Cite as: In re Unseal Docket 98 CR 1101, 12 MC 150 (ILG), NYLJ 1202574550100, at *1 (EDNY, Decided October 9, 2012)

District Judge I. Leo Glasser

Decided: October 9, 2012

AMENDED ORDER

 

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Pending before me is a motion by Wilson, Elser, Moskowitz, Edelman and Dicker LLP (hereafter "Wilson Elser") to be relieved from continuing to represent Frederick M. Oberlander in this, the above captioned matter, which was formally filed on February 23, 2012. As the caption explicitly reflects, this motion is, in its genesis, inextricably bound to 98 CR 1101, which was resurrected on May 18, 2010 in a proceeding for reasons which the Court will assume are, by now, familiar. The protagonists in that proceeding were named John Doe and Richard Roe who have since been identified as Felix Sater and Frederick M. Oberlander, respectively. By Order of Judge Cogan, issued on August 16, 2012, both Lerner and Wilson Elser were relieved of their continued representation of Oberlander in all proceedings under docket number 98 CR 1101, Dkt. #168, familiarity with which is assumed.

This motion by Wilson Elser to withdraw as counsel for Oberlander in this proceeding, 12 MC 150, is opposed by Oberlander who personally, in several submissions, vigorously denies Wilson Elser's authority to withdraw and vigorously denies that it is authorized to appear at all in this proceeding on his behalf. He vigorously asserts that the only lawyer authorized to represent him is Richard Lerner. It is crucial to the determination of this motion to address that issue.

As has been indicated above, the resurrection of a sealed criminal case that commenced in 1998 and finally terminated in 2009, was caused by an emergency

 

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request for relief filed on May 18, 2010, for reasons which are, by now, assumed to be known. One week later, by letter dated May 25, 2010, Wilson Elser, by Lauren J. Rocklin, requested an adjournment to June 8, 2010 to respond to a Temporary Restraining Order and Order to Show Cause, issued by this Court. The letter, on Wilson Elser stationery, read that, "[w]e write on behalf of Fred Oberlander," and was signed "Wilson Elser" by Lauren J. Rocklin. 98 CR 1101, Dkt. #53.

On June 7, 2010, Thomas W. Hyland, in opposition to that Order and by cross-motion, declared under penalty of perjury pursuant to 28 U.S.C. §1746 as follows: "I am a member of the firm of Wilson, Elser, Moskowitz, Edelman and Dicker LLP, counsel for attorney Frederick M. Oberlander, Esq….I make this declaration based upon my review of the file maintained for the defense of Oberlander." 98 CR 1101, Dkt. #50. Attached to that declaration was the Declaration, under penalty of perjury, of Fred M. Oberlander, dated June 4, 2010, in opposition to the Order to Show Cause. Dkt. #50-2.

On June 11, 2010, on the letterhead of Wilson Elser, a two page letter signed "Wilson Elser, Richard E. Lerner" began as follows: "We represent non-party respondent Frederick M. Oberlander. At today's appearance, the Court indicated that it felt our firm's interpretation…" Dkt. #58 (emphasis added). Virtually every letter received on behalf of Oberlander thereafter was on the letterhead of Wilson Elser, signed by Lerner under the Wilson Elser logo.

The documents numbered 50, 50-2, 53, and 58 corroborate what is related in a Memorandum in Support of Motion to Withdraw submitted by Thomas A. Leghorn of Wilson Elser as follows:

On May 19, 2010, Zurich American Insurance Company

 

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engaged Wilson Elser to represent The Law Office of Frederick Oberlander. The agreement was memorialized in a letter addressed to "Tom Hyland, Esq., Wilson Elser Moskowitz Edelman & Dicker LLP, 150 East 42nd Street, New York, NY 10017." Mr. Oberlander was copied on this assignment letter. Wilson Elser subsequently informed Zurich and Mr. Oberlander that the attorneys working on the matter would be Mr. Hyland, Mr. Lerner and Lauren Rocklin.

Mr. Hyland is a member of Wilson Elser and serves as the firm's General Counsel. Pursuant to the assignment letter dated May 19, 2010, Mr. Hyland became the attorney responsible for the management of Mr. Oberlander's representation. Exercising his discretion, Mr. Hyland delegated work on this case to Mr. Lerner, a fellow member of Wilson Elser. At no time did Mr. Oberlander retain Mr. Lerner to represent him in any matter.

12 MC 150, Dkt. #52.

The Zurich letter of engagement, a copy of which is attached to this Order marked "A," authorized Wilson Elser to staff its representation with "one partner, one associate and, if necessary, one paralegal." 98 CR 1101, Dkt. #215-1. In further corroboration of Mr. Leghorn's Memorandum is a letter written on Wilson Elser stationery signed by Richard E. Lerner with copies sent by him to Thomas W. Hyland, Esq., Lauren J. Rocklin, Esq., and Frederick M. Oberlander.

Oberlander acknowledged that Wilson Elser was engaged by his insurer to represent him in May 2010. 12 MC 150, Dkt. #56, at 10.

Wilson Elser, not yet having received the Court's permission to be relieved in this proceeding, in the discharge of its professional responsibility, appeared at the last Court hearing on August 27, 2012 by Irving Hirsch, Esq., who argued successfully on behalf of Oberlander's motion to unseal docket 98 CR 1101.

the submissions by both parties to Judge Cogan in 98 CR 1101 leading to his Order of August 16, 2012, together with their submissions in a pending motion before Judge Cogan for reconsideration.

For the reasons that follow, I see no reason to do so and decide this motion entirely upon the submissions of Oberlander in opposition to this motion.

 

At the onset, I note that an informal appearance1 in this proceeding, via a letter requesting an adjournment of the hearing scheduled on the motion to unseal was made on Wilson Elser stationery, signed by Coleen Friel Middleton, and docketed on April 18, 2012. Dkt. #30. On August 29, 2012, a letter was received on Wilson Elser stationery requesting "that the docket in this matter be corrected to reflect that I am counsel of record for Frederick Oberlander." Signed, beneath the Wilson Elser logo, Richard E. Lerner.2 Dkt. #45. On September 21, 2012, a formal Notice of Appearance was filed by Thomas A. Leghorn, Esq., of Wilson Elser, as counsel for Frederick Oberlander, requesting service of all papers on him at the offices of Wilson Elser. Dkt. #51. In a Reply Brief in Further Support of Motion to Withdraw, Leghorn stated that he entered his appearance "not to carry any further work on behalf of Mr. Oberlander, but to file the papers in furtherance of the firm's motion to withdraw." Dkt. #63.

I address the discrete issue before me, should Wilson Elser be relieved from representing Frederick Oberlander, by reviewing Oberlander's own submissions in opposition to that motion.

On September 21, 2012, he filed docket #53, alongside the caption of which appears "NOTICE OF FRAUDULENT FILING." That submission is set out in full and reads as follows:

Clients Are not Chattel. On many occasions over many months, but most recently this past Monday, September 17, 2012, I ordered in writing sent to Mr. Thomas Hyland, General Counsel of Wilson Elser, and other partners in that firm that they all, every lawyer in the firm except for Richard E. Lerner and one associate if acting under his direct supervision, are prohibited from filing an appearance in my behalf in this any court for any reason whatsoever. Forthcoming memorandum of law will go into further detail.

This letter is to notice the court and all other parties that Mr. Leghorn's notice of appearance is without authority, is a legal nullity, to be regarded pro tanto brutum fulmen, and he is not to receive any communication from anyone, that Richard E. Lerner remains sole attorney of record for me personally, not the firm itself.

Agency or no agency law, no power on earth can justify my forced representation in this or any court by any attorney anywhere. Respectfully, unless this court is prepared to upend the entire Anglo-American history of professional ethics by finding the right of a law firm to force upon a client a fortiori against the client's direct order to the contrary the representation in a federal district court by an attorney he refuses to have speak for him the matter and the necessity of the court's disregard of the appearance and further action is clear.

I will separately request the court convene immediate hearings to determine whether to refer this matter for prosecution to the Eastern District of New York but I do now request it be immediately referred to the Eastern District Disciplinary Committee for immediate censure against Mr. Leghorn and all others involved. Depending on the amount of time required to deal with this

 

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illegal and unethical filing of appearance I believe it also will likely be the case that, though filed ECF by PACER and not in person with the clerk, this false and fraudulent filing of appearance may be considered criminal contempt insofar as it may be legally deemed to have occurred in the geographical presence of the court and has generated disruption to the orderly administration of justice. It is well established that filing false, fraudulent, or misleading documents with a court may be the basis for criminal contempt pursuant to 18 U.S.C. §401 (1) if the consequences of dealing with them are sufficiently disruptive. If such be the case here, I expect to file a motion for this court to commence hearings in anticipation of activating Fed. Rul. Crim. Proc 42.

/s/ Frederick M. Oberlander

On September 24, 2012, he filed a 21 page document, Dkt. #56, the previously announced forthcoming memorandum of law, which he styled

OPPOSITION TO APPLICATION FOR LEAVE TO WITHDRAW

MEMORANDUM OF LAW IN RE PROFESSIONAL RESPONSIBILITY AND MOTION TO WITHDRAW

HEARING REQUESTED ORAL ARGUMENT REQUESTED

APPLICATION FOR INJUNCTIVE RELIEF AND TO STRIKE PAPERS

I set out, in haec verba, those portions of that submission which informs the determination the Court is driven to reach.

His assertion, on page 11, that "[c]ommencing with the first proceeding on June 11, 2010, Mr. Lerner appeared as sole attorney of record for me in 98-CR-1101" is, as was demonstrated above, wrong. Wilson Elser appeared by letter on May 25th and by Thomas Hyland on June 8th in a submission to which Oberlander annexed his declaration under the penalty of perjury. Dkt. #50 and 50-2.

In his Opposition to the Application to withdraw, Dkt. #56 at 17, Oberlander references a letter dated September 17, 2012, addressed to Thomas Hyland, partner in and general counsel of Wilson Elser, Dkt. #56-2, which is attached in full and marked "B," but portions of which I set out here:

As to Hyland. Middleton and Hirsh: You are to take no action to represent me or purporting to represent me. You will file or cause to be filed no papers of any kind in any court or other juridical or adjudicative forum or before such similar tribunal for any reason that represent me or purport to represent me, appear for me or purport to appear for me, or take action or purport to take action for me or in my behalf. You will not contact anyone in any place at any time representing me or purporting to represent me.

You are to take no action to cause anyone in your firm other than Richard Lerner to represent me or purport to represent me or do anything or forbear from doing anything which if done by one of the above would be a breach of my direct order to him or her.

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You are forbidden to access anything in Mr. Lerner's possession, care, custody, or control, if tangible by any means, physically or electronically, and if intangible by any means,

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Hyland confirmed receiving that letter by email sent the very next day, which Oberlander attached, Dkt. #56-3, which I attach hereto and marked "C,"

Every line of that letter is completely blacked out.

Oberlander then requests that:

Respectfully, this court must make clear that no matter what, a client has the absolute, indefeasible rights to forbid any attorney to speak in court in his behalf, and to

 

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revoke any prior authorization to the contrary.

Were this court to hold otherwise, that an attorney like Hyland may force-feed upon an unwilling client an unwanted advocate to appear and speak for him in court — like a farmer may force-feed corn down the gullet of a goose — showing no more regard for the client than the farmer shows for the goose, it would upend the fundamental tenet of American jurisprudence, viz. every client is free to choose who may speak for him in court and who may not.

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Assuming a hearing is held, I will admit evidence that Hyland's attempts to withdraw, which have now hit criminal proportions, are pretextual, that he is manufacturing non-existent conflict to accomplish indirectly what he cannot legally do directly, which is to withdraw for delayed payment.3

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I would be the first to admit that accusations against Hyland and Leghorn of criminal, if not to say felonious, misconduct would make it problematic to continue to be represented by the firm.

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But, given the balance of the equities here, and their appalling misconduct in fraudulent filings, this court can and must order Hyland, Leghorn, Middleton, Irving Hirsh, a partner in the firm also involved, and all others acting in concert with them, etc. to do nothing to interfere with Lerner's representation of me while he is winding up his participation in the firm.

Dkt. #56 at 19.

Oberlander's submissions would urge the belief that the firm of Wilson Elser has unilaterally and for no reason or justification, decided to enlist itself on his behalf and

 

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represent him and has assiduously continued to do so since May 2010. It would be remarkable were that so. Rather, it is beyond cavil that Oberlander notified his malpractice insurer of potential liability and they responded by assigning Wilson Elser to represent him. Attach. A. Oberlander knew that and, as indicated above, attached his sworn declaration to a submission on his behalf by Hyland early on in the case. As has been already noted, every document submitted in this litigation, beginning with a letter appearance on May 25, 2010, was in the name of Wilson Elser and continued as late as August 29, 2012, as is clearly manifested by Lerner's Notice of Appearance.

Rule 1.4 of the Local Rules of the Southern and Eastern Districts of New York, provides in relevant part that:

An attorney who has appeared as attorney of record for a party may not withdraw from a case without leave of the court granted by order. Such an order may be granted only upon a showing by affidavit or otherwise of satisfactory reasons for withdrawal…. (emphasis added).

That the law firm Wilson Elser was engaged to represent Oberlander and appeared on his behalf with his knowledge is beyond dispute. Rule 1.0(h) of the New York Rules of Professional Conduct defines "'Firm' or 'law firm' [to] include[], but is not limited to a lawyer or lawyers in a law partnership, [or] professional corporation…."

Rule 1.0(m) defines "Partner" as denoting "a member of a partnership, [or] a shareholder in a law firm…."

It requires no elaborate citation of authority to understand that the "law firm," the partnership, the legal entity, can appear only through one of its lawyers, who in this case always appeared under the "umbrella" of Wilson Elser. That understanding is explicitly reflected in Rule 11(c)(1). Oberlander cites at some length to Pavelic & LeFlore v. Marvel Entm't. Grp., 493 U.S. 120 (1989), but also appears to understand that Pavelic

 

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was superceded by an amendment to Rule 11 in 1993 at page 8 of his Opposition, Dkt. #56, where he writes: "To be sure, the offending attorney of record (circa 1983) as Rule 11 now permits sanctioning the firm as well…." Section 11(c)(1) of that Rule now provides in relevant part:

If, after notice and reasonable opportunity to respond, the Court determines that Rule 11(b) has been violated, the Court may impose an appropriate sanction on any attorney, law firm…that violated the rule, or is responsible for the violation…(emphasis added).

The amendment is a tacit recognition of a basic tenet of the common law of partnership as embodied in Section 20(1) of the New York Law of Partnership, viz.,

Every partner is an agent of the partnership for the purpose of its business, and the act of every partner, including the execution in the partnership name of any instrument, for apparently carrying on in the usual way the business of the partnership of which he is a member binds the partnership

….

That the words cascading from Oberlander's submissions as displayed above and in the attachments thereto provide the "otherwise satisfactory reasons" of Rule 1.4 for being relieved, is compelling.

Compelling, too, are the unambiguous words of the New York Rules of Professional Conduct, which drive this Court to conclude that Wilson Elser's motion to withdraw must be and is hereby granted. Those are Rules 1.16(b)(3) and 1.16(c)(7) which provides that a: "lawyer shall withdraw from the representation of a client when…the lawyer is discharged." (emphasis added).

Oberlander's assertion that the Court "must order Hyland, Leghorn, Middleton, Hirsh and all others acting in concert with them etc." (which literally would include Lerner) can only be interpreted as discharging the firm.

 

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Rule 1.16(c)(7) provides that:

[A] lawyer may withdraw from representing a client when…the client fails to cooperate in the representation or otherwise renders the representation unreasonably difficult for the lawyer to carry out employment effectively. (emphasis added).

To cite authority for the obviously indisputable application of those Rules to the facts as they are revealed above would be an affectation of research. But perhaps the citation of just two cases would not be so regarded. One that almost mirrors this one, Furlow v. City of New York, No. 90 Civ. 3956, 1993 WL 88260 (S.D.N.Y. March 22, 1993); and Louima v. City of New York, No. 98 CV 5083, 2004WL 2359943*, at 61 (S.D.N.Y. Oct. 5, 2004) (citing cases).

To paraphrase Oberlander's graphic argument for denying the motion is to mandate the reason for granting it. To hold that Wilson Elser must continue to represent him is to force-feed an unwilling law firm upon an unwanted client — "like a farmer may force-feed corn down the gullet of a goose, showing no more regard for the [law firm] than the farmer shows for the goose." Dkt. #56 at 17-18.

The Court is not unaware that Wilson Elser's motion is granted notwithstanding that its motion is bottomed on the conflict of interest presented to Judge Cogan in its similar motion to withdraw, which was granted in 98 CR 1101. The determination made here and made entirely upon the words of Oberlander can hardly be claimed by him to be granted upon an argument of which he had no notice. To quote him again, "this is not a team sport," Dkt. #56 at 16, and he can hardly claim that he is being prejudiced. Admittedly not on point but informing the path to follow by a nisi prius court in deciding a case on a ground not presented are, for the most part, appellate cases. See, e.g., Bruh v. Bessemer Venture Partners III, 464 F.3d 202, 205 (2d Cir. 2002) ("Holding

 

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that we may affirm on any basis for which there is sufficient support in the record"); Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 63-64 (2d Cir. 1997) ("It is beyond cavil that an appellate court may affirm the judgment of the district court on any ground appearing in the record"). See also Dandridge v. Williams, 397 U.S. 471, 475 n.6 (1970) ("The prevailing party, may, of course, assert in a reviewing court, any ground in support of his judgment, whether or not that ground was relied upon or even considered by the trial court."); United States v. Torrellas, 455 F.3d 96, 103 (2d Cir. 2006) (finding that a court reviews for plain error claim of error not raised in district court).

Informative, too, is Rule 56(f) of the Federal Rules of Civil Procedure, which permits a court to grant a motion for summary judgment on grounds not raised by a party. The prerequisite of giving notice and a reasonable time to respond has no relevance here where the grounds not stated by Wilson Elser are provided by Oberlander himself.

Financial concerns, which are alluded to in paragraph 7 of Lerner's Declaration, Dkt. #54-2, are matters between Oberlander and his insurer. This Order grants the motion to withdraw made by Wilson Elser only. Lerner has made no motion to withdraw and this Order does not address one. He has filed his own notice of appearance, albeit on Wilson Elser stationery, requesting specifically that the record reflect that. Dkt. #45.

I am also not unaware that Wilson Elser may, understandably, believe that the Order granting the firm of Wilson Elser to withdraw must also embrace its members, including Lerner, given the definition of "firm" or "law firm" cited above in Rule 1.0(h). Were it not for Lerner's manifest insistence that his Notice of Appearance be recorded and the Notice of Appearance of Leghorn, Dkt. #51, that belief would have facial merit.

 

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It is obvious, however, that those filings at the very least (to say nothing of the submissions by Oberlander and Lerner) bespeak a tension within that firm. To the extent that Lerner's continuation as a partner of the firm may raise concerns about partnership liability for his conduct, see, e.g., NY Partnership Law §20; Fed. R. Civ. P. 11(c)(1), supra, that is a matter for them to resolve.4

For the foregoing reasons, the motion of Wilson Elser for permission to withdraw from continued representation of Oberlander in 12 MC 150 is hereby granted. Oberlander's request for a hearing and injunctive relief is denied.

SO ORDERED.

1. A party may appear in an action either formally or informally. Hayuk v. Hallock, 11 Misc.2d 1086 (S. Ct. Oneida Co. 1958).

2. I assume that what was intended to be "corrected" was the impression, possibly created, that Coleen Middleton, who signed the letter request for an adjournment, was now counsel of record.

3. No reference to non-payment is to be found in any of Wilson Elser's applications to withdraw.

4. Contradictory views deterred me from making mention of Oberlander's statement on page 19 of his Opposition, Dkt. #56, that he was notified by Lerner on September 10th of his "likely imminent departure from the firm" and that he elected to follow him. In his Reply Brief in Support of the Motion to Withdraw, Mr. Leghorn writes that "to our knowledge…there is no evidence of Mr. Lerner's imminent departure." Dkt. #63 at 4 n.7.