Synergy Associates, Inc. v. Sun Biotechnologies, Inc. , 350 F.3d 681 ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3274
SYNERGY ASSOCIATES, INC., ALBERT A. MITSOS, and EFACT,
INC.,
Plaintiffs,
v.
SUN BIOTECHNOLOGIES, INC., SCOTT J. ZEFF,
and MARY ROSE CUSIMANO,
Defendants.
JAMES D. ADDUCCI,
Movant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 C 3320—George W. Lindberg, Judge.
____________
ARGUED NOVEMBER 5, 2003—DECIDED NOVEMBER 26, 2003
____________
Before FLAUM, Chief Judge, BAUER and WILLIAMS, Circuit
Judges.
WILLIAMS, Circuit Judge. James Adducci was permitted
to withdraw as retained counsel for Mary Cusimano
due to the non-payment of attorney’s fees. Three weeks
later, the district court appointed him to represent her
2 No. 03-3274
pro bono and overruled his objection to the assignment.1
While we encourage appointments under the district court’s
pro bono service program, we reverse its appointment of
Mr. Adducci in this case because the appointment did not
comply with the Northern District of Illinois’s Local Rules.
I. BACKGROUND
James Adducci represented Mary Cusimano and Medical
Technologies Unlimited, Inc. (MTU), her employer, in a
commercial dispute brought by creditors of Ms. Cusimano’s
failed business. MTU initially agreed to compensate
Mr. Adducci for his representation but refused to pay
any further fees once it settled plaintiffs’ claims against
MTU. At this point, Mr. Adducci had incurred over $93,000
in fees and expenses. Ms. Cusimano informed Mr. Adducci
that she was not able to pay the fees for his past or future
representation, and he filed a motion to withdraw as
counsel. The district court granted this motion on June 18,
2003, and informed Ms. Cusimano that her counsel was
withdrawing from her case. The court also asked if she was
going to proceed pro se or attempt to obtain new counsel.
Ms. Cusimano indicated she was going to seek new counsel
but if she couldn’t find new counsel then would proceed
pro se. The court advised Ms. Cusimano that she also could
“petition the Court for appointment of counsel if [her]
affidavit demonstrate[d] that [she was] without funds to
hire an attorney.”
1
This court has jurisdiction over Mr. Adducci’s appeal under
the collateral order doctrine outlined in Cohen v. Beneficial
Industrial Loan Corp., 337 U.S. 541, 546-47 (1949). See Fidelity
Nat’l Title Ins. Co. of N.Y. v. Intercounty Nat’l Title Ins. Co., 310
F.3d 537, 539-40 (7th Cir. 2002). All proceedings on the underly-
ing case have been stayed, pending the resolution of Mr. Adducci’s
appeal.
No. 03-3274 3
Three weeks later, during a status hearing on July 9,
2003, which Ms. Cusimano attended by telephone, the dis-
trict court again asked whether Ms. Cusimano had obtained
new counsel or was going to proceed pro se. Ms. Cusimano
indicated that she was “talking to two different attorneys .
. . [and] [i]t’s just financial arguments that I am trying to
make,” but she also informed the court that she had “filled
on [sic] the paperwork that the Court instructed [her] to see
if an attorney could be appointed.” The court asked Ms.
Cusimano to provide a status report on her ability to obtain
new counsel on July 30, 2003, and Ms. Cusimano agreed to
do so and acknowledged the deadline.
Immediately following this exchange, Ms. Cusimano
asked about the status of two counts in the plaintiffs’ com-
plaint that she thought had been resolved by MTU’s set-
tlement and her success at summary judgment. Plaintiffs
responded that the two claims remained active against Ms.
Cusimano. Then the following exchange occurred:
The Court: Okay. Well, this is a little involved.
I think what we’re going to do under this Court’s
authority to appoint counsel in this case for Ms.
Cusimano because there are going to be technical
legal issues here arising. And the Court has exam-
ined the records for the appointment for attorneys
and it appears that Mr. Adducci has not served as
an appointed attorney, so the Court is going to ap-
point him as the attorney for Ms. Cusimano which,
of course, will satisfy his obligation to serve as an
appointed counsel [as required] as a member of the
bar of this court.
Ms. Cusimano: Thank you so much, your Honor.
The Court: All right. And then on the other hand,
you are still to report to the Court whether you
want to retain counsel, so that particular aspect of
4 No. 03-3274
the order remains in place. But in the meantime,
the Court will be in touch with Mr. Adducci and in-
dicate that he has been appointed under the rules
of the court to represent you.
On July 22, 2003, shortly after he was notified by the
district court of his appointment as Ms. Cusimano’s pro
bono counsel, Mr. Adducci filed a motion for relief from
appointment, arguing that the pro bono appointment did
not comply with Local Rule 83.36. See U.S. DIST. CT. (N.D.
Ill.) LOCAL R. 83.36. Mr. Adducci noted that Ms. Cusimano
had not asked for counsel to be appointed, had indicated
that she intended to seek and retain other counsel, and had
retained counsel in a related Florida lawsuit without pro
bono representation. On July 27, 2003, Ms. Cusimano filed
an In Forma Pauperis application and financial affidavit
with the district court. Two days later, the district court
denied Mr. Adducci’s motion for relief from appointment as
pro bono counsel. In denying the motion, the district court
stated:
James D. Adducci’s motion for relief from appoint-
ment is denied. Defendant Cusimano made very
clear her desire to have counsel appointed for her,
both at the hearing at which Mr. Adducci was
appointed and in her Opposition [to Mr. Adducci’s
motion]. Moreover, Mr. Adducci has specific exper-
tise necessary to this case—that expertise being his
knowledge of this very case. Any other attorney
will require a substantial period of time to become
familiar with the case, which will inevitably delay
preparation of the final pretrial order and the trial
of this case. As a member of this court’s bar, Mr.
Adducci has a duty to accept pro bono appoint-
ments. . . . Appointment in this case will likely
cause less hardship than appointment in another
case would because of how far along this case has
progressed. The court sees no basis for relieving
Mr. Adducci from this appointment.
No. 03-3274 5
II. ANALYSIS
Civil litigants generally have no right to free legal aid in
civil lawsuits. See Fidelity Nat’l Title Ins. Co. of N.Y. v.
Intercounty Nat’l Title Ins. Co., 310 F.3d 537, 540 (7th Cir.
2002). In an effort to ensure that all deserving litigants,
including those without financial means, have access to
counsel in the federal court system, the Northern District’s
pro bono program requires all members of its trial bar to
“be available for appointment by the court to represent or
assist in the representation of those who cannot afford to
hire a member of the trial bar.” U.S. DIST. CT. (N.D. Ill.)
LOCAL R. 83.11(g).2 The Local Rules provide the mecha-
nisms for court-appointed representation, see id. LOCAL R.
83.36(a), and assignment of attorneys. See id. LOCAL R.
83.36(c)-(f).
An applicant for court-appointed counsel must fill out
an application which includes affidavits stating “the party’s
efforts, if any, to obtain counsel by means other than
appointment” and the party’s financial status. See id. Local
R. 83.36(a). The district court judge then considers several
factors in making the appointment, including: (1) the
potential merits of the claims; (2) the factual or legal
complexity of the matter; (3) the capability of the pro se
litigant to present the case; (4) the litigant’s inability to
retain counsel by other means; (5) the degree to which the
interests of justice will be served by appointment of counsel,
including the benefit the court may derive from the assis-
tance of appointed counsel; and (6) any other factors
deemed appropriate by the judge. See id. LOCAL R. 83.36(c).
Once the judge determines that appointment of counsel is
warranted, an order is entered, see id. LOCAL R. 83.36(d),
2
Appointments under this rule are made “in a manner such that
no member of the trial bar shall be required to accept more than
one appointment during any 12 month period.” Id.6 No. 03-3274
and the clerk of the court selects a member of the trial bar
from a previously identified panel of eligible attorneys. See
id. LOCAL R. 83.36(e). The judge may direct the appoint-
ment of a trial bar attorney with such expertise regardless
of whether he or she is a member of the current panel if the
judge finds that “the nature of the case requires specific
expertise.” See id. LOCAL R. 83.36(d)(2)-(3).
Here, the method by which the judge made Mr. Adducci’s
appointment, and his justification for selecting him as Ms.
Cusimano’s attorney did not comply with the pro bono
appointment procedures. First, at the time the district court
appointed Mr. Adducci as pro bono counsel, Ms. Cusimano
had only indicated that she had filled out the application,
not that she had submitted it to the district court for
consideration. See id. LOCAL R. 83.36(a). Indeed, Ms.
Cusimano twice informed the court (both before and after
Mr. Adducci appointment) that she would continue to seek
retained counsel and, in accordance with the court’s
direction, would inform the court whether she had obtained
such counsel. Ms. Cusimano filed her In Forma Pauperis
application and financial affidavit before the court ruled on
Mr. Adducci’s motion for relief from appointment. However,
the district court did not find that she had “demonstrate[d]
that [she was] without funds to hire an attorney,” but only
indicated that she had “made clear her desire to have
counsel appointed for her.” Based on this record, it does not
appear that the court properly evaluated Ms. Cusimano’s
request for an appointment of pro bono counsel, either
before or after it appointed Mr. Adducci to represent her.
The district court’s determination that Mr. Adducci had
“specific expertise” to justify appointment in this case was
also incorrect. In denying Mr. Adducci’s motion for relief
from appointment, the district court stated that he had the
“specific expertise” of “being . . . knowledge[able] [about]
this very case,” but that is not the type of “expertise” for
No. 03-3274 7
which the Local Rules provide. Rather, a judge is expected
to employ the normal assignment process as provided in
Local Rule 83.36(e) (appointment from a pre-selected
panel), unless the judge determines that a member of the
trial bar has expertise in the specific area of law associated
with a complex legal action. See id. LOCAL R. 83.36(d) (“The
judge may specify in the order of appointment an area of
expertise or preference so that the clerk may select a
prospective appointee who indicated such area, if one is
available.”) (emphasis added). Mr. Adducci’s special or spe-
cific knowledge of Ms. Cusimano’s case, a run-of-the-mill
creditor’s lawsuit, as opposed to his particular expertise
in an area of law, is not the type of expertise for which
counsel’s appointment is appropriate, and is not justified
when the court previously permitted him to withdraw as
counsel for his client’s failure to pay fees. If we upheld the
district court’s interpretation, any attorney permitted to
withdraw as retained counsel for any reason would im-
mediately be eligible for appointment as pro bono counsel.
Appointment under that circumstance would override the
legitimate reasons for withdrawal as retained counsel in the
first place.
III. CONCLUSION
For the reasons stated in this opinion, the district court’s
appointment of Mr. Adducci as pro bono counsel in this case
is REVERSED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-26-03