Hammond v. TJ Litle and Co., Inc., Civ. A. No. 88-2450-K.

• Decision Date: 16 December 1992
• Docket Number: Civ. A. No. 88-2450-K.
• Citation: 809 F. Supp. 156
• Parties: Scott P. HAMMOND, Plaintiff, v. T.J. LITLE AND COMPANY, INC. and Thomas J. Litle, Defendants.
• Court: U.S. District Court — District of Massachusetts

809 F. Supp. 156

Scott P. HAMMOND, Plaintiff, v. T.J. LITLE AND COMPANY, INC. and Thomas J. Litle, Defendants.

Civ. A. No. 88-2450-K.

United States District Court, D. Massachusetts.

December 16, 1992.

Scott P. Hammond, pro se.

James W. Nagle, Goodwin, Proctor & Hoar, Boston, MA, for defendants.

MEMORANDUM AND ORDER

KEETON, District Judge.

Hill & Barlow, Michael D. Weisman, and Robert A. Bertsche (collectively, "Hill & Barlow") counsel for plaintiff Scott P. Hammond ("Hammond"), have moved for leave to withdraw, alleging that Hammond failed to cooperate and disregarded fee obligations to the firm. Hammond opposes the motion.^*

For the reasons set forth below, I conclude that Hill & Barlow must be permitted to withdraw.

I. Introduction

The opposing evidentiary submissions and the findings and conclusions to be drawn from them are sharply contested.

Hammond retained Hill & Barlow in August of 1990. At that time, Hammond countersigned and returned a copy of a letter addressed to him by Hill & Barlow, specifying the financial terms of the retainer. (Letter from Weisman to Hammond, dated August 16, 1990, Exh. A to Second Weisman Aff.) By countersigning, Hammond indicated that he had read and agreed to the terms. Id. at 1. Under the agreement, Hammond was to pay a $10,000 retainer by August 28, 1990 to be applied to charges. The letter also notified Hammond that he would be billed "on a regular basis, normally each month, for both fees and disbursements." Id. at 2. Regarding the payment schedule, the countersigned letter states:

We expect our clients to make payments promptly on receipt of our statements, and in any event within 30 days of the invoice date.... I understand that there may be occasional difficulties in making payment within 30 days, and I will do my best to accommodate your needs in that regard. I should warn you in advance, however, that the firm's fiscal year ends October 31, and I will be constrained to insist that you have no outstanding balance as of that date.

Id.

As of March 1991, Hammond was in arrears to Hill & Barlow under the August, 1990 fee agreement. (Second Weisman Aff. ¶ 4.) Hammond and Hill & Barlow then revised their agreement for payment of amounts past due, as well as amounts to be incurred. (Letter from Weisman to Hammond, dated March 28, 1991, Exh. B to Second Weisman Aff.)

Pursuant to the new fee agreement, Hammond was to make payments on March 31, 1991 and April 30, 1991. Hammond made the payment due on March 31 a few days late. (Second Hammond Aff. ¶ 8; Second Weisman Aff. ¶ 5.) Hammond made no payment on April 30. (Second Weisman Aff. ¶ 5.) On June 24, 1991, Hammond paid 25% of the amount he had agreed to pay on April 30. Id. In September, 1991, Hammond made a "small payment" to Hill & Barlow that was returned by the bank for insufficient funds. (Second Hammond Aff. ¶ 12.) Hammond has made no payment to Hill & Barlow since October 1991. (Second Weisman Aff. ¶ 5.) According to Hammond, although fees have been incurred, he has not been billed for services rendered since November, 1991. (Second Hammond Aff. ¶ 44.)

Hammond asserts that Hill & Barlow expressly waived the time-performance condition of the March 28, 1991 fee agreement in a telephone conversation on or about April 18, 1991. (Second Hammond Aff. ¶ 9.) Furthermore, Hammond avers, after this alleged waiver, "my financial obligation to the firm was simply to pay the firm, for valid fees and expenses incurred in connection with services rendered, as promptly as I was able." (Second Hammond Aff. ¶ 10.) Hammond's bare assertion of these conclusions is not evidence that will support a finding of waiver, and Hammond does not in any other way proffer evidentiary support for his claim of waiver. Hill & Barlow denies that it waived the time-performance condition of the March 28, 1991 fee agreement and states that Weisman continued to bill Hammond on a monthly basis. Also, Hill & Barlow says Weisman, by telephone, encouraged Hammond to pay his legal bills "as promptly as possible." (Second Weisman Aff. ¶ 6.)

After March 31, 1991, Weisman and Hammond had several conversations about Hammond's failure to pay. (Second Hammond Aff. ¶¶ 11, 13, 14, 15, 17, 18; Second Weisman Aff. ¶ 6.) The parties dispute the content of these discussions. Hammond avers that he disclosed his precarious financial situation to Weisman and offered to seek new counsel, but was discouraged from doing so. (Second Hammond Aff. ¶¶ 11, 18.) Hammond also asserts that although he "felt bad" about his inability to pay Hill & Barlow, he never "stated or otherwise recognized" that he had violated his financial obligations to the firm, nor did he "state or otherwise acknowledge" that he would not object to Hill & Barlow's withdrawal from the case. (Second Hammond Aff. ¶¶ 14, 15, 16, 17.)

Weisman's affidavit flatly contradicts Hammond's. Weisman avers that Hammond did not fully disclose his inability to pay Hill & Barlow, acknowledged that he had violated his financial obligations and promised to pay, told Weisman that he would not object if the firm sought leave to withdraw, and expressed his satisfaction with the work Hill & Barlow had done. (Second Weisman Aff. ¶¶ 6, 7, 8, 9.)

Hammond asserts that he is now able to resume payments to Hill & Barlow for past and future legal costs. (Hammond Aff. ¶ 32-34; Second Hammond Aff. ¶ 45.) His affidavit, however, makes no suggestion that he is able and willing to pay immediately the charges for all services performed before this date.

The case was scheduled for trial on January 27, 1992. Also in January, 1992, Hill & Barlow conducted settlement negotiations on Hammond's behalf. The court granted a continuance because the parties reported that the case was virtually settled. Negotiations failed, however, and the litigation is still pending. A new trial date has not been set, and no oral or written reports are due.

The record contains conflicting sworn statements about the alleged breakdown in the attorney-client relationship from a date preceding the January trial date until June, 1992, when the motion to withdraw was filed. Hill & Barlow aver that Hammond: (1) failed to cooperate with Hill & Barlow, making himself unavailable at critical junctures in case development (Second Weisman Aff. ¶¶ 10, 11); (2) expressed great dissatisfaction with counsel's representation (Second Weisman Aff. ¶ 12); (3) implicitly threatened to sue Hill & Barlow (Second Weisman Aff. ¶ 16); and (4) represented that he would assent to counsel's withdrawal, up until the day the motion was filed (Second Weisman Aff. ¶ 13).

Hammond disputes Hill & Barlow's factual assertions and characterizations, averring that he is well-satisfied with Hill & Barlow's representation and wishes it to continue. (Hammond Aff. ¶¶ 35, 36; Second Hammond Aff. ¶ 30.) According to Hammond, he has been cooperative with counsel, kept appointments, and returned calls promptly. Any unavailability, he contends, was the result of misunderstandings, and was not intentional. (Second Hammond Aff. ¶¶ 20, 21, 22, 25.) Hammond admits that he once expressed dissatisfaction with the manner in which Hill & Barlow handled an aspect of the case (Second Hammond Aff. ¶ 29). On the same day, however, Hammond avers, he informed Hill & Barlow that he "respected the firm's counsel, and remained confident in the firm's ability to represent him effectively, through trial and beyond, without unreasonable difficulty, and desired the firm's continued representation in the case." (Second Hammond Aff. ¶ 30.)

During the week before this motion was filed, Hammond wrote a letter to Hill & Barlow, dated June 4, 1992. (Second Hammond Aff. ¶ 31; Second Weisman Aff. ¶ 13). Hill & Barlow aver that in this letter Hammond agreed to release Hill & Barlow if the firm wished to withdraw. (Second Weisman Aff. ¶ 13.) Hammond, however, disputes this interpretation of his letter, saying that he used the word "release" with the "intention and understanding that I would receive consideration, to be negotiated if I discharged Hill & Barlow to my great detriment." (Second Hammond Aff. ¶ 31.) Neither party has submitted the disputed letter to the court.

Many other allegations and counter-allegations appear in the record. Conflicting details of these submissions need not be resolved by the court at this time, however, for the reasons explained below.

II. Standard for permitting counsel to withdraw.

The relationship between attorneys and their clients is contractual. Nevertheless, the terms and effect of a severance of the relationship do not depend solely on findings of breach, or who broke the contract first, or whose breach was more substantial. An attorney who agrees to represent a client in a court proceeding assumes a responsibility to the court as well as to the client. Both attorney and client agree to a relationship between them that bears also upon their respective obligations to the court. Implicit in the attorney-client relationship are mutual obligations of good faith and fair dealing. The professional relationship, as well as the decision to dissolve it, must be guided, and in some instances is governed by, the court's rules of professional conduct and by the canons and rules of the legal profession applicable to members of the Bar admitted to practice before the court.

The Local Rules of the United States District Court for the District of Massachusetts require that attorneys appearing before this court comply with "the ethical requirements and rules concerning the practice of law of the Commonwealth of Massachusetts," including "those canons and rules adopted by the Supreme Judicial Court of Massachusetts, embodied in Rules 3:05, 3:07, and 3:08 of said court...." LR, D.Mass. 83.6(4)(B) (September 1, 1990, rev. 1/91). Rule 3:07 contains canons and disciplinary rules based mainly on the American Bar Association "Code of Professional Responsibility and Canons of Judicial Ethics" (1970).

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