Holcombe v. US Airways Group, Inc. et al

Filing 215

ORDER: For the reasons set forth in the attached document, I conclude that plaintiff Holcombe justifiably terminated her former counsel for cause; I therefore deny the attorney's motion for compensation in quantum meruit (docket entry 196 ) and grant the plaintiff's motion to extinguish the attorney's charging lien (docket entry 185 ). Ordered by Magistrate Judge James Orenstein on 3/29/2017. (Orenstein, James)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------------X
FOUGERE HOLCOMBE,
Plaintiff,
- against US AIRWAYS GROUP, INC., et al.,
Defendants.
----------------------------------------------------------------X

MEMORANDUM
AND ORDER
08-CV-1593 (SLT) (JO)

James Orenstein, Magistrate Judge:
Non-party attorney Vladimir Matsiborchuk ("Matsiborchuk") seeks to enforce a charging
lien against his former client, plaintiff Fougere Holcombe ("Holcombe"); she, in turn, seeks to
extinguish that lien on that ground that she discharged Matsiborchuk for cause. See Docket Entry
("DE") 114 (Matsiborchuk's original motion) ("MM I"); DE 196 (Matsiborchuk's renewed letter
motion) ("MM II"); DE 185 (Holcombe's motion). Upon a referral from the Honorable Sandra L.
Townes, United States District Judge, I now deny Matsiborchuk's motion for compensation, and
grant Holcombe's motion to extinguish his charging lien. 1
I.

Background
Holcombe, initially represented by Matsiborchuk, filed suit in 2008 against her former

employer, US Airways, and her union, the International Association of Machinists and Aerospace
Workers, for disability-based discrimination and retaliation in violation of federal, state, and
municipal law. DE 1 (Complaint). Matsiborchuk continued to represent Holcombe for several years,
although the timing and circumstances of the ending of that representation is in dispute. The record
is clear, however, that in a letter dated December 24, 2013, written by her current counsel Raymond

The court referred the motions to me for decision rather than for a report and recommendation.
Order dated March 28, 2017. Such a referral is consistent with the Federal Magistrates Act, as it does
not require me to decide any of the types of motions specified in 28 U.S.C. § 636(b)(1)(A). However,
because the instant order is dispositive as to Matsiborchuk's lien against Holcombe, it is subject to de
novo review should any timely objections be properly filed. See Fed. R. Civ. P. 72(b)(3).

1

Nardo ("Nardo"), Holcombe informed Matsiborchuk that she had discharged him for cause and
asked him to execute a substitution of counsel form that she had already signed. See DE 187
(memorandum supporting Holcombe's motion) ("H Memo. I") at 2-3; MM I, Ex. 3.
In the letter discharging Matsiborchuk for cause, Holcombe cited several reasons for her
decision. As Nardo described Holcombe's concerns:
[Y]ou have filed documents in her case without her approval and consent, … you
have suggested that she obtain a Law Guardian because she is incapable of making
decisions due to some incapacity you diagnosed based on your alleged training in the
Soviet Union, … you have accused Ms. Holcombe of colluding with courts against
you, and you have asked her to pay for your wife's services as your legal assistant.
[Holcombe] also had to pay a lien of $2,000 from a personal injury case to an
attorney you referred for expenses allegedly incurred in this federal matter.
MM I, Ex. 3.
Over a month after Holcombe informed Matsiborchuk of his discharge for cause, on
January 27, 2014, Matsiborchuk responded by claiming that he had already withdrawn from
representation in October 2012. H Memo. I at 3; MM I, Ex. 4. He refused to execute the
substitution form and notified Holcombe that he would pursue a demand for the reasonable value
of his services rendered. Id. Holcombe filed a notice of consent to change counsel that same day,
DE 110, and the court acknowledged the substitution by Order dated February 6, 2014.
On February 25, 2014, Matsiborchuk filed a motion seeking several forms of relief:
disqualification of the magistrate judge then assigned to the case, a retaining lien in the amount of
$4,398.58 for costs and expenses, and a charging lien of $184,128.70 for attorney's fees under the
doctrine of quantum meruit. DE 114. The court referred the motion to the magistrate judge on March
13, 2014. DE 118. After engaging in settlement negotiations that failed to resolve the dispute, the
magistrate judge determined that her recusal was not warranted for the reasons Matsiborchuk had
advanced, but nevertheless determined sua sponte that her participation in settlement discussions
required her recusal from the fact-finding that would be required to resolve the request for a

2

charging lien. See DE 134. The matter was then reassigned to me on September 26, 2014. DE 134.
On September 30, 2014, the court denied Matsiborchuk's remaining requests for relief: the request
for a retaining lien was denied outright, 2 and the request for a charging lien was denied as premature
without prejudice to renewal upon a determination as to whether he was fired for cause following
resolution of the underlying litigation. DE 136.
Holcombe later settled with the defendants, and the court approved the stipulation of
dismissal on January 28, 2016. DE 174. On April 12, 2016, Holcombe asked for leave to seek relief
as to her fee dispute with Matsiborchuk. DE 175. She filed her fully briefed motion to extinguish
Matsiborchuk's charging lien on August 24, 2016. The submissions included the following
materials: 3
•

Holcombe's notice of motion, DE 185;

•

Nardo's supporting declaration, with exhibits, DE 186 ("Nardo Decl.");

•

Holcombe's supporting memorandum, DE 187 ("H Memo. I");

•

Matsiborchuk's affirmation in opposition, with exhibits, DE 188 ("Opp. I");

•

Matsiborchuk's declaration with exhibits, DE 189 ("M Decl."); and

•

Holcombe's reply memorandum and declaration, DE 190 ("Reply").

By Order dated November 22, 2016, I scheduled an evidentiary hearing for January 18, 2017,
on the issue of whether Holcombe terminated Matsiborchuk for cause. On January 16, 2017, two

Although the denial of the retaining lien required Matsiborchuk to turn over the case file to
successor counsel immediately, Matsiborchuk did not do so. Instead, he filed a motion for
reconsideration that the court denied on October 21, 2014. See DE 137; DE 138. Even after the
denial of reconsideration, he ignored repeated requests from Nardo to produce the file. See DE 139.
Instead, it took three more court orders, culminating in a warning that the next step would be an
order to show cause why he should not be adjudged in contempt of this court's lawful authority,
before Matsiborchuk finally allowed Nardo to retrieve his client's files on November 5, 2014. See
Orders dated October 30, November 3, and November 4, 2014; DE 145; see also H Memo. I at 3.

2

3

I cite the sealed, unredacted versions; the parties also filed redacted versions on the public docket.
3

days prior to the hearing, Matsiborchuk re-filed his original motion to withdraw from 2014, and
stated that he was thereby renewing his charging lien and motion for compensation. DE 196.
The next day, on the eve of the hearing, Matsiborchuk filed a motion to disqualify Nardo on
the basis of an alleged conflict of interest. DE 201. On January 18, 2017, I proceeded with the
hearing as scheduled. At the start of the hearing, I heard argument on the motion to disqualify and
concluded that the alleged conflict of interest was one that Holcombe could and did knowingly
waive; I therefore denied the motion. Holcombe testified on direct examination, but Matsiborchuk
required additional time to complete his cross-examination, and I scheduled the hearing to continue
on February 3, 2017. See DE 202 (minute order); DE 212 (transcript of hearing dated Jan. 18, 2017)
("Tr. I").
On February 1, 2017, two days before the hearing was to resume, Matsiborchuk filed a
motion to disqualify me, vacate my rulings at the hearing and subsequent orders, and reassign the
case to a different judge. DE 204. At the outset of the continued hearing on February 3, 2017, I
denied that motion. Matsiborchuk then proceeded with his cross-examination of Holcombe, but was
unable to complete it in the allotted time. I therefore scheduled the conclusion of the hearing for
February 24, 2017. See DE 205 (minute order); DE 213 (transcript of hearing dated Feb. 3, 2017)
("Tr. II").
Once again, two days before the hearing was to resume, on February 22, 2017, Matsiborchuk
moved to disqualify me (and to call me as a witness), and also to transfer this action to another
district court. DE 206. I denied the motion by Order dated February 23, 2017. Later the same day,
Matsiborchuk filed a letter addressed to the court's Chief Judge asking her to transfer the matter to
another district court. DE 207. The Chief Judge, having no authority over this case, properly took
no action, but in an abundance of caution I consulted with her, and confirmed that she did not wish

4

to intervene, before proceeding with the conclusion of the hearing on February 24, 2017. 4 At the
conclusion of Holcombe's testimony, both sides rested; notably, Matsiborchuk himself did not
testify in his own behalf or to impeach Holcombe. At the close of the hearing, I invited each side to
submit a post-hearing brief by March 27, 2017. See DE 208 (minute order); DE 214 (transcript of
hearing dated Feb. 24, 2017) ("Tr. III"). Holcombe timely submitted her post-trial brief on March
27, 2017; Matsiborchuk belatedly submitted his on March 28, 2017. See DE 209 ("H Memo. II"); DE
211 ("Opp. II"). 5
II.

Discussion
A.

Applicable Law

Under New York law, "'notwithstanding the terms of the agreement between them, a client
has an absolute right, at any time, with or without cause, to terminate the attorney-client relationship
by discharging the attorney.'" Louima v. City of New York, 2004 WL 2359943, at *59 (E.D.N.Y. Oct. 5,
2004) (quoting Campagnola v. Mulholland, Minion & Roe, 76 N.Y.2d 38, 43 (1990)), aff'd sub nom, RoperSimpson v. Scheck, 163 F. App'x 70 (2d Cir. 2006). An attorney who is discharged without cause
before a case ends "may recover either (1) in quantum meruit, the fair and reasonable value of the
services rendered, or (2) a contingent portion of the former client's ultimate recovery, but only if
both of the parties have so agreed." Universal Acupuncture Pain Servs., P.C. v. Quadrino & Schwartz, P.C.,
370 F.3d 259, 263 (2d Cir. 2004). However, where the attorney's discharge "is for cause, the attorney
has no right to compensation or a retaining lien, notwithstanding a specific retainer agreement."

This was not the first time Matsiborchuk improperly sought relief from a judge not assigned to this
case. On November 6, 2014, he similarly asked the current Chief Judge's predecessor to intervene.
See DE 144. As in the later instance described above, the former Chief Judge properly ignored the
request. Indeed, in both instances it is probable that the Chief Judge did not know of the filing when
it was made because filings on the electronic docket are normally forwarded only to case
participants.
4

5

I consider Matsiborchuk's submission on the merits, despite its untimeliness.
5

Garcia v. Teitler, 2004 WL 1636982, at *5 (E.D.N.Y. July 22, 2004) (quoting Campagnola, 76 N.Y.2d at
44), aff'd, 443 F.3d 202 (2d Cir. 2006); see also Adams v. City of New York, 2014 WL 4649666, at *2
(E.D.N.Y. Sept. 16, 2014) ("[I]t is well-settled that an attorney loses his right to enforce a charging
lien if the attorney … is discharged for cause." (internal citations and quotation marks omitted));
Williams v. Hertz Corp., 427 N.Y.S.2d 825, 825-26 (App. Div. 1980) (holding that "an attorney who is
discharged for cause or misconduct has no right to the payment of fees and no retaining lien on his
client's papers"). In such a case, "[t]he burden rests with the client to demonstrate that there was just
cause to terminate the attorney-client relationship." Louima, 2004 WL 2359943, at *60 (citing Casper
v. Lew Lieberbaum & Co., 1999 WL 335334, at *6 (S.D.N.Y. May 26, 1999)).
New York case law does not explicitly define "cause" for termination, but it does establish
that the term "means that the attorney has engaged in some kind of misconduct, has been
unreasonably lax in pursuing the client's case, or has otherwise improperly handled the case." Garcia,
2004 WL 1636982, at *5; see Louima, 2004 WL 2359943, at *60 (finding that when an attorney is
"terminated for misconduct, the charging lien is forfeited"). Examples of the kind of attorney
misconduct that support a finding of termination for cause include the following:
(1) the attorney's failure to perform under the employment contract; (2) his lack of
diligence in so performing; (3) his lack of ordinary skill or care in so performing; (4)
his making of demands on the client which violate the terms or exceed the scope of
the contract; (5) his taking of actions contrary to the client's interests or objectives;
(6) his indulging in some sort of unprofessional conduct while handling the client's
affairs; (7) his venting of personal or economic hostility toward the client; and (8) his
loss of the client's trust and confidence.
Garcia, 2004 WL 1636982, at *6 (quoting 31 Am. Jur. Proof of Facts 2d 125 § 7 (Aug. 2003)). In
particular, interference with the client's right to settle can constitute misconduct sufficient to warrant
discharge for cause and forfeiture of counsel's fee. Louima, 2004 WL 2359943, at *60 (citing Dagny
Mgmt. Corp. v. Oppenheimer & Meltzer, 606 N.Y.S.2d 337, 339 (App. Div. 1993)); see also Marrero v.

6

Christiano, 575 F. Supp. 837, 839 (S.D.N.Y. 1983) ("Under New York law, the refusal of a client to
accept a settlement offer is not good and sufficient cause for the withdrawal of an attorney.").
B.

Cause for Termination
1.

Abusive Behavior

Holcombe asserted that Matsiborchuk treated her with disrespect and contempt during his
representation. As she recounted, Matsiborchuk's misbehavior included name-calling, insults, and
questioning her mental competence. See Nardo Decl., Ex. 1 (Holcombe Decl.) ¶¶ 2-9 (citing
interactions with Matsiborchuk "refer[ing] to [her] as 'senseless,' 'stupid,' an 'idiot,' and 'crazy,' stating
that [she] need[ed] to be institutionalized"); Tr. I 21-24 (testifying that Matsiborchuk often called her
senseless, inept, and inadequate, and told her she was "psychologically impaired" and needed to be
under guardianship); Tr. II 39 (Matsiborchuk's insults became "progressively more hostile and
frightening as [their] relationship went on"); Tr. II 44 (Matsiborchuk called Holcombe names such
as "'senseless,' 'stupid,' 'incompetent,' 'crazy,' … which made [her] very frightened and
uncomfortable"); Tr. III 7-8 (Matsiborchuk was "[v]ery forceful, bullying, and belligerent" in
communications "[r]epeatedly for years"); see also H Memo. II at 5-9.
Notwithstanding Matsiborchuk's denials, see Opp. II at 14-15, Holcombe's testimony in this
regard was amply corroborated by the record of contemporaneous email exchanges between the
two. Indeed, Matsiborchuk himself adduced evidence of such misconduct: to cite just one
particularly egregious example, Matsiborchuk included as an exhibit to his own declaration an email
in which he addressed his client thusly: "I firmly reject your pervert [sic] views and corrupt practice
that you employed in this case. I reject all your bizarre and violent allegations contained in your
latest communications." M Decl., Ex. 3 at 1 (Sept. 26, 2012 email). Other examples of gratuitously
belittling communications abound. See id. at 4 (Oct. 21, 2009 email) ("You are intentionally taking
my time to block my work on your case"); id. at 9 (May 13, 2009 email) ("Let's get things nice and

7

clear. … You are simply forcing me to remind you that the US Airways case is still before the court
due solely to my effort, and you should have the common 'courtesy' to be thankful for that."); id. Ex.
5 at 1-2 (Oct. 10, 2012 email) ("In your communication, you made unintelligible and incoherent
statements … [n]one of my clients have ever behaved like you."). Matsiborchuk's emails also reveal
his repeated suggestions that Holcombe appoint a guardian, and his claimed ability to diagnose
psychiatric competence. See id. Ex. 1 at 1 (Mar. 15, 2011 email) ("I told you during our last
conference that I believe you require a guardian."); Oct. 10, 2012 email (providing the legal
definition of "guardian", stating that he is "trained in the fields of forensic psychiatry, forensic
psychology and forensic medicine [and] definitely trained to determine [the] existence [of psychiatric
incompetence] and identify it[,]" and appending his graduate transcript as proof). 6
Over a year before she discharged him for cause, Holcombe wrote to Matsiborchuk to
protest his behavior and the toll she feared it would have on his ability to adequately represent her:
Each time you behave in a belligerent, unprofessional manner, additional time is
needed to diffuse the situation before there is any possibility of discussion. … You
completely distort my own case evidence documentation and communication which
is confidential information, privileged and confidential for the sole purpose of
protecting me, not to harass, threaten, or humiliate me. To apply a false meaning to
it and make it Public as somehow necessary to include with court filings raises
serious ethical questions. In no way are you allowed to do that and are prohibited.
You have threatened, coerced, and bullied me with withdrawal and suing me at every
juncture, to ensure that you can do whatever you want through leveraging fear. You
also make outrageous insults, claiming that there is something wrong with me; that I
am incompetent or have cognitive impairment; and in need of a legal guardian. You
are in no way qualified, nor is it appropriate for you to make such statements. As an
attorney, I know it is not your area, but would hope you know the process for such a
determination, and you are way out of bounds as my legal representative for making
such statements. I have asked you to stop with these sort of devices, and insist on it
again.

Matsiborchuk maintains that he suggested that Holcombe obtain a law guardian if her health
prevented her from participating in court proceedings, and that she merely misunderstood his
purpose in producing his credentials, which was to demonstrate "his knowledge in this area of the
law[.]" Opp. II at 13. Read in context, the record belies such post hoc rationalization; Matsiborchuk
was plainly questioning Holcombe's mental health based on his own claimed ability to diagnose her.

6

8

M Decl., Ex. 5 at 3 (Oct. 9, 2012 email).
Holcombe echoed those concerns in other settings, both before and after she terminated
Matsiborchuk for cause. See Holcombe Decl. ¶¶ 4-6 ("I was made to feel insecure and unstable by
his badgering and ranting. I was actually fearful of him."); Oct. 10, 2012 email (Matsiborchuk
observes that Holcombe is "dissatisfied with my services … and you do not trust me anymore."); Tr.
I 47-48 (Holcombe was "in shock and scared to death and deeply upset and hurt and very afraid … I
was frightened because … here is somebody that I had to trust and that I was relying on in a very
vulnerable way and things were just awful then and … here was someone who was trying to take
away my dignity"); Tr. II 39, 44 (Matsiborchuk's behavior "made [Holcombe] very frightened and
uncomfortable and afraid" and insults became "progressively more hostile and frightening"); Tr. III
28-29 (Holcombe "had to be very careful because I was very, very afraid of [Matsiborchuk].").
Holcombe's testimony about Matsiborchuk's abusiveness was corroborated not only by the
record of their prior communications, but also, to an extent, by Matsiborchuk's behavior during the
hearing before me. Matsiborchuk was gratuitously combative and intimidating in his crossexamination of Holcombe, and repeatedly shouted and laughed contemptuously at her. See Tr. I 32
(instructing Matsiborchuk not to laugh at the witness); Tr. III 11 (instructing Matsiborchuk not to
argue with the witness); Tr. III 45 (instructing Matsiborchuk not to laugh at the witness); Tr. III 4647 (instructing Matsiborchuk not to engage in bad faith questioning, and warning the hearing would
be concluded if he engaged in such misconduct again). Indeed, after multiple instructions not to
engage in such conduct and warnings that further violations would result in the termination of his
cross-examination, Matsiborchuk again laughed at Holcombe and thereby forfeited his right to
continue questioning her (albeit long after the time originally allotted for such questioning had
lapsed). See Tr. III 48-49.

9

In short, Matsiborchuk persistently treated Holcombe in a way that no client should have to
endure. Such behavior qualifies as misconduct justifying termination for cause. See Garcia, 2004 WL
1636982, at *6 (citing factors such as "indulging in … unprofessional conduct while handling the
client's affairs; … venting of personal or economic hostility toward the client; and … loss of the
client's trust and confidence" as constituting just cause for termination). 7
2.

Interference in the Client's Right to Settle

An independent basis for Holcombe's decision to terminate Matsiborchuk for cause was his
interference in her right to settle the case. See Louima, 2004 WL 2359943, at *60 (interference in
client's right to settle can "constitute misconduct sufficient to warrant discharge for cause and
forfeiture of [the attorney's] fee") (internal citations and alterations omitted). Specifically, in an email
dated March 15, 2011, Matsiborchuk wrote to Holcombe as follows:
"Your value assessment is unreasonable. … If you want to kill possible negotiations,
I must protest. … There are rules and procedures in determining a fair and
reasonable settlement, and as I have said a million times before, I will determine whether
a settlement is reasonable. If you disagree, I will immediately cease representing you and place a lien
on your claim. I spent four years on this case, the better part of which I had to deal
with you as if you were an opposing party because of the way you chose to behave
toward me.
… You refused to even pay expenses and violated the retainer in other ways (for
whatever reasons). Because of this, I suggest two options: (1) transfer your rights
under the retainer to someone who will pay your expenses and uphold the retainer
agreement, or (2) settle. … One of the consequences that results from your decision
to not uphold the retainer agreement is the imposition of further losses on me and
ultimately on you. These losses may stem from a refusal to agree to a reasonable

Matsiborchuk faults Holcombe for failing to include allegations of such misconduct in her
December 2013 notice of discharge. See Opp. II at 7, 14-15. Such argument misses the mark:
Holcombe was under no obligation to provide him with a contemporaneous, detailed inventory of
his lapses if she had good cause to terminate him. If Matsiborchuk's point is that the absence of
detailed assertions in her termination letter impeaches her hearing testimony as recent fabrication, I
respectfully disagree: as discussed above, the historical record demonstrates that Holcombe's
concerns about Matsiborchuk's abusive behavior long preceded his termination for cause.

7

10

settlement. You may choose to refuse to settle and refuse to uphold our retainer agreement, but the
consequences for you would be dire."
Mar. 15, 2011 email (emphasis added); see also H Memo. II at 9-12. Matsiborchuk's demand to dictate
the terms of settlement to his client stands in sharp contrast with the terms of the retainer
agreement, which provides that Matsiborchuk "will not settle or compromise [Holcombe's] claims
without [her] prior consent." M Decl., Ex. 3 at 12. 8
Matsiborchuk's demands that Holcombe comply with his decisions regarding settlement are
"actions contrary to the client's interests or objectives" and "demands on the client which violate the
terms or exceed the scope of the contract[.]" See Garcia, 2004 WL 1636982, at *6. His improper
threat to abandon the litigation, with "dire" consequences for Holcombe, if she did not accede to his
demand to dictate her settlement position justified termination for cause not only because of its
abusive nature, but independently because it interfered with Holcombe's right to settle. Louima, 2004
WL 2359943, at *60; see also Marrero, 575 F. Supp. at 839 ("[T]he refusal of a client to accept a
settlement offer is not good and sufficient cause for the withdrawal of an attorney.").

Although it is ultimately tangential to my ruling on the motions, I note that with respect to their
dispute about the payment of expenses, Matsiborchuk is again in the wrong. The retainer agreement
provided that Holcombe would be "responsible for the expenses in the course of this case[,]" id., but
it did not give Matsiborchuk the unlimited right either to incur expenses unilaterally or to require
interim payment of such expenses. To the contrary, the agreement explicitly required Matsiborchuk
to seek Holcombe's consent in advance of incurring expenses greater than $500, and had no
provision allowing Matsiborchuk to insist on the immediate or advance payment of any expenses.
See id. at 12-13. Indeed, the agreement explicitly left open the possibility that Holcombe's net
recovery would be determined by the total recovery minus, among other things, "expenses paid by
you or advanced by me[.]" Id. at 13 (emphasis added); see also Tr. I 25; Holcombe Decl. ¶ 2 (stating that
Matsiborchuk's demands to pay him made no sense, since he was hired on contingency).
Matsiborchuk's assertion that Holcombe's failure to pay expenses on demand was a breach of the
retainer agreement is thus unfounded. I therefore need not and do not resolve the apparent factual
dispute as to whether Holcombe paid such expenses. See Tr. I 39-40 (Holcombe's testimony that
that she did in fact pay all expenses).
8

11

3.

Improper Threats to Withdraw

Matsiborchuk's improper threat to abandon Holcombe unless she ceded control of
settlement to him was not an isolated tactic: he repeatedly threatened to withdraw if she failed to
listen to him and abide by his judgment. See Holcombe Decl. ¶ 5 ("If there were a dispute between
us … he would repeatedly threaten to abandon representation of me."); see also H Memo. II at 12-14.
In one email, Matsiborchuk "demands [Holcombe's] compliance with [his] directions" and states
that "as long as I am representing you, you are not free in your decisions regarding the resolution of
the legal issues pertaining to this matter." Oct. 21, 2009 email ("[I]f your behavior is aimed at my
forceful withdrawal from your representation, my lien in your case is 33% of all proceeds … I
explained to you many times that in order for us to be successful you must comply with my
directions and stop your constant interference with my independent legal judgment. You have failed
to abide by this requirement.").
In the September 26, 2012 email – the subject of which is "disengagement" – Matsiborchuk
threatens Holcombe with withdrawal:
You must comply with my legal decisions and you have no room for further
discussion of that topic. If you don't accept the legal steps I consider as necessary
and the legal work I have done, or, as you are saying, 'my bad attitude,' You must
have changed [sic] your attorney."
…
I intend to seek withdrawal from your representation because you do not accept my
legal position, refused to communicate with me and do not intend to compensate my
work on your case.
Matsiborchuk repeated that improper threat in another email with the same subject heading sent
several weeks later. See Oct. 10, 2012 email ("I have warned you in the past that I would have to
withdraw if you were to continue to make unfounded criticisms of my work, to ignore my advice, to
disagree with my position and to refuse to communicate with me. … Under these circumstances, I

12

can no longer continue to represent you in your legal matters."). 9 Matsiborchuk's multiple threats to
abandon his representation of Holcombe if she did not comply with his dictates constitute
misconduct warranting discharge for cause. See Garcia, 2004 WL 1636982, at *6 (citing "actions
contrary to the client's interests or objectives" and "demands on the client which violate the terms or
exceed the scope of the contract" as elements constituting just cause for termination). 10
4.

Other Misconduct

The foregoing suffices for me to conclude that Matsiborchuk gave Holcombe several
independent reasons to discharge him for cause and therefore forfeited his right to collect a fee. In
the interest of completeness, I note two other categories of misconduct that bolster resolution of the
motions in Holcombe's favor but do not independently suffice to warrant such a result.
First, while representing Holcombe in this litigation, Matsiborchuk also gave Holcombe
advice in a related bankruptcy case in which she was appearing pro se against US Airways Group, Inc.
Holcombe testified that Matsiborchuk insisted she represent herself because he did not want
another attorney sharing his fee. Holcombe Decl. ¶ 7; Tr. I 22; Tr. III 16-17. Holcombe lost that

Despite the email's language purporting to withdraw, Matsiborchuk continued to be Holcombe's
counsel of record until replaced by Nardo, and continued to hold himself out as such even longer.
Indeed, when he initially applied for an award of fees after Holcombe had discharged him for cause,
Matsiborchuk explicitly continued to hold himself out as Holcombe's current counsel who was only
then seeking leave to withdraw. See MM I at 1.

9

Matsiborchuk contends that Holcombe's "unprovoked hostility, insults, threats, accusations, lack
of cooperation, unavailability, persistent questioning of attorney's work product and persistent intent
to dictate and pursue her own legal theories and arguments directly contrary to the law her counsel's
professional judgment … forced" him to withdraw from representation. MM I at 10; Opp. II at 1112. I disagree that the record supports Matsiborchuk's characterization of his relationship with
Holcombe, and note that he did not testify to such misbehavior (thereby exposing himself to crossexamination on the subject). More fundamentally, however, such argument is misplaced. The record
is clear that Holcombe discharged Matsiborchuk long before he ever purported to seek leave to
withdraw. The resolution of both motions thus turns not on whether Holcombe gave Matsiborchuk
sufficient reason to withdraw – that question is wholly moot under the circumstances – but rather
whether Matsiborchuk acted in such a way as to give Holcombe cause to fire him. As explained
above, he did.
10

13

case on summary judgment because, at Matsiborchuk's behest, she failed to appear for a deposition.
See H Memo. at 11; Holcombe Decl. ¶ 7; Tr. II 50-54; H Memo II at 14-15. During the evidentiary
hearing before me, Holcombe testified that Matsiborchuk drafted a declaration for her to sign and
send to the bankruptcy court indicating that she was too ill to attend her deposition, and that she
would have attended had he not "forbade her to go." Tr. II 50-54. Holcombe's bankruptcy claims
were ultimately dismissed, and she was precluded form asserting them in her federal action in this
court. See DE 87 at 9-10. Matsiborchuk asserts that Holcombe's medical doctor expressed the
professional opinion that she was not well enough to attend the deposition, and that he could not
advise his client to appear "despite the clear express instructions of health professionals to the
contrary." Opp. II at 16-17 (citing doctor's note). I found Holcombe's uncontroverted testimony on
the matter to be credible, and sufficient to explain the existence of the doctor's note. Nevertheless, I
would hesitate before resolving the instant motions in Holcombe's favor based solely on this
episode, in part because the doctor's note lends some credence to Matsiborchuk's account, and in
part because of the attenuation between Matsiborchuk's alleged conduct and its effect on
Holcombe's litigation of this case.
Second, Matsiborchuk has engaged in disruptive tactics throughout the course of this
litigation that would reasonably cause concern to any client. See H Memo. II at 15-18. A great deal of
such disruptive behavior was on view after Holcombe's decision to discharge Matsiborchuk for
cause: his refusal to sign a substitution of counsel and release the client file, even after repeated court
orders to do so; his multiple, often last-minute, motions to disqualify lawyers and judges, to seek
relief from those not authorized to give it, and to transfer the litigation elsewhere; his frequent
untimely requests for delay; his claim at the evidentiary hearing – either feigned or unreasonable –

14

that he did not know its scope in advance and was therefore unable to prepare; 11 and his wholly
unjustified accusations that other participants in this litigation harbored animus toward him because
of his disability. See DE 144; DE 201; DE 204; DE 206; DE 207. No such conduct occurring after
Matsiborchuk's discharge independently justifies resolving the pending motions in Holcombe's
favor, but the consistency of his continued misbehavior lends credence to the proposition that
Holcombe was genuinely, and reasonably, alarmed by Matsiborchuk's conduct at the time she
discharged him.
III.

Conclusion
For the reasons set forth above, I conclude that plaintiff Holcombe justifiably terminated

her former counsel for cause; I therefore deny the attorney's motion for compensation in quantum
meruit and grant the plaintiff's motion to extinguish the attorney's charging lien.
SO ORDERED.
Dated: Brooklyn, New York
March 29, 2017

/s/
_
JAMES ORENSTEIN
U.S. Magistrate Judge

Compare Tr. II 5 (asserting lack of warning about the subject of the hearing), with Scheduling Order
dated Nov. 22, 2016 (scheduling an evidentiary hearing "on the issue of termination for cause, as it
relates to prior counsel, Vladimir Matsiborchuk").
11

15