After carefully considering the papers submitted and the pertinent law the
application is disposed of as follows:
Fabiani Cohen & Hall, LLP, Counsel for the Defendants, asks to be relieved
as Counsel pursuant to Civil Practice Law and Rules §321, based upon what
may become an adversarial relationship with a long standing client, Columbus
Construction Corp., the company contractually obligated to appear and defend the
State of New York and the New York State Thruway Authority relative to this
Labor Law claim. Counsel had been substituted as counsel for defendants by a
Substitution of Attorney form filed on November 9, 2005. The alleged adversity
stems from failure on the part of Columbus to pay attorney’s fees in this
and in other cases presently pending in the Court of Claims and in the State
The Assistant Attorney General’s Affirmation in Opposition confirms that
there is an ongoing fee dispute between Fabiani Cohen & Hall, LLP and
Columbus, and attaches a letter that it directed to Columbus on June 1, 2006
reminding the company of its continued obligation to appear and defend the State
of New York and the New York State Thruway Authority. [Affirmation in Opposition
by Gwendolyn Hatcher, Assistant Attorney General, Exhibit 5]. She also argues,
however, that non-payment of fees alone is insufficient to entitle an attorney
to withdraw from representation.
There must be a showing of good cause and reasonable notice before an attorney
will be permitted to terminate the attorney-client relationship. See e.g.
J.M. Heinike Associates, Inc. v Liberty Nat. Bank, 142 AD2d 929
(4th Dept 1988). What constitutes good cause is not an objective determination,
but rather lies within the sound discretion of the trial court. See e.g.
People v Salquerro, 107 Misc 2d 155 (Sup Ct, NY County, 1980).
Permissive withdrawal is authorized when the client: “Deliberately
disregards an agreement or obligation to the lawyer as to expenses or
fees.” Code of Professional Responsibility DR 2- 110(C)(1)(f); see
also 22 NYCRR §1200.15 (c)(1)(vi). By the same turn, however, it is
well settled that nonpayment of counsel fees alone does not entitle an attorney
to withdraw from representing a client. See generally Cashdan v
Cashdan, 243 AD2d 598 (2d Dept 1997); George v George, 217 AD2d 913
(4th Dept 1995); cf. Tartaglione v Tiffany, 280 AD2d 543 (2d Dept
2001). Indeed, in a case where discovery had been completed and a note of issue
had been filed, the Court would not permit the attorneys for a defendant to
withdraw because it
“. . . would further delay the resolution of . . . [the] action . . .
and would not promote judicial economy.”
George v George
, at 913; see also Torres v
, 169 AD2d 829 (2d Dept 1991).
consideration still is whether the client’s conduct has rendered it
unreasonably difficult for counsel to carry out its obligation of effective
representation. DR2-110 (C) (1)(d); see also
22 NYCRR §1200.15
What is pertinent here, however, is that the entities for which Counsel has
filed an appearance in the Court of Claims are the State of New York and the New
York State Thruway Authority, not Columbus.
As noted by the Assistant Attorney General, it is Columbus, the construction
contractor herein, who owes the defense to the State of New York and the Thruway
Authority pursuant to its contract. [Affirmation in Opposition by Gwendolyn
Hatcher, Assistant Attorney General, Exhibit 1]. Coverage has not been
disclaimed. Indeed the Attorney General’s Office, otherwise charged
statutorily with the duty to defend the State of New York, was provided with
notice that York Claims Service, the authorized claims representative on behalf
of Columbus Construction Corp., had agreed to defend the State and to indemnify
it up to a given self-insured retention dollar amount. [ibid.
Excess coverage was to be provided by Arch Insurance Company, Columbus’
general insurance carrier. [id.
No insurance company has been
If coverage issues
develop, a declaratory judgment action is the appropriate vehicle for resolving
the matter. Similarly, a dispute concerning fees that is completely ancillary
to the claim before this Court, does not establish that Counsel cannot represent
the entities it has appeared for: the State of New York and the New York State
Thruway Authority. There is no indication that Counsel has sought compensation
from other sources. See Cullen v Olins Leasing, Inc.
In view of the foregoing, the Court finds that there has not been a showing of
good cause to be relieved. Accordingly, Counsel for the Defendants’
application (M-71632), brought by Order to Show Cause is in all respects