Banov v. Kennedy, 95-SP-1164

• Decision Date: 01 May 1997
• Docket Number: 95-SP-1167.,No. 95-SP-1164,95-SP-1164
• Citation: 694 A.2d 850
• Parties: Alan BANOV, Petitioner, v. The Honorable Henry H. KENNEDY, Jr., Respondent. In re Alan BANOV, Appellant.
• Court: D.C. Court of Appeals

694 A.2d 850

Alan BANOV, Petitioner, v. The Honorable Henry H. KENNEDY, Jr., Respondent.

In re Alan BANOV, Appellant.

Nos. 95-SP-1164, 95-SP-1167.

District of Columbia Court of Appeals.

Argued December 19, 1995.

Decided May 1, 1997.

Allan Banov, pro se.

Gary A. Winters, Washington, DC, with whom Lawrence S. Robbins, was on the brief, for respondent.

Before STEADMAN^* and RUIZ, Associate Judges, and BELSON, Senior Judge.

RUIZ, Associate Judge.

Alan Banov, the petitioner, seeks a writ of mandamus to the trial court directing it to permit Banov to withdraw from a case in which he claimed a conflict of interest as well as various irreconcilable differences with his client. Because we conclude that the trial court has exceeded its authority in denying Banov's renewed motion to withdraw from representation of his client, the mandamus relief Banov seeks is appropriate.

I.

Mary Ann White-Pickering, who is deaf and does not speak, suffers from a mental impairment affecting her short-term memory that arose from an automobile accident some years ago. Banov agreed in 1992 to represent White-Pickering in a suit she brought against her former employer, Deafpride, Inc., alleging discrimination on the basis of her handicap. Deafpride is a non-profit organization devoted to the procurement and provision of services to members of the deaf community. The appellant claims, and no party disputes, that Deafpride is no longer financially viable and has virtually no assets from which to pay a monetary judgment.

The litigation against Deafpride began when White-Pickering first retained Banov to pursue administrative and legal remedies after she was discharged. Banov operates a small law office, with one associate, principally practicing employment law. The agreement that Banov reached with White-Pickering was that in exchange for Banov's bringing a lawsuit against Deafpride, White-Pickering would pay Banov a $5,000 retainer and $170 an hour for his services, with an annual increase of $10 in his hourly fee. Banov agreed to a payment schedule of $200 per month. White-Pickering adhered to that schedule for almost three years, until January 1995, when conflicts began between Banov and White-Pickering.

The breakdown in the attorney-client relationship first arose around the question whether to accept a settlement offer that Deafpride made on January 12, 1995. At the time that Deafpride made its offer, a trial was scheduled for January 30 on the merits of White-Pickering's discrimination claims. The offer involved a cash settlement of $5,000, which, according to Deafpride, represented almost the sum total of its liquid assets. Because Deafpride had produced evidence that persuaded Banov that it was virtually insolvent, Banov strongly recommended that White-Pickering accept Deafpride's offer, and further offered to accept $2,500 of the Deafpride settlement as a full discharge of White-Pickering's obligations to Banov, which Banov claimed amounted to $38,000. The point that Banov sought to emphasize to White-Pickering, a point which he maintains in this court, is that because Deafpride was offering White-Pickering what was almost the total remainder of its assets, any recovery that could be obtained at trial could not exceed the amount then offered by Deafpride. Moreover, Banov calculated that trying the case would require an additional investment of at least $20,000 in legal fees.² Therefore, because not even the outstanding balance of White-Pickering's account with Banov could be met from a judgment even if White-Pickering prevailed, neither Banov nor White-Pickering would obtain any financial satisfaction as a result of trial.

On January 20, 1995, White-Pickering rejected Banov's advice and refused Deafpride's offer of settlement. Believing that White-Pickering's decision to decline the offer of settlement was irrational and would preclude any hope of even minimal financial recovery for White-Pickering or himself, Banov filed the first of what would eventually be three motions to withdraw as White-Pickering's attorney. On January 25, Judge Kennedy, the trial judge assigned to the White-Pickering case, denied Banov's first motion to withdraw.

On January 30, Judge Kennedy denied a joint motion for a continuance of the trial set for that day. Banov was not prepared for trial. Judge Kennedy expressed his opinion that Banov's failure to prepare for trial constituted a breach of Banov's obligations under the Rules of Professional Conduct, and further indicated his intention to report Banov to the Office of Bar Counsel for investigation. In any event, because no sign language interpreter was available to assist at trial, the case was continued and a new status date was set.

On February 2, Judge Kennedy reported Banov to the Office of Bar Counsel. While Bar Counsel's investigation was pending, White-Pickering, although agreeing with Judge Kennedy's assertion that Banov had acted unethically, equivocated regarding her desire to have Banov continue as her attorney. Because the trial court had not granted his motion to withdraw as counsel, Banov continued to perform the duties of an attorney, albeit in an atmosphere of increasing tension and mistrust.

That same month, February 1995, White-Pickering announced her intention to stop her monthly $200 payments to Banov. Banov has not received any compensation for his representation since January of 1995.

On February 24, 1995, Banov filed a second motion to withdraw, citing among other things a legal conflict of interest that had arisen between Banov and White-Pickering as a result of the investigation by Bar Counsel initiated by the trial court's complaint and the absence of White-Pickering's waiver of that conflict. In the alternative, the motion sought referral to alternative dispute resolution. At a status hearing that day, Judge Kennedy expressed his opinion that it was not in White-Pickering's interest that Banov represent her because of their conflicting interests. Judge Kennedy asked White-Pickering for her position regarding Banov's withdrawal, to which White-Pickering responded that while agreeing with Judge Kennedy that Banov should be investigated by Bar Counsel, White-Pickering feared that she could not afford to retain another attorney to pursue her case against Deafpride. Despite this concern, which he shared, Judge Kennedy permitted Banov to withdraw from the case, and set a new status date of March 17.

On March 16, however, Judge Kennedy sua sponte issued an order vacating his February 24 order permitting Banov to withdraw. Although Judge Kennedy recognized the "clear conflict" between Banov and his client, he wished to rethink the motion because he had failed to consider whether White-Pickering's interest in continuing with the litigation and the difficulty in obtaining substitute counsel under the circumstances would overcome the reasons for allowing Banov to withdraw. Seeking to address the conflict issue, Judge Kennedy ordered White-Pickering to indicate by March 23 her position regarding Banov's motion to withdraw, but further stated that assent to continued representation and waiver of the conflict of interest would be inferred from any failure by White-Pickering to respond to the court's order. White-Pickering opposed Banov's motion to withdraw, but did not respond to Judge Kennedy's specific request about the conflict. Instead, she identified a roster of allegations regarding purported misconduct on Banov's part, and requested that Banov secure at his own expense a sign-language interpreter to conduct any future communication with White-Pickering.³ Banov responded that he could meet her conditions if she would meet his.

On April 6, 1995, White-Pickering and her husband filed for bankruptcy in the United States Bankruptcy Court for the Maryland District. In her petition for bankruptcy, White-Pickering sought to discharge her debt to Banov. Following the bankruptcy petition, in early May Banov supplemented his second motion to withdraw still pending before Judge Kennedy. In his supplement, Banov cited what he characterized as a continued lack of cooperation by White-Pickering, White-Pickering's bankruptcy filing seeking that her debt to Banov be discharged, the absence of any prospect or promise of payment for his past or future services, and White-Pickering's practice of providing Judge Kennedy with all correspondence and communication between Banov and White-Pickering, which Banov felt compromised the confidential nature of the attorney-client relationship and his ability adequately to prosecute White-Pickering's case before Judge Kennedy. With respect to the bankruptcy filing, Banov argued that he had no contractual obligation to represent White-Pickering unless the bankruptcy trustee agreed to cure past defaults in payment and Banov agreed.

The final status conference in the case was held on May 19, 1995. Judge Kennedy orally denied Banov's second motion to withdraw without explanation. Judge Kennedy then set a trial date of September 5. Communications continued between Banov and White-Pickering; generally, these communications were in the nature of White-Pickering's request that Banov further investigate Deafpride's financial resources, and Banov relaying the information he gained.⁴ In the Maryland bankruptcy court, Banov formally opposed White-Pickering's request to discharge her debt to Banov. On July 6, Banov filed a petition for a writ of mandamus with this court, urging the court to determine that Judge Kennedy had exceeded his authority in denying Banov's motions to withdraw. On July 27, Bar Counsel determined, after investigation, that the complaint against Banov initiated by Judge Kennedy's referral was not supported by clear and convincing evidence and issued a decision dismissing the complaint.

By August 4, 1995, Deafpride made a new but again unsuccessful settlement offer, purportedly offering to White-Pickering the bulk of its assets which...