. Ed. 1528, 69 S. Ct. 1221 (1949), we conclude that we have jurisdiction because the orders from which this appeal is taken are both final orders under D.C. Code § 11-721 (a)(1) (1989).
A pretrial order granting or denying discovery from a non-party witness is not ordinarily final for purposes of appeal unless, in the case of an order granting discovery, the subject of the order refuses to comply and is adjudicated in contempt. See, e.g., Scott v. Jackson, 596 A.2d 523, 527-28 (D.C. 1991); United States v. Harrod, 428 A.2d 30, 30-32 (D.C. 1981) (en banc) (citing United States v. Ryan, 402 U.S. 530, 532-33, 29 L. Ed. 2d 85, 91 S. Ct. 1580 (1971); Cobbledick v. United States, 309 U.S. 323, 84 L. Ed. 783, 60 S. Ct. 540 (1940); Alexander v. United States, 201 U.S. 117, 120-22, 50 L. Ed. 686, 26 S. Ct. 356 (1906)). Discovery orders "typically bespeak their own interlocutory character," as they are generally issued in the context of ongoing litigation. Scott v. Jackson, 596 A.2d at 527 (quoting United States v. Sciarra, 851 F.2d 621, 627-28 (3d Cir. 1988)). Furthermore, we have declined to allow appeal of discovery orders under the narrow exception to the finality rule carved out by the Supreme Court in Cohen. *fn3 See Scott v. Jackson, 596 A.2d at 528-30; Harrod, 428 A.2d at 31-35; cf. Horton v. United States, 591 A.2d 1280, 1282-83 (D.C. 1991).
However, discovery orders may be considered final and appealable where the discovery request is the only proceeding pending before the court. See Scott v. Jackson, 596 A.2d at 527 n.7; see also United States v. Sciarra, 851 F.2d at 628-29 ; 8 CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 2006, at 76-77 (2d ed. 1994). *fn4 This category includes orders relating to discovery in aid of execution on a judgment. See 8 WRIGHT ET AL., (supra) , § 2006, at 76-78 & n.4. While orders granting discovery in aid of execution have generally been held not appealable, *fn5 appeal has been allowed from or ders denying discovery in aid of execution. See Central States, 971 F.2d at 6; Wilkinson v. FBI, 922 F.2d 555, 558 (9th Cir. 1991); Fehlhaber v. Fehlhaber, 664 F.2d 260, 262 (11th Cir. 1981); United States v. McWhirter, 376 F.2d 102, 104-05 (5th Cir. 1967). *fn6 The order denying production and in camera inspection of documents from which the wife appeals in this case is a post-judgment order denying discovery in aid of execution. There is no underlying litigation that would be disrupted by the appeal, and if we were to hold that the order is not appealable at this time, it would effectively deny the aggrieved party appellate review at any time. We hold, therefore, that the trial court's order denying discovery is a final appealable order.
Similar concerns compel the same result with respect to the post-judgment order granting attorney Gray's motion to withdraw as counsel for the husband. "Piecemeal review, against which the rule of finality is aimed, is not as decisive a consideration after judgment as before judgment." Joseph F. Hughes & Co. v. United Plumbing & Heating, Inc., 390 F.2d 629, 630 (6th Cir. 1968); accord Plymouth Mutual Life Ins. Co. v. Illinois Mid-Continent Life Ins. Co., 378 F.2d 389, 391 (3d Cir. 1967). Thus, most post-judgment orders are appealable "as long as the court has completely disposed of the matter." Ohntrup v. Firearms Ctr., Inc., 802 F.2d 676, 678 (3d Cir. 1986) (quoting Sportmart, Inc. v. Wolverine World Wide, Inc., 601 F.2d 313, 316 (7th Cir. 1979)); accord 15B WRIGHT ET AL., (supra) , § 3916, at 351 (2d ed. 1992). While a pretrial order granting a motion to withdraw as counsel has been held not final or appealable, see Eckles v. Furth, 557 F.2d 953, 956 (2d Cir. 1977), appeal has been allowed from a post-judgment order denying a motion to withdraw, even where discovery in aid of execution was pending. See Ohntrup, 802 F.2d at 678. *fn7 Accordingly, we hold that the trial court's order granting attorney Gray's motion to withdraw is appealable as a final order. *fn8
III. The Discovery Order
The wife contends that our September 29, 1992, Disposition of the earlier appeal taken by the husband required the trial court to undertake an in camera inspection of the files of Stephen Gray and Charles Bruce in order to "inquire thoroughly in regards to any knowledge that ex-husband's counsel might possess in regard to ex-husband's secretion of substantial assets from this jurisdiction." We believe the trial court, having correctly determined that the husband had informally discharged Gray as his lawyer and that Gray should be permitted formally to withdraw, was correct in concluding that it lacked authority to order an in camera inspection of documents in the control of persons who were not parties to the proceeding. Assuming such documents exist, the proper way to obtain them from Mr. Bruce and Mr. Gray is by a subpoena duces tecum. *fn9 If the person subpoenaed to produce documents resists production by claiming that the documents are privileged, *fn10 the court may then order an in camera inspection of the documents in dispute and quash the subpoena with respect to any documents protected by a valid privilege. *fn11 The court may of course enforce a subpoena by contempt.
At an earlier proceeding in this case, the trial court had issued an order authorizing the wife's counsel to serve Mr. Bruce with a subpoena duces tecum and to depose him with reference to the creation of the alleged trust on the Isle of Man. For reasons that do not appear in the record, that subpoena was never served. Instead, the wife attempted to circumvent the rules by asking the trial court to (1) compel both Mr. Bruce and Mr. Gray, for whom a subpoena duces tecum had not even been authorized, much less served, to produce documents and (2) conduct an in camera inspection of any documents produced. The trial court correctly declined to issue such an order. *fn12
Even if the trial court could be said to have had discretion to circumvent the court's discovery rules in the interest of expediting the wife's quest for satisfaction of her judgment, we would not say that the denial of the wife's motion was an abuse of that discretion. See Plough v. National Academy of Sciences, 530 A.2d 1152, 1156 (D.C. 1987) (decision to allow discovery is left to sound discretion of trial court and will not be disturbed on appeal absent abuse of discretion). Assuming again that the putative documents exist, it was certainly reasonable for the trial court to insist on a subpoena so that the issue of the attorney-client privilege, vel non, could be decided in an adversarial proceeding in which the party asserting the privilege had an opportunity to be heard before production of documents arguably covered by the privilege.
IV. The Order Granting Leave to Withdraw
The wife argues that the trial court should not have allowed Mr. Gray to withdraw without ascertaining whether he and Charles Bruce, who was once associated with Gray's law firm, *fn13 assisted the husband in hiding assets from the wife. We disagree.
The decision to grant or deny a motion by an attorney to withdraw as counsel is committed to the discretion of the trial court. See Atlantic Petroleum Corp. v. Jackson Oil Co., 572 A.2d 469, 474 (D.C. 1990). In his motion Gray represented that he had moved to his firm's London office in June of 1991 and could not continue to represent the husband from there; that the husband had discharged him, but had refused to put the discharge in writing; that he could no longer afford to represent the husband, who owed his firm more than $23,000 in unpaid legal fees; that no one in his firm's Washington, D.C. office was available to represent the husband because that office no longer handled domestic relations litigation; that he had done nothing to circumvent any court order; and that there were no unanswered discovery requests directed to the husband's counsel.
Pursuant to Rules 1.16 (b)(3) and 1.16 (b)(4) of the District of Columbia Rules of Professional Conduct, an attorney may withdraw from representing a client if "the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled," or if "the representation will result in an unreasonable financial burden on the lawyer or obdurate or vexatious conduct on the part of the client has rendered the representation unreasonably difficult." Where a client refuses to communicate with his attorney and makes no arrangements to pay the attorney for past services, the attorney's motion to withdraw will ordinarily be granted. See Hancock v. Mutual of Omaha Ins. Co., 472 A.2d 867, 869 (D.C. 1984). See also Hammond v. T.J. Little & Co., 809 F. Supp. 156, 162-63 (D. Mass. 1992).
Furthermore, the wife is not unduly prejudiced by Gray's withdrawal. *fn14 No pending trial or other scheduled court proceeding is imperiled and, unless and until the husband arranges for substitute counsel, the wife can rightfully assume he has elected to proceed in propia persona. *fn15 If the wife has a legitimate claim that Mr. Gray or members of his law firm assisted the husband in perpetrating a fraud by creating a bogus extra-territorial trust with marital property owed to her, she can prosecute that claim just as effectively, if not more effectively, with Gray no longer acting as the husband's lawyer. To the extent that the wife's search for the husband's assets may be frustrated by an assertion of the attorney-client privilege, both Mr. Gray and Mr. Bruce (if, indeed, Mr. Bruce ever acted as the husband's lawyer, an issue we do not decide) are under a continuing duty to assert the privilege on any matters as to which they have a good faith belief that the privilege pertains, and their obligation to assert the privilege on the husband's behalf does not evaporate now that Gray no longer represents the husband in this proceeding. District of Columbia Rules of Professional Conduct 1.6 (a)(1), 1.6 (f). In any event, neither Mr. Bruce nor Mr. Gray has been called upon to assert the privilege because neither has been subpoenaed by the wife. Under these circumstances, the trial court did not abuse its discretion in granting Gray's motion to withdraw.
For the foregoing reasons, the orders of the trial court are hereby