Cardoza v. Tann et al
Filing
50
ORDER Denying 47 Motion to Appoint Counsel signed by Chief Judge Ralph R. Beistline on 07/28/2014. (Flores, E)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
LAWRENCE PEPE CARDOZA,
Case No. 1:11-cv-01386-RRB
Plaintiff,
ORDER DENYING
MOTION AT DOCKET 47
vs.
M. TANN, et al.,
Defendants.
At Docket 47 Plaintiff Lawrence Pepe Cardoza, appearing pro se, filed a Motion for
Appointment of Counsel. The record in this case indicates that on January 30, 2014, at the
request of Cardoza, the Court appointed Lori Rifkin as pro bono counsel with the consent
of counsel.1 Subsequently, on June 26, 2014, at the request of Cardoza, with the
concurrence of counsel, the Court terminated that appointment.2
The availability of pro bono counsel to represent indigent prisoners is limited. In this
case, the Court appointed counsel; however, Cardoza was dissatisfied with appointed
counsel. Cardoza’s primary complaints were: (1) an allegation counsel was disclosing
confidential attorney-client information to others; and (2) not withstanding that counsel was
appointed pro bono, she requested Cardoza agree to a contingency fee agreement.
1
Docket 29.
2
Docket 43.
ORDER DENYING MOTION AT DOCKET 47
Cardoza v. Tann, 1:11-cv-01386-RRB – 1
Attached to Cardoza’s motion is a letter from counsel to Cardoza dated April 21, 2014. In
that letter counsel noted: (1) the preceding Friday Cardoza refused to meet with her;
(2) counsel had engaged in telephone conversations with the attorney for CDCR;
(3) advising Cardoza that it made sense to send a demand letter after determining the
appropriate amount; and (4) a request to clarify a 30% contingency fee agreement in the
event that there was a lump sum offer instead of an offer that did not separate attorney’s
fees from damages.3
The record in this case indicates that Cardoza does not understand the role and
function of counsel. Furthermore, Cardoza does not understand the limitations on either
the authority of the Court to compel appointed counsel to provide legal services without
compensation or Cardoza’s right to the assistance of counsel in order to effectively litigate
his claims.
Nothing in the documents submitted to this Court in support of Cardoza’s motions
indicates that counsel disclosed any confidential attorney-client information. The fact that
counsel discussed possible settlement negotiations with opposing counsel or interviewed
other inmates concerning the facts underlying Cardoza’s case is not only not indicative of
a violation of the attorney-client privilege, but it is wholly within the scope of the duties and
functions of counsel. Contrary to what Cardoza (and apparently his mother) may believe,
no person is entitled to legal representation without payment, except to the extent that
counsel is willing to provide those services. It is not only not uncommon for counsel who
3
Docket 47, p. 169 (first page), p.156 (second page).
ORDER DENYING MOTION AT DOCKET 47
Cardoza v. Tann, 1:11-cv-01386-RRB – 2
initially agrees to appear on a pro bono basis to recover his or her attorney’s fees from the
defendants upon the successful conclusion of the case, in the experience of this Court
seldom, if ever, does that occur. In this case, all counsel requested was an agreement to
receive a percentage of the settlement recovery in the event that the case was settled
without trial. In the event that the case should go to trial and result in a judgment favorable
to Cardoza, counsel would have been entitled to recover attorney fees in addition to the
damages awarded, the fact the representation was on a pro bono basis notwithstanding.4
In this case, counsel requested nothing more than an agreement to recover fees in the
event that the case settled without an allocation between fees and damages.
While this Court is not unmindful of the value of the assistance of counsel, both to
Plaintiff and the Court itself, the Constitutional right of access to the courts does not include
the right to litigate those claims effectively once filed with the court.5 Here, the Court
appointed counsel whose assistance Cardoza not only found to be unsatisfactory, but with
whom Cardoza unequivocally refused to cooperate. Ms. Rifkin was clearly qualified and
capable of providing adequate legal representation. It also appears that counsel was
working toward a result that would have been beneficial to Cardoza. Cardoza has not
identified any counsel who might be agreeable to representing him. Indeed, given
4
See 42 U.S.C. § 1997e(d).
5
See Lewis v. Casey, 518 U.S. 343, 354 (1996); Madrid v. Gomez, 190 F.3d
990, 995 (9th Cir. 1999).
ORDER DENYING MOTION AT DOCKET 47
Cardoza v. Tann, 1:11-cv-01386-RRB – 3
Cardoza’s history with prior counsel, it is highly unlikely that any attorney would be
agreeable to represent him.
The fact that Cardoza finds himself once again appearing pro se is the product of
his own choice. The bottom line is that this Court lacks authority to compel any attorney to
provide Cardoza with legal representation under the terms and conditions that he appears
to expect.
Accordingly, the Motion to Appoint Counsel at Docket 47 is DENIED.
IT IS SO ORDERED this 28th day of July, 2014.
S/ RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE
ORDER DENYING MOTION AT DOCKET 47
Cardoza v. Tann, 1:11-cv-01386-RRB – 4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?