Whiting v. Lacara
In Whiting v. Lacara, 187 F.3d 317 (2d Cir. 1999), a former police officer, Whiting, brought a civil rights action, in federal district court, against his former employer, the Old Brookville Police Department, and other local entities and individuals, after his employment with that department was, in his view, wrongfully terminated Id. at 318.
After retaining, then discharging his first counsel, Whiting's second counsel withdrew from the case, with Whiting's consent, after a jury had been selected, and that resulted in the discharge of the jury. Whiting eventually hired Garrett R. Lacara to represent him. Id. at 319.
But, less than two weeks before trial, Lacara filed a motion to withdraw as counsel. Attached to his motion was an affidavit in which Lacara averred, as grounds for his motion, that Whiting had "failed to follow legal advice," had not kept adequate contact with his office, had demanded that Lacara re-litigate issues that had already been decided, and had "demanded publicity against legal advice." Id.
In fact, relations between attorney and client had become so strained that, according to Lacara, Whiting had entered his office on one occasion and, without permission, had begun "riffling" through Lacara's in-box. Id. When asked to leave, Whiting refused until Lacara called "911."
After denying these allegations, Whiting stated that he would agree to an order permitting Lacara to withdraw, provided that all of the fees that he had paid Lacara were refunded. That was not necessary because the district court denied Lacara's motion outright. Challenging that ruling, Lacara filed an appeal, as well as a motion requesting an "emergency stay" of the district court's order. Id.
The Second Circuit granted the stay but denied Lacara's "request for relief on the merits at that time," whereupon Lacara renewed his motion to withdraw in the district court. Id.
When that court rejected, once more, his request to withdraw, Lacara noted his second appeal. That appeal was then consolidated, for review, with his previous appeal.
The Second Circuit found that the order denying "Lacara's motion to withdraw as counsel satisfied each of the . . . requirements" of the collateral order exception, pointing out that it "'conclusively determined the disputed question,'" that is, whether counsel will "'continue his representation,'" id. at 320 (quoting Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368 (1981)); that it presented "an issue completely separate from the merits of the underlying action," id.; and that, once a final judgment had been entered, the harm to Lacara "would be complete, and no relief could be obtained on appeal." Id.