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Berliner Corcoran & Rowe LLP v. Orian

July 2, 2008


The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge


This case arises out of a dispute over attorneys' fees. Plaintiff Berliner Corcoran & Rowe LLP ("BCR") represented Defendants Global Horizons, Inc. ("Global Horizons") and Mordechai Orian ("Orian") (collectively, "Global") in a matter still pending before the Department of Labor ("DOL"). BCR alleges that Global failed to pay a portion of BCR's attorney's fees in the DOL proceedings, and Global has counterclaimed alleging that BCR committed legal malpractice (among several other claims). Prior to the conclusion of discovery in this case, Global filed a [48] Motion for Summary Judgment, or in the alternative, Summary Adjudication on December 31, 2007, and BCR filed a [52] Cross-Motion for Summary Judgment on January 25, 2008.*fn1

After a thorough review of the Parties' submissions,*fn2 including the attachments thereto, applicable case law, statutory authority, and the record of the case as a whole, the Court shall deny the Parties' Motions without prejudice because they involve factual disputes as to which the Parties have not yet completed discovery, with two exceptions. First, the Court shall deny with prejudice BCR's claim that Orian is individually liable for BCR's fees, as a matter of law, based on the language of the Parties' Retainer Agreement. Second, the Court shall deny with prejudice Global's claim that the Retainer Agreement violates District of Columbia Rule of Professional Responsibility 1.13, making it unenforceable as a matter of law. Accordingly, the Court shall deny-in-part and deny-without-prejudice-in-part Defendants' [48] Motion for Summary Judgment, or in the alternative, Summary Adjudication, and deny-in-part and deny-without-prejudice-in-part Plaintiff's [52] Cross-Motion for Summary Judgment, for the reasons that follow.


The Parties agree on almost none of the material facts underlying their Motions. On November 15, 2005, Orian signed a retainer agreement sent as a letter by BCR to provide legal services in a DOL matter (the "Retainer Agreement" or the "Agreement"). See Defs.' Mot., Ex. A (11/14/05 Retainer Agreement).*fn3 Although the Agreement contemplates BCR's representation of both Global Horizons and Orian as clients, the Agreement does not specify whether Orian is a client in his individual or corporate capacity. Global claims that Orian executed the Agreement on behalf of Global Horizons in his capacity as President and Chief Strategic Officer of Global Horizons, and that he did not sign the agreement in his individual capacity. See Defs.' Stmt. of Material Facts ("Defs.' Stmt.") ¶ 1. BCR claims that Orian executed the agreement as an agent of Global Horizons, and on his own behalf as an individual client. See Pl.'s Stmt. of Material Facts ("Pl.'s Stmt.") ¶ 1.

The Parties identify different portions of the Agreement to support their arguments. On the one hand, Global emphasizes that the Retainer Agreement is addressed to Orian as "President & Chief Strategic Officer" of Global Horizons. See Agreement at 1. On the other hand, BCR emphasizes that Orian signed the Agreement over a signature block that reads, "President of Global Horizons Inc. and Personally." Id. at 2. Other provisions of the Agreement are subject to the Parties' conflicting interpretations. For example, the Agreement expressly relates to the DOL proceedings, naming both Global Horizons and Orian:

Global Horizons Inc. ("Global") -- U.S. Department of Labor ("DOL")

Determination and Notice of Prospective Denial of Temporary Alien Agricultural Labor Certification for Three Years of Global and Mordechai Orian (File Number 1280844)

Id. Although the Parties do not dispute that Orian was named in the DOL proceedings, they dispute whether he has been named as an individual or as a corporate officer of Global Horizons. See Defs.' Mot. at 6; Pl.'s Mot. at 3. Similarly, the Agreement uses the word "you" in various places, and in one instance refers to "your or Global's interests." See Agreement at 1-2. Global argues that the word "you" refers to Orian in a corporate capacity, see Defs.' Mot. at 7, and BCR argues to the contrary, see Pl.'s Mot. at 8.

Finally, both Parties bring to bear certain facts outside the four corners of the Retainer Agreement to support their respective positions. Global argues that BCR never informed Orian that BCR considered him an individual client, see Defs.' Stmt. ¶¶ 2-3, 5, and BCR argues that it was "discussed and agreed" that Orian "would be personally liable" for BCR's fees, Pls.' Stmt. ¶¶ 2-3, 5. Global argues that BCR's invoices indicated that BCR performed services for Global Horizons only, see Defs.' Stmt. ¶¶ 6-7, 11, and BCR argues that it performed work on behalf of both Global and Orian, see Pl.'s Stmt. ¶¶ 6-7, 11. Global argues that BCR failed to inform Orian that there "may be a potential conflict of interest in BCR's representation if it represented both Mr. Orian personally, and Global Horizons," Defs.' Stmt. ¶ 4, and BCR denies there was ever an actual or potential conflict, see Pl.'s Stmt. ¶ 4.


A party is entitled to summary judgment if the pleadings, depositions, and affidavits demonstrate that there is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994). Under the summary judgment standard, the moving party bears the "initial responsibility of informing the district court of the basis for [its] motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits which [it] believe[s] demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The non-moving party, in response to the motion, must "go beyond the pleadings and by [his] own affidavits, or depositions, answers to interrogatories, and admissions on file, 'designate' specific facts showing that there is a genuine issue for trial." Id. at 324 (internal citations omitted).

Although a court should draw all inferences from the supporting records submitted by the nonmoving party, the mere existence of a factual dispute, by itself, is not sufficient to bar summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To be material, the factual assertion must be capable of affecting the substantive outcome of the litigation; to be genuine, the issue must be supported by sufficient admissible evidence that a reasonable trier-of-fact could find for the nonmoving party. Laningham v. U.S. Navy, 813 F.2d 1236, 1242-43 (D.C. Cir. 1987); Liberty Lobby, 477 U.S. at 251 (the court must determine "whether the evidence presents a sufficient disagreement to require submission to a [fact-finder] or whether it is so one-sided that one party must prevail as a matter of law"). "If the evidence is merely colorable, or is not sufficiently probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50 (internal citations omitted). "Mere allegations or denials in the adverse party's pleadings are insufficient to defeat an otherwise proper motion for summary judgment." Williams v. Callaghan, 938 F. Supp. 46, 49 (D.D.C. 1996). The adverse party must do more than simply "show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, while the movant bears the initial responsibility of identifying those portions of the record that demonstrate the absence of a genuine issue of material fact, the burden shifts to the non-movant to "come forward with 'specific facts showing that there is a genuine issue for trial.'" Id. at 587 (citing Fed. R. Civ. P. 56(e)) (emphasis in original).

Summary judgment "ordinarily 'is proper only after the plaintiff has been given adequate time for discovery.'" Americable Int'l, Inc. v. Dep't of Navy, 129 F.3d 1271, 1274 (D.C. Cir. 1997) (quoting First Chicago Int'l v. United Exch. Co., 836 F.2d 1375, 1380 (D.C. Cir. 1988)). Under Federal Rule of Civil Procedure 56(f), a court "may deny a motion for summary judgment or order a continuance to permit discovery if the party opposing the motion adequately explains why, at that timepoint, it cannot present by affidavit facts needed to defeat the motion." Strang v. United States Arms Control & Disarmament Agency, 864 F.2d 859, 861 (D.C. Cir. 1989); Londrigan v. Fed. Bureau of Investigation, 670 F.2d 1164, 1175 (D.C. Cir. 1981). "[T]he purpose of Rule 56(f) is to prevent 'railroading' the non-moving party through a premature motion for summary judgment before the non-moving party has had the opportunity to make full discovery." Dickens v. Whole Foods Market Group, Inc., Civ. No. 01-1054, 2003 WL 21486821, at *2 n.5 (D.D.C. ...

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