Trim v. Astrue

Filing 19

ORDER that attorney Charles L. Martin and attorney Perrie Naides shall, within thirty (30) days of the entry of this Order, seek admission to practice in this Court pro hac vice in this matter. If such application is not filed within such time period the Court may strike the summary judgment brief of the Plaintiff without further notice. Signed by District Judge Martin Reidinger on 07/06/2010. (thh)

Trim v. Astrue

D o c . 19

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE WESTERN DISTRICT OF NORTH CAROLINA AS H E V IL L E DIVISION C IV IL CASE NO. 2:09cv030

J O AN N MCMANUS TRIM, P l a i n t if f , vs . M IC H AE L ASTRUE, C o m m is s io n e r of Social Security, D e fen d a n t. _____________________________

) ) ) ) ) ) ) ) ) ) )

ORDER

TH IS MATTER is before the Court sua sponte on the question of wh e th e r the summary judgment brief of the Plaintiff is properly before the C o u r t. The signature page for the brief indicates that it has been presented to this Court by attorneys Russell Bowling, Charles Martin and Perrie N a id e s , even though it bears only the electronic signature of Mr. Bowling. [D o c .1 1 ]. The brief contains the notation "On the brief, Charles L. Martin, A tto rn e y for Plaintiff," which is followed by Mr. Martin's firm and contact in fo r m a tio n , and also identifies Attorney Naides as "Attorney for Plaintiff."
1

Dockets.Justia.com

M r. Martin and Mr. Naides, however, are neither counsel of record for the P la in tiff in this case, nor licensed to practice law in this district. Attorneys M a rtin and Naides have neither sought nor obtained permission to appear p ro hac vice in this Court. Under these circumstances this Court must d e te rm in e whether Attorneys Martin and Naides have been undertaking the u n a u th o riz e d practice of law or have made an improper appearance in this m a tte r. If so, the brief presented on behalf of the Plaintiff is not properly b e fo re this Court. T h e Court is aware of recent participation by Mr. Martin in cases in th is district. The Court is also aware that Mr. Martin takes the position that h e is merely providing "brief writing services" to Mr. Bowling and other s im ila rly situated attorneys, rather than representing Social Security p la in tiffs such as the Plaintiff herein. See, e.g., Jones v. Astrue, 4:09-205T L W (D.S.C. 2010); McChesney v. Astrue, 2009 WL 4267076 (D.S.C. 2 0 0 9 ); Alverson v. Astrue, 2:08-3092-CMC-RSC (D.S.C. 2009); Mortenson v . Barnhart, 8:07-547-JFA (D.S.C. 2009). T h e position taken by Mr. Martin, however, is not well supported by d o c u m e n ts filed with this Court. These documents reflect a much more c o m p le x relationship between Mr. Bowling, Mr. Martin and their respective

2

c lie n ts . In a number of cases Mr. Martin and Mr. Bowling have filed their tim e records with this Court in the context of seeking attorneys fees when th e y prevailed. Those time records reflect that on some occasions Mr. M a r tin was involved in the decision of whether the appeal to District Court s h o u ld be filed, even reflecting an entry for analyzing a given case before th e first work performed by Mr. Bowling as shown thereon. [See, e.g., 2 :0 8 c v0 1 7 , Docs. 21-5 and 21-4, filed 04/26/10; 2:09cv056, Docs. 10-4 and 1 0 - 3 , filed 05/21/10; 2:04cv255, Docs. 21-5 and 21-4, filed 09/28/05]. Mr. M a r tin also routinely prepared the petitions under EAJA when they were file d . [See, e.g., 1:09cv320, Doc. 14-2; 2:08cv17, Doc. 21-5; 2:08cv34, D o c . 19-4; 2:09cv27, Doc. 15-4; 2:09cv56, Doc. 10-4]. Mr. Bowling's time c o n s is te n tly represents a fraction of that devoted to a case by Mr. Martin or o th e r attorneys in Mr. Martin's law firm, [Id.; 1:09cv320, Doc. 14-1 and 143 ; 2:08cv17, Doc. 21-4; 2:08cv34, Doc. 19-3; 2:09cv27, Doc. 15-3 and 155 ], and Mr. Bowling's time entries almost invariably reflect that they are for " re c e ip t and review" of documents prepared by others - usually by Mr. M a rtin or others attorneys in his firm. [See, e.g., 1:09cv320, Doc. 14-1; 2 :0 4 c v2 5 5 , Doc.21-4]. In cases such as Dyer v. Astrue, 2:09cv056, the S S A stipulated to a remand, so no brief needed to be filed on behalf of the

3

p la in tiff, but Mr. Martin nonetheless filed a petition for his fees, reflecting th a t he had expended an amount of time equal to that of Mr. Bowling. In a n o th e r case, Sacco v. Astrue, 1:09cv320, Mr. Martin apparently asserts th a t he was only providing briefing services to Mr. Bowling, but the p la in tiff's brief was written by attorney Audrey B. Faust, of Washington, DC, wh o has no connection with Mr. Martin's firm that appears of record. [1 :0 9 c v3 2 0 , Doc.14-3]. M r. Martin has also filed affidavits with this Court in Social Security c a s e s identifying himself as "Counsel for the Plaintiff" and "Attorney for P la in tiff." As noted above, on the brief filed in the present case, Attorneys M a r tin and Naides have identified themselves as "Attorney for Plaintiff." Perrie Naides, who is apparently an associate in Mr. Martin's firm, in an a ffid a vit filed with this Court identifies Mr. Martin as "lead counsel for the p la in tiff/a p p e lla n t." [2:08cv017, Doc. 15-5] (emphasis added). The Court also notes that Mr. Martin has been less than forthright with the Court in some of his filings. In EAJA petitions Mr. Martin has re p re s e n te d Mr. Bowling's time spent in the case to be well in excess of th a t supported by Mr. Bowling's affidavit and time records, in at least one c a s e incorrectly representing to the Court that Mr. Bowling's time spent on

4

th e case exceeded that spent by Mr. Martin, when that was not true. [2 :0 9 c v0 2 7 , Doc. 15-4]. All of these facts are inconsistent with the assertion that Attorneys M a r tin and Naides have provided only "brief writing services" for Mr. B o wlin g . On the contrary, this reflects active representation of the plaintiffs in these cases before this Court. As such, the Court must find as fact and c o n c lu d e as a matter of law that Mr. Martin and Mr. Naides and the lawyers in their firm have undertaken the practice of law in this case before this C o u rt. See, N.C. Gen. Stat. §84-2.1. It is the obligation of this Court to participate in the regulation of the p r a c tic e of law in this District. In Re G.L.S., 745 F.2d 856 (4 th Cir. 1984); F e d . R. Civ. P. 83, LcvR 83.1. Acting on that obligation protects the c itiz e n s of this District from "quality control problems" enabled by the ro u tin e exercise of significant influence over local cases by persons over wh o m no local authority otherwise can assert credentialing, service of p ro c e s s , and discipline. Hon. G. Ross Anderson, Jr., "Renting Your Law L ic e n s e Can Be Dangerous: Avoiding the Rubber-Stamp Mentality S u rro u n d in g Pro Hac Vice Admissions", South Carolina Lawyer, March 2 0 1 0 , p. 33; Sanders v. Russell, 401 F.2d 241, 245 (5 th Cir. 1968).

5

M o re o ve r, this Court must find that Mr. Bowling provides "a legal c o n d u it through which [Mr. Martin] is attempting to practice in this court w ith o u t seeking admission to the Bar or pro hac vice." Sandoval v. Apfel, 8 6 F.Supp.2d 601, 607 (N.D.Tex.2000), which is inappropriate. For these reasons the Court must conclude that the summary ju d g m e n t brief filed on behalf of the Plaintiff is not properly before this C o u rt. In the interests of justice, however, the Court will not strike the brief a t this time. The Court will allow Attorneys Martin and Naides to apply for a d m is s io n in this matter pro hac vice, with that admission to be nunc pro tu n c to the filing of the case. If any other attorneys who are not licensed to p ra c tic e before this Court have likewise actively participated in the re p re s e n ta tio n of the Plaintiff in this matter, such other attorneys must also a p p ly for admission pro hac vice within the same time period as allowed for A tto r n e ys Martin and Naides. The Court will strongly emphasize, however, th a t pro hac vice admission is not a substitute for being licensed to practice in this Court. The Court is willing to allow pro hac vice admission to an a tto rn e y otherwise unlicensed in this District only a limited number of times. Thereafter, obtaining a permanent license for practice in this Court will be n e c e s s a r y for such attorney to appear any further. Otherwise this Court

6

wo u ld serve to by-pass the very important function played by the Board of L a w Examiners and the State Bar of North Carolina. IT IS THEREFORE ORDERED that attorney Charles L. Martin and a tto rn e y Perrie Naides shall, within thirty (30) days of the entry of this O rd e r, seek admission to practice in this Court pro hac vice in this matter. If such application is not filed within such time period the Court may strike th e summary judgment brief of the Plaintiff without further notice. IT IS SO ORDERED.
Signed: July 6, 2010

7