Ledesma et al v. Brahmer et al

Filing 49

ORDER that Mr. Okolo's MOTION to Withdraw as Attorney is held in abeyance. Osorio shall have until 3/6/15 to respond to the motion to withdraw by filing a brief with the Clerk of Court. The Clerk is directed to send a copy of this Order to Ricardo Osorio, 806 Powder Horn Drive, Smyrna, TN 37167. Ordered by Magistrate Judge Thomas D. Thalken. (Copies mailed as directed) (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

ANTONIO LEDESMA, as personal
representative for the estate of
Maria Ledesma (deceased) and as
legal guardian of Nancy Osorio (a
minor),
Plaintiff,

8:13CV310

ORDER

vs.
RICHARD BRAHMER, d/b/a
Brahmer Trucking,
Defendant and
Cross-Claimant,
vs.
RICARDO OSORIO,
Defendant and
Cross-Claim
Defendant.
This matter is before the court on plaintiff’s counsel, Jerome Okolo (Mr. Okolo),
Motion to Withdraw (Filing No. 45). Mr. Okolo seeks to withdraw as counsel for Ricardo
Osorio (Osorio). Mr. Okolo states he cannot represent Osorio after the court’s October
16, 2014, Order, which found Osorio was not the common law spouse of the deceased.
See Filing No. 45 - Motion. Mr. Okolo advises he notified Osorio of this situation and
Osorio waived any objection to any conflict caused by Mr. Okolo’s continued
representation of the plaintiff in this case. Id.; Ex. 1 - Letter to Osorio and Osorio’s
Waiver.
The defendant, Richard Brahmer, objects to the withdrawal. See Filing No. 46 Response. The defendant argues that at the time the Amended Complaint was filed,
Mr. Okolo improperly maintained conflicting roles in this action as he represented
Osorio as a plaintiff and as a defendant and asserted claims against Osorio. Id. The
defendant argues Mr. Okolo may possess information that would otherwise not be
discoverable due to the attorney-client privilege that can be used against Osorio. Id.
The defendant also challenges Osorio’s waiver and argues it remains questionable

whether the waiver was knowing, voluntary, and intelligent because the waiver is in
English and Osorio cannot read English. Id. (citing Osorio Depo. at 8:20-231). The
defendant lastly argues, in the event the court allows withdrawal, the court should
appoint Osorio an attorney at Mr. Okolo’s expense to protect Osorio’s interests. Id.
In reply, Mr. Okolo represents the letter and waiver were explained to Osorio in
Spanish by Oscar Ortiz, a Spanish language interpreter. See Filing No. 48 - Reply;
Filing No. 48-1 - Ortiz Decl.

Mr. Okolo represents Osorio fully understood and

evidenced his assent to the waiver by signing the form attached to the letter. Id. Mr.
Okolo also represents he advised Osorio to contact Osorio’s insurance provider, The
General Insurance Company, as The General has a contractual duty to provide Osorio
a defense in this matter. Id. Mr. Okolo also so informed The General. See Filing No.
48-2 - Letters to The General.
Under the court’s local rules,
An attorney of record may withdraw upon showing good
cause, but is relieved of duties to the court, the client, and
opposing attorneys only after (1) filing a motion to withdraw,
(2) providing proof of service of the motion on the client, and
(3) obtaining the court’s leave to withdraw.
NEGenR 1.3(f).
The court recognizes Mr. Okolo previously represented Osorio as the plaintiff and
Mr. Okolo, through his representation of the current plaintiff, has now filed a claim
against Osorio as the defendant.

However, at this time, there is no basis to find

Osorio’s waiver of this conflict is anything but knowing, voluntary, and intelligent. Mr.
Okolo’s letter and the waiver were explained to Osorio in Spanish. See Filing No. 48 Reply; Filing No. 48-1 - Ortiz Decl. Mr. Okolo also served Osorio the present motion.
Nevertheless, in the interest of ensuring Osorio’s rights are protected in this matter, the
court will afford Osorio an opportunity to respond to the motion, file a motion to
disqualify, and/or obtain new counsel. The court declines the defendant’s invitation to
appoint Osorio counsel.
IT IS ORDERED:
1.
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Mr. Okolo’s Motion to Withdraw (Filing No. 45) is held in abeyance.

“Q. Can you read English? A. No. Q. Can you speak any English? A. Not too much. A little.”
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2.

Osorio shall have to on or before March 6, 2015, to respond to the

motion to withdraw by filing a brief with the Clerk of the Court.

If no response is

received or if counsel for Osorio has not entered an appearance by March 6, 2015, the
motion to withdraw will be granted. If the motion to withdraw is granted and counsel has
not entered an appearance, Osorio will be considered proceeding pro se.
3.

The Clerk of the Court is directed to send a copy of this Order to Osorio at:
Ricardo Osorio
806 Powder Horn Drive
Smyrna, TN 37167

4.

Mr. Okolo is directed to contact Osorio and provide the necessary

translation of this Order to Osorio. Mr. Okolo shall file a notice with the court indicating
he complied with this directive.

Dated this 21st day of January, 2015.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

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