Securities and Exchange Commission v. Stratocomm Corporation et al

Filing 48

ORDER re 46 Sealed Motion to Withdraw as Counsel. The motion of the law firm Dreyer Boyajian LLP to withdraw as counsel is GRANTED. Attorney William J. Dreyer and Benjamin W. Hill terminated. Signed by Magistrate Judge Christian F. Hummel on 7/11/2013. (dpk)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

SECURITIES AND EXCHANGE COMMISSION,
Plaintiff,
v.

No. 11-CV-1188
(TJM/CFH)

STRATOCOMM CORPORATION;
ROGER D. SHEARER; CRAIG DANZIG,
Defendants.

MEMORANDUM-DECISION AND ORDER
I. Background
By letter dated May 16, 2013, the attorneys for defendant StratoComm Corporation
requested a conference to seek leave of the Court to make a motion to be relieved as
counsel. On June 13, 2013, a conference was conducted on-the-record with counsel for all
parties. Defendant Roger Shearer, who is a principal of StratoComm Corporation,
participated in that conference. Defendant pro se Craig Danzig did not participate in the
conference. Following that conference, the Court issued an order setting a briefing
schedule for the motion to withdraw. Dkt. No. 43. The order further directed that any
motion papers be filed under seal. Id.
On June 5, 2013, StratoComm Corporation’s counsel filed a motion under seal to be
relieved as counsel. Dkt. No. 46.1 StratoComm Corporation has not filed any papers in

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StratoComm Corporation’s counsel filed its motion papers seeking to withdraw
under seal. After an in-camera review, the Court deems sealing the documents proper
given the inclusion of information of a confidential nature regarding attorney-client
privilege.

response to the motion to withdraw as counsel.

II. Motion to Withdraw
Withdrawal of counsel in a civil case is governed by Local Rule 83.2(b) which provides:
An attorney who has appeared may withdraw only upon notice to
the client and all parties to the case and an order of the Court,
upon a finding of good cause, granting leave to withdraw . . .
Unless the Court orders otherwise, withdrawal of counsel, with or
without the consent of the client, shall not result in the extension
of any of the deadlines contained in any case management
orders . . . or the adjournment of a trial ready or trial date.
N.D.N.Y.L.R. 83.2(b). In determining whether good cause has been shown for withdrawal,
federal courts look to the various codes of professional responsibility. See Whiting v.
Lacara, 187 F.3d 317, 321 (2d Cir. 1999) (referring to the Code of Professional
Responsibility to illustrate both mandatory and permissive situations for withdrawal as
counsel); Heck-Johnson v. First Unum Life Ins. Co., No. 01-CV-1739 (GLS/RFT), 2006 WL
1228841, at *4 (N.D.N.Y. May 4, 2006). The Second Circuit has held that:
A client’s refusal to pay attorney’s fees may constitute “good
cause” to withdraw . . . In most cases, however, courts have
permitted counsel to withdraw for lack of payment only where the
client either “deliberately disregarded” financial obligations or
failed to cooperate with counsel . . . [as] “[n]on-payment of legal
fees, without more, is not usually a sufficient basis to permit an
attorney to withdraw from representation.”
United States v. Parker, 439 F.3d 81, 104 (2d Cir. 2006) (internal citations omitted).
However, “[t]he court must ensure . . . that the prosecution of the suit is not disrupted by the
withdrawal of counsel.” Brown v. Nat’l Survival Games, Inc., No. 91-CV-221, 1994 WL
660533, at *3 (N.D.N.Y. Nov. 18, 1994) (citation omitted).
Here, StratoComm Corporation’s counsel has satisfied the notice requirement. Counsel
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has also fully satisfied the good cause requirement, setting forth information that his client
has refused to pay outstanding attorney fees and also continually failed to cooperate with
counsel to continue the litigation. While StratoComm Corporation’s response to plaintiff’s
motion for partial summary judgment is due on July 26, 2013, StratoComm Corporation has
been aware of the pending motion, and the intention of current counsel to move to withdraw
as counsel for well over two months. Accordingly, the motion to withdraw is granted.2
Wherefore, it is hereby ordered that:
1) The motion of the law firm Dreyer Boyajian LLP to withdraw as counsel (Dkt. No. 46)
is GRANTED.

Dated: July 11, 2013
Albany, New York

2

“However, it is well-established that as a corporation, [StratoComm Corporation]
cannot represent itself pro se, but must appear through counsel. Brown, 1994 WL
660533, at *3 (citation omitted). As such, StratoComm Corporation must obtain new
counsel if it wishes to defend this matter.
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