Ceglia v. Zuckerberg et al
RESPONSE in Opposition re 579 MOTION to Withdraw as Attorney NOTICE OF MOTION filed by Paul D. Ceglia. (Attachments: # 1 Certificate of Service)(Boland, Dean)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
PAUL D. CEGLIA,
Civil Action No. : 1:10-cv-00569-RJA
RESPONSE IN OPPOSITION TO
DEFENDANTS’ REQUEST FOR
DISCLOSURE OF IN CAMERA
MARK ELLIOT ZUCKERBERG, Individually, and
The undersigned filed a motion to withdraw as counsel. Doc. No. 579. That
motion did not indicate that Plaintiff consented to the motion. Id. Coincident with
that filing, an in camera submission was made to the court containing justifications
for the motion that affect Plaintiff’s rights, involve attorney/client communications
and content that is the product of attorney work product deliberations. Because the
contents of this in camera submission would prejudice Plaintiff if disclosed, the local
rule was used to communicate this information.
This submission is specifically
authorized by the local rules. Loc.R. 83.2(d).
Defendants filed a response to that motion noting they were unopposed to the
motion provided it produced no delay. That lack of opposition to the granting of the
motion contained a request by Defendants for disclosure, either publicly on the
docket or to Defendants exclusively, of the in camera submission. Id.
On November 27, 2012, the undersigned filed a supplement to the previous in
camera submission with the court. That same day the court held oral argument on
the motion by phone conference. The phone conference was attended by all current
counsel and Plaintiff. During that phone conference the court noted the filing of the
second in camera submission. During that phone conference, Plaintiff made clear
his lack of consent to the undersigned’s withdrawal.
During the phone conference, the undersigned pointed out that the
Defendants’ lack of opposition to the withdrawal motion certainly “diminishes any
interest they would have in disclosure of the in camera submissions.”
noted that fact as the phone conference continued. It was only later, after Plaintiff
affirmatively stated his lack of consent to the motion, that Defendants sought and
received permission to withdraw their lack of opposition to the motion citing the
potential for delay occasioned by Plaintiff’s lack of consent to the withdrawal.
Defendants’ claimed potential for delay was the speculation that this court
would order oral argument on any of the pending motions to dismiss and, if such an
oral argument was ordered and, if the motion to withdraw was granted, Mr.
Argentieri may not be able to be lead counsel for that argument and a delay might
be caused by Plaintiff’s need to seek new lead counsel. As the court can see, this
claimed potential for delay is stacked speculation at this point. Defendants have
already once requested oral argument on the pending motions to dismiss which the
court has denied.
Plaintiff does not believe there is any need to delay this case further by
scheduling oral argument on the motions to dismiss.
Both motions have been
extensively briefed and both are supported by expert reports and expert depositions
comprising thousands of pages. Defendants have inconsistently sought to prevent
delays of these proceedings and then, at other times, sought delays for their benefit.
This case is fully briefed and ready for a decision by the court. Any oral argument
delay proposed by the Defendants is inefficient and unjustified at this point.
OUTSOURCING OF ETHICAL CONCERNS IS INAPPROPRIATE
Even if Defendants were provided copies of the in camera submissions, the
only possible use of those documents would be to support their opposition to the
motion to withdraw. As counsel for Plaintiff, the undersigned cannot subordinate
his personal and professional opinion regarding his inability to properly represent a
client to the opinion of another lawyer, especially one opposing in this matter. It
may well be that opposing counsel regards the ethical considerations now
confronting the undersigned as insufficient to cause an inability to effectively
However, opposing counsel faces no risk of disciplinary
proceedings or malpractice lawsuits for advancing such an opinion on Plaintiff’s
counsel’s behalf. Meanwhile, the undersigned has to consider those very factors and
make a sober assessment which is personal to the undersigned and his professional
responsibility to Plaintiff.
(d) Attorney Withdrawal. An attorney who has appeared as attorney of record may
withdraw only by Court order, or by stipulation, in accordance with the following:
(1) An attorney of record may file and serve a Motion to Withdraw as
Attorney. If the attorney wishes to submit his or her reasons for withdrawal in
camera, he or she must so state in the Notice of Motion. The moving attorney then
must submit any in camera document(s) to the Judge, and must serve such
documents on his or her client. The Court may grant the motion upon a finding of
(2) An attorney may withdraw upon a stipulation endorsed by the client and
by all counsel of record and unrepresented parties in the case. The stipulation shall
be effective when signed by the Clerk of Court.
The rule above does not further refine what may be submitted to the court.
The case law does.
DEFENDANTS' INSISTENCE ON DISCLOSURE
IS CONTRARY TO PRACTICE
Defendants' seek disclosure of the in camera submissions authorized by the
local rule above. That disclosure is contrary to the practice of other courts in the
“On the contrary, it is normal practice and there is no impropriety [not
disclosing in camera submissions connected with attorney withdrawals].’
Holding AG v. Nobel Biocare Investments, N.V., 759 F.Supp.2d 289, 293 (S.D.N.Y.,
2010). See also, Weinberger v. Provident Life and Casualty Insurance Company, No.
97 Civ. 9262(JGK), 1998 WL 898309, at *1 (S.D.N.Y. Dec. 23, 1998).
"However, it is appropriate for a Court considering a counsel's motion to
withdraw to consider in camera submissions in order to prevent a party from being
prejudiced by the application of counsel to withdraw." Id. See also, Rophaiel v.
Alken Murray Corp., 94 Civ 9064, 1997 WL 3274, at *1 (S.D.N.Y. Jan. 3, 1997).
THE STANDARD IS PREJUDICE TO PLAINTIFF
The standard, therefore, is "prejudice to the client" whose lawyer is seeking
withdrawal not the need of opposition counsel to see the reasons for the withdrawal
being sought. The in camera submission rule also avoids potential ethical issues for
the attorney seeking withdrawal.
Disclosure to opposing counsel of reasons for
seeking to withdraw as counsel could “pos[e] ethical problems” and thus indicating
that “the proper practice for an attorney in applying for an order relieving him of
responsibility in a case is ... to submit supporting documents to the trial court for
inspection in camera." Ficom Int'l, Inc. v. Israeli Export Inst., 87 Civ. 7461, 1989
WL 13741, at *3 n. 1 (S.D.N.Y. Feb. 10, 1989).
CLIENT'S LACK OF CONSENT TO WITHDRAWAL
NOT A FACTOR IN DISCLOSURE DECISION
Near the beginning of the recent November 27, 2012 phone conference, the
court noted that Defendants' then filed response to the motion to withdraw
indicated no opposition.
As the phone conference developed, Defendants' voiced
their desire to withdraw their lack of opposition to the withdrawal based entirely on
the lack of Plaintiff's consent to it.
Plaintiff's lack of consent is no basis for the
court to grant Defendants' request for disclosure of the in camera submissions
which could prejudice Plaintiff.
"Mr. Kantor requested, over the objection of his clients, that he be
permitted leave to withdraw as Petitioners' counsel pursuant to Local Rule 3(c). Mr.
Kantor submitted for in camera review documents in support of his motion to
withdraw, and the Court accepted those documents for in camera review
over Respondents' objection."
Coppola v. Charles Schwab & Co., 1991 WL
180345 (S.D.N.Y.), 1 (S.D.N.Y.,1991). Both the client’s not consent and the opposing
party’s objection are insufficient to justify disclosure of the in camera submissions,
PREJUDICE TO PLAINTIFF ARISES
NO MATTER THE WITHDRAWAL DECISION
The pending motion to withdraw merits one of two orders, granted or denied.
If the court grants the motion, the disclosure of the in camera submissions provides
Defendants a basis to attempt to dislodge the next counsel for Plaintiff for litigation
If the court denies the motion, the disclosure of the in camera
submissions now provides improper insight into the inner-workings of Plaintiff and
Plaintiff's counsel's relationship and another litigation strategic advantage.
time a party can learn of the circumstances existing on the opposition's team that
are so severe they rise to the level of compelling attorney withdrawal, it is a clear
Meanwhile, Defendants‘ failed to articulate any substantial
prejudice to them absent disclosure.
For the foregoing reasons, Mr. Ceglia respectfully requests this court deny
Defendants’ request to disclose the in camera submissions associated with Plaintiff
counsel’s motion to withdraw.
Paul A. Argentieri
188 Main Street
Hornell, NY 14843
1475 Warren Road
Lakewood, Ohio 44107