LAWRENCE E. KAHN, District Judge.
This matter comes before the Court following a Report-Recommendation ("R & R") filed on February 18, 2001 by the Honorable Randolph F. Treece, United States Magistrate Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3 of the Northern District of New York. Dkt. No. 624/122.
Plaintiff Oneida Indian Nation of New York ("NY Oneida") has moved pursuant to Fed.R.Civ.P. 12(f) and 37(c), Local Rule 1.1(d), and the Court's inherent authority, to strike BSK's Objections. NY Oneida argues that BSK's Objection should be stricken because BSK filed this document in violation of the sealing order entered in these cases, and then failed to ask the Court to correct the error. Dkt. No. 645/130.
While the Court cautions BSK to be more diligent in its procedures for honoring its obligations to file under seal in future cases, it does not find that striking BSK's Objection to the R & R is appropriate in this case. Whether to grant a Rule
Rivera v. Sharp, 2010 WL 2555065, at *4, 2010 U.S. Dist. LEXIS 62556, at *4 (D.V.I. June 21, 2010) (quoting Wolters Kluwer Fin. Srvcs., Inc. v. Scivantage, 525 F.Supp.2d 448, 539 (S.D.N.Y.2007). BSK's failure to file under seal was accidental, it attempted to contact the Clerk's office and opposing counsel regarding its mistake, the R & R had already been filed publicly and outlined the parties' dispute over attorney's fees, and BSK's Objection contained little or no confidential or embarrassing information. See generally BSK's Memorandum in opposition to N.Y. Oneida's motion to strike (Dkt. No. 633/131); R & R); and BSK's Objection. The Court does not find that BSK's failure to file its Objection under seal rises to the level of bad faith or involves otherwise compelling circumstances, and therefore it exercises it denies the Motion to strike BSK's Objection.
This Court is to "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b). "A [district] judge ... may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id. Where, however, an objecting "`party makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the Report and Recommendation only for clear error.'" Farid v. Bouey, 554 F.Supp.2d 301, 307 (N.D.N.Y.2008) (quoting McAllan v. Von Essen, 517 F.Supp.2d 672, 679 (S.D.N.Y.2007) (citations and quotations omitted)); see also Brown v. Peters, No. 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22, 1997). "A [district] judge ... may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1).
BSK specifically objects to section IV of Magistrate Judge Treece's R & R which awarded BSK attorneys' fees in these Oneida land claim cases. Judge Treece awarded BSK $5,174.54 of the $57,494.54 that Plaintiffs recovered from Defendants. R & R at 56. BSK objects to Magistrate Judge Treece's award on the ground that it is entitled to a larger fee "based upon the value of the recovery that has been achieved." BSK's Objection at 20. Rather than arguing that it is entitled to more of the money awarded in the judgment in No. 70-CV-35, BSK contends that its contingent fee in the Oneida land claim recovery includes Oneida Nation of York businesses, including a casino established under a gaming compact approved by the Secretary of the Interior in 1993, as well as to any value created by a trust land decision made by the Department of Interior in 2008. Id. at 14-15. BSK argues that everything the Oneida Nation has gained as a result of the legal principle underlying the $57,494.54 damage award, namely that a 1795 purchase of some
The Court has considered BSK's Objection, has undertaken a de novo review of the record, and has determined that the R & R should be approved. With respect to BSK's argument that the term "recovery" should include relief not contained in the final judgment, such as income generated by the Oneida Casino, the Court notes that BSK fails to cite any case in which a contingent fee interest was extended beyond the award contained in a final judgment resolving the litigation or beyond the terms of a settlement. See Universal Acupuncture Pain Servs., P.C. v. Quadrino & Schwartz, P.C., 370 F.3d 259, 264 (2d Cir.2004) (holding that attorney's fees in quantum meruit could be appropriate where the client settled without a monetary award, if the attorney was fired by the client without cause and prior to the completion of litigation); Pueblo of Santo Domingo v. United States, 54 Fed.Cl. 240, 245 (2002) (holding that counsel for an Indian tribe were entitled to the maximum allowable percentage of the tribe's recovery in a settlement it reached with the United States); Stein v. U.S. Bancorp, No. 10-14026, 2011 WL 740537, at *3-4, 2011 U.S. Dist. LEXIS 18357, at *9 (E.D.Mich. Feb. 24, 2011) (including a pre-judgment payment from defendant to plaintiff in calculating an attorney's fee because that payment was credited toward the Court's judgment); Dewey v. Volkswagen of America, 728 F.Supp.2d 546 (D.N.J.2010) (valuing a class-action settlement that included non-cash benefits such as free repairs); McCoy v. Health Net, Inc., 569 F.Supp.2d 448 (D.N.J.2008) (valuing non-cash benefits in another class-action settlement, such as the ability of consumers to obtain free credit reports); Western Shoshone Identifiable Grp. v. United States, 228 Ct.Cl. 26, 652 F.2d 41, 47-48 (1981) (affirming an attorney's fee that constituted 10% of the award obtained in litigation based upon the application of a multi-factor test). Judge Treece specifically addressed this argument by stating that "the Retainer Agreement neither explicitly or implicitly embraces that interpretation" and that "[t]he Court cannot imagine what all of this would portend in terms of a fee." R & R at 437.
In determining the applicable law, Judge Treece correctly stated that the Second Circuit has rejected the proposition "that [the] statutory requirements governing federal approval of certain contracts between Indians and non-Indians give rise to a federal common law governing such contracts." Niagara Mohawk Power Corp. v. Tonawanda Band of Seneca Indians, 94 F.3d 747, 753 (2d Cir.1996) (citing Gila River Indian Cmty. v. Henningson, Durham & Richardson, 626 F.2d 708, 714-15 (9th Cir.1980)). Magistrate Judge Treece also correctly concluded that, in the absence of a federal common law governing contracts between Indians and non-Indians, state contract law must be applied to the extent that federal Indian law does not override it. Niagara Mohawk Power Corp., at 747.
However, rather than relying on contract law principles in its Objection, BSK cites cases on common fund fee awards in class action lawsuits, fee awards in tribal claims against the federal government, and other statutory fee awards. BSK's Objection at 15-19. These cases are not applicable when a contingency fee agreement governs attorneys' fees. Niagara Mohawk Power Corp. at 747. Under New York law, when a term in a fee agreement between an attorney and a client is ambiguous, the New York Court of Appeals has held that "[w]hile, in the law generally, equivocal contracts will be construed against the drafters, courts as a
The Retainer Agreement itself does not expressly state that BSK is entitled to recover casinos, trust land, or anything that the Oneida tribes came by outside of a land claim settlement or judgment. Dkt. No. 630/128, Ex. A. Instead, the Retainer Agreement states, "The compensation of the Attorneys for the services to be rendered under the terms of this contract is to be wholly contingent upon a recovery for the Nation from the State of New York, or any political sub-division or department to it." Id. at 2. The Retainer Agreement goes on to specify the percentages that BSK is entitled to for "amounts recovered by the Nation from the State of New York or any political subdivision, or instrumentality, or agency thereof on account of such claim as a result of or through the instrumentality of attorney's services, advice or assistance." Id. Nowhere in the fee agreement is the term "amounts recovered" defined or is its meaning delineated. Finally, in the context of a contingency arrangement between a client and an attorney, the plain meaning of "amounts recovered" might not include revenue generated by the client outside of recovery obtained through a settlement or final judgment.
It follows, therefore, that BSK can only recover if it proves that it advised its client before making the fee agreement that the term "amounts recovered" might give BSK an interest in these items. To the contrary, there are indications in the record that BSK advised its client that its fees would be limited to money damages: in its reply memorandum, BSK stated that the Oneida Nation sought counsel to secure "monetary compensation" and that the firm pursued "narrow relief" in the form of the land's "rental value." Dkt. No. 472 (Test Case document). Furthermore, BSK's expert attached documents in which BSK advised the Oneida Nation that the aim of the litigation was to get "money damages" and that BSK "would receive no compensation for our services unless we succeeded in collecting something." Dkt. No. 143 (Reservation Case document).
Based upon the foregoing, the Court finds that BSK has not proven that it advised its client that "recovery" or "amounts recovered" would include revenue generated by political and business agreements, such as the licensing and establishment of a casino, that were completely apart from the damages or settlement obtained in the lawsuits. And because BSK has not carried its burden of showing that its client fully knew and understood that the term "amounts recovered" included revenue generated separately from a judgment or settlement, the term "amounts recovered" must be construed against the attorney who drafted it. Thus, Magistrate Judge Treece was correct to construe "amounts recovered" to include only the recovery obtained in the Test Case against the State of New York.
BSK also argues that Magistrate Judge Treece's calculation of a fee award was premature and that BSK was entitled to an evidentiary hearing on the amount of the fee. BSK's Objection at 1, 3, 8. However, the Court notes that BSK has failed to ask the Court to receive further evidence, and furthermore, the Court finds that BSK has failed to proffer any proof that it could have offered in support of a greater fee. See 28 U.S.C. 636(b)(1) (in BSK's Objections, it could have asked the Court to "receive further evidence"). Instead,
Mr. Hirsch does not object to the legal conclusions contained in Magistrate Judge Treece's R & R, but rather, attempts to correct two factual errors he asserts are contained in the R & R. Hirsch Objection. First, the R & R contains a reference to Mr. Hirsch being the plaintiff's attorney in Homer v. Halbritter, 158 F.R.D. 236 (N.D.N.Y.1994). R & R at 44. Shortly thereafter, the R & R makes reference to a 1993 letter written by George Shattuck, in which it is claimed that Mr. Hirsch was then representing the Oneida Indian Nation of New York. Id. It would appear that Mr. Hirsch objected to the R & R in order to correct this error. Upon reviewing the counsel listed in Homer, the Court notes that Mr. Hirsch does not appear to have been an attorney in that case. Id. The Court may not amend or correct the R & R in this respect, because it is limited to the record before it, and the record contains a document that lists Mr. Hirsch as an attorney in Homer. Smith Decl., Ex. 45. However, insofar as the R & R stated that Mr. Hirsch was attorney in that case, the Court notes that the R & R may have been in error.
Accordingly, it is hereby:
RANDOLPH F. TREECE, United States Magistrate Judge.
I. BACKGROUND ........................................................... 405
A. Brief History of the Cases ........................................ 405
B. The Retainer Agreement ............................................ 408
C. Summary of Arguments .............................................. 409
II. JURISDICTION ......................................................... 410
A. Federal Subject Matter Jurisdiction ............................... 410
B. Applicable Law .................................................... 411
C. Specific Jurisdiction ............................................. 412
1. Specific Jurisdiction Under the Retainer Agreement ............. 413
a. Paragraph 10 of the Retainer Agreement ...................... 413
i. Whether the Retainer Agreement was Terminated ........... 413 ii. Whether the Motion is Untimely .......................... 416 b. Paragraph 5 of the Retainer Agreement ....................... 416 2. Sovereign Immunity ............................................. 417 III. PROFESSIONAL ETHICS AND BSK'S RIGHT TO A FEE ......................... 417 A. The N.Y. and WI Oneida's Pre-1978 Ethical Claims .................. 418 1. Conflicts of Interest and Failure to Disclose .................. 418 a. Ethical Standards ........................................... 418 b. Application of Ethical Standards ............................ 419 2. BSK's Withdrawal ............................................... 426 3. BSK Prevented the Nation from Seeking Other Attorneys .......... 428 B. The N.Y. Oneida's Post-1978 Ethical Claims ........................ 429 1. Findings of Fact ............................................... 429 2. Application of Ethical Standards ............................... 431 3. Effect of BSK's Improper Representation ........................ 435 IV. CALCULATION OF FEES .................................................. 436 V. CONCLUSION ........................................................... 437
Presently before the Court is Bond, Schoeneck & King, PLLC's (hereinafter "BSK") Motion to Have the Court Recognize Its Right to a Fee Pursuant to Retainer Agreement and Charging Lien in connection with its previous representation of the Oneida Nation.
In 1795, New York State purchased approximately 100,000 acres of the Oneidas' Reservation land without federal authorization and therefore in violation of the Non-Intercourse Act of 1790.
At the time the Retainer Agreement was entered into, the legal landscape for Native-American land claims in New York was decidedly unfavorable towards would-be Native-American plaintiffs. On the state side, New York courts had generally refused to hear Native-American land claims, see Shattuck Decl. at ¶ 47 (citing cases); on the federal side, the doctrine known as the "well-pleaded complaint rule," which barred federal courts from exercising jurisdiction over Native-American claims that could be brought in state court, amounted to a tested and predictable roadblock, see Taylor v. Anderson, 234 U.S. 74, 34 S.Ct. 724, 58 L.Ed. 1218 (1914); Shattuck Decl. at ¶ 50. Upon researching the viability of the Oneida's potential claims, BSK identified the reality of this legal predicament, but nevertheless saw merit in the Oneidas' claim that New York State's purchase of Oneida lands violated the Federal Non-Intercourse Act of 1790. Shattuck Decl. at ¶¶ 8 & 26.
BSK's strategy was essentially three-fold: (1) petition state and federal governmental agencies for a settlement; (2) if those petitions fail, persuade the United States to file suit against New York State on the Oneidas' behalf; and (3) if the prior two options fail, sue the State of New York directly. Id. at ¶¶ 30, 45, & 86. Despite several written and oral petitions to administrative agencies and government officials including the Governor of New York and Presidents Johnson and Nixon, the implementation of the first two phases of BSK's strategy proved to be futile. Id. at ¶¶ 30-45. As a consequence, BSK filed a claim in the Northern District of New York on behalf of the N.Y. and WI Oneidas.
In the Test Case, the Oneidas sued Madison and Oneida Counties, alleging that New York's purchase of 100,000 acres of Oneida land in 1795 violated the Non-Intercourse Act, and sought relief in the form of fair rental value for the land for a two-year period, 1968-1969.
The Honorable Edmund Port, United States District Judge, pursuant to the "well-pleaded complaint rule," dismissed the Test Case complaint for lack of jurisdiction. Id. at ¶ 56. The Oneidas appealed to the Second Circuit Court of Appeals,
BSK partners John Freyer and George Shattuck represented the Oneidas at trial. Shattuck Decl. at ¶ 88. Prior to the commencement of the trial, Judge Port agreed to trifurcate the case in order to determine the issues of: (1) liability, i.e., whether the land belonged to the Oneidas; (2) damages; and (3) if damages were found, whether New York State should indemnify the Counties. Shattuck Decl. at ¶ 88. On November 13, 1975, during the first phase of the trial, the CAN Oneidas were admitted as a party-Plaintiffs to the suit. Shattuck Decl. at ¶ 98. For the purposes of analyzing this Motion, we will hereinafter refer to the three collective Oneida tribes as "the Nation." At trial, Judge Port ruled in favor of the Nation on the issue of liability, finding that New York State violated the Non-Intercourse Act when it purchased the lands in question from the Oneidas in 1795. Oneida Indian Nation of New York v. Cnty. of Oneida, 434 F.Supp. 527.
After the Supreme Court's 1974 landmark ruling in Oneida I, BSK prepared and filed a new complaint on behalf of the Nation in the Northern District of New York, seeking rent and compensation from Oneida and Madison Counties for their use and possession of approximately 300,000 acres of Oneida land acquired in violation of the Non-Intercourse Act. That action will hereinafter be referred to as the "Reservation Case." Shattuck Decl. at ¶ 110. Then, in 1977, BSK decided to "withdraw from active participation in the Test and Reservation Cases." Shattuck Decl. at ¶ 133, Exs. 33 & 34. And in 1978, BSK withdrew as counsel of record in both cases. Reservation Case Dkt. No. 131, BSK's Mem. of Law at p. 10. At that point, liability had been established in the Test Case, but the issue of damages had yet to be resolved. In the Reservation case, dispositive motions had yet to be filed. See generally Dkts. for Test and Reservation Cases.
The trial on the damages phase of the Test Case began in 1981 before Judge Port, who ultimately assessed damages in the amount of $9,060 plus interest at six percent (6 %) per annum against Madison County, and $7,634 plus interest at six percent (6 %) per annum against Oneida County from January 1, 1968. BSK's Mem. of Law at pp. 8-9. Judge Port's decisions on liability and damages were appealed to the Supreme Court, which affirmed his rulings, but remanded for a recalculation of damages. Cnty. of Oneida v. Oneida Indian Nation of New York, 470 U.S. 226, 105 S.Ct. 1245, 84 L.Ed.2d 169 (1985) (hereinafter "Oneida II"). On remand, the case was reassigned to the Honorable Neal P. McCurn, now-Senior United States District Judge, who eventually entered a judgment against Oneida County in the amount of $8,360, and against Madison County in the amount of $9,910, both with a prejudgment interest rate of six percent (6 %) per annum from January 1,
Aside from settlement discussions between the Nation and New York State, the Reservation Case laid dormant until 1998, when the United States Department of Justice (DOJ) intervened on behalf of the Nation. Reservation Case Dkt. No. 56, Order, dated June 2, 1998. After many failed attempts at settlement through mediation, Amended Complaints were filed and dispositive motions were brought before the Honorable Lawrence E. Kahn, now-Senior United States District Court Judge.
The Retainer Agreement placed a duty on BSK to advise and represent the Nation "against the State of New York in respect of their former lands in New York State," and specified that BSK's remuneration would be "contingent upon a recovery for the Nation from the State of New York, or any political sub-division or department of it." Shattuck Decl., Ex. 1, Retainer Agreement, dated June 24, 1966, at ¶¶ 1 & 4. The amount of the contingency fee was set at twenty percent (20%) of any amount recovered up to $1,000,000, and ten percent (10%) of any amount recovered in excess of $1,000,000. Id. at ¶ 5. However, if the DOJ intervened, assumed responsibility for the claim, and was successful, any fee due to BSK would be determined by the Secretary of the Interior "on a quantum meruit basis." Id.
The Retainer Agreement was submitted to the Secretary of the Interior/Department of the Interior (hereinafter "DOI") for approval as required by 25 U.S.C. § 81.
Id., Ex. 1, Am. to Retainer Agreement at ¶ 2 (adding ¶ 10).
Paragraph 13 states: "This agreement shall be in force for a term of ten (10) years beginning with the date of approval by the Secretary of the Interior or his authorized representative." Id. at ¶ 3 (adding ¶ 13). DOI granted approval of the Agreement on March 28, 1967. Id. The composite parts of the Retainer Agreement finally approved by the Secretary of the Interior will hereinafter be referred to simply as the "Retainer Agreement." In 1974, three years before the Retainer Agreement was set to expire, upon the agreement of the parties and DOI, the Retainer Agreement was extended for a period of five (5) years, with a new expiration date of March 28, 1982. Test Case Dkt. No. 107, Michael R. Smith, Decl., dated Aug. 15, 2002, Ex. 10, Lt. Approving Extension Agreement, dated Apr. 19, 1974.
BSK asserts that it is entitled to attorney's fees pursuant to Paragraph 10 of the Retainer Agreement and New York Judiciary Law § 475, which imposes a charging lien upon a client's cause of action when that client's attorney has made an appearance in that action. N.Y. JUD. LAW § 475.
The N.Y. and WI Oneidas argue that BSK is not entitled to any fee because: (1) BSK does not have a valid charging lien pursuant to § 475 because it did not withdraw "for good cause;" (2) § 475 does not apply in this case because it is preempted by 25 U.S.C. § 81 and barred by the doctrine
The N.Y. Oneidas also filed a Separate Opposition to BSK's Motion wherein they accuse BSK of disloyalty and breach of fiduciary duty stemming from alleged acts taken during the 1980's and early 1990's. Test Case Dkt. No. 108, Separate Opp'n to Mot. for Att'y Fees. The N.Y. Oneidas argue that as a consequence of those alleged actions, BSK has forfeited any right to attorney's fees as against the N.Y. Oneidas. Id. at p. 12.
Although the Supreme Court has never addressed the issue, it is doubtful that the approval of a contract by the Secretary of the Interior under 25 U.S.C. § 81 by itself creates federal subject-matter jurisdiction in a routine breach of contract claim, because nothing in that statute creates an independent cause of action for a party to such a contract. See Niagara Mohawk Power Corp. v. Tonawanda Band of Seneca Indians, 862 F.Supp. 995 (W.D.N.Y.1994) ("[C]laims based on [a contract] are not converted to federal claims merely because one of the parties to the agreement is an Indian tribe."); TTEA v. Ysleta del Sur Peublo, 181 F.3d 676, 681 (5th Cir.1999) ("The federal courts do not have jurisdiction to entertain routine contract actions involving Indian tribes.") (citation omitted); see also Littell v. Nakai, 344 F.2d 486, 488 (9th Cir.1965) (federal court lacked jurisdiction in a breach of contract claim where the contract was approved under 25 U.S.C. § 81 because "the real substance of the controversy centers upon the contract and its construction rather than the statutory basis for the contract[.]" (citation omitted)); cf. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978) (holding that the Indian Civil Rights Act, 25 U.S.C. §§ 1301-1341, did not create an independent cause of action against Indian tribes for declarative or injunctive relief).
However, the very terms of the Retainer Agreement give this Court subject matter jurisdiction as does the doctrine of supplemental jurisdiction. Both the Test and Reservation Cases originated in this Court. The Court therefore finds that it has supplemental jurisdiction over this Motion pursuant to 28 U.S.C. § 1367. Itar-Tass Russian News Agency v. Russian Kurier Inc., 140 F.3d 442, 444 (2d Cir.1998) (holding that, pursuant to 29 U.S.C. § 1367, the district court should have exercised supplemental jurisdiction over a claim for attorneys' fees); see also Louima v. City of New York, 2004 WL 2359943, at *55 (E.D.N.Y. Oct. 5, 2004) (stating that federal courts have "the authority to determine attorney's fee disputes and regulate attorney's fee liens")
As previously noted, BSK seeks recognition of a right to attorney's fees pursuant to its alleged charging lien and the Retainer Agreement, a contract. Before this Court can make a recommendation as to the rights and responsibilities contained in the Retainer Agreement, it must first determine what law governs. A leading treatise on Indian law from the time the contract was entered into suggests that in most cases, "the ordinary rules of the common law with respect to the execution and interpretation of contracts have been applied [to contracts between Indian tribes and third parties], by common consent of the parties." Felix S. Cohen, COHEN'S HANDBOOK OF FEDERAL INDIAN LAW (1971). No such common consent, in the form of a choice of law clause or otherwise, is present in the Retainer Agreement. For that reason, the N.Y. and WI Oneidas assert that there is no "room to invoke state law to supplement a federally-approved contract," and that "BSK could have tried to incorporate state law principles in its contract expressly, permitting Interior to approve it or not." Joint Opp'n at p. 13.
It is settled law that Indian relations fall within "the exclusive province of federal law." Oneida II, 470 U.S. at 234, 105 S.Ct. 1245. Pursuant to federal law governing Indian relations, the Retainer Agreement was approved by the Secretary of the Interior under 25 U.S.C. § 81. However, nothing in 25 U.S.C. § 81 nor its companion statutes purport to create an entirely separate body of federal common law governing contracts with Indians. See generally 25 U.S.C. § 81 et seq. Indeed, the Second Circuit Court of Appeals has rejected the proposition "that [the] statutory requirements governing federal approval of certain contracts between Indians and non-Indians give rise to a federal common law governing such contracts." Niagara Mohawk Power Corp. v. Tonawanda Band of Seneca Indians, 94 F.3d 747, 753 (2d Cir.1996) (citing Gila River Indian Cmty. v. Henningson, Durham & Richardson, 626 F.2d 708, 714-15 (9th Cir. 1980)); cf. A.K. Mgmt. Co. v. San Manuel Band of Mission Indians, 789 F.2d 785, 789 (9th Cir.1986) ("[I]t is doubtful that general contract principles apply to an agreement subject to 25 U.S.C. § 81 (1982).").
Accepting as we must the Second Circuit's conclusion that there is no federal common law governing contracts with Indians, state contract law must be applied to the extent that federal Indian law does not override it. Niagara Mohawk Power Corp. v. Tonawanda Band of Seneca Indians, 94 F.3d at 747 (cited in United States ex rel. The Saint Regis Mohawk Tribe v. President R.C.—St. Regis Mgmt. Co., 451 F.3d 44, 51 n. 6 (2d Cir.2006)). To hold otherwise would effectively place the Court's consideration of this Motion in a legal vacuum.
Although this Court has subject-matter jurisdiction over BSK's Motion, that does not end the jurisdictional discussion. We must still determine: (1) whether the terms of the Retainer Agreement grant or preclude specific jurisdiction upon or from this Court; and (2) whether the N.Y. and WI Oneidas' sovereign immunity under federal Indian law precludes this Court's jurisdiction over BSK's Motion.
Paragraph 10 of the Retainer Agreement states:
Retainer Agreement at ¶ 10.
The N.Y. and WI Oneidas make two arguments in support of their claim that this Court does not have jurisdiction over BSK's Motion under Paragraph 10: (1) the Retainer Agreement was never terminated, Joint Opp'n at pp. 5-8; and (2) BSK's Motion is untimely because this Court does not have jurisdiction until such time as it finally determines the underlying claims, Joint Opp'n at pp. 8-9.
BSK asserts that pursuant to the express language of Paragraph 10, they are entitled to attorney's fees to be determined by the Court on an equitable basis because the contract was terminated without any wrongdoing on their part. The N.Y. and WI Oneidas contend that the instructions of Paragraph 10 are inapplicable because BSK never terminated the Retainer Agreement, but rather, withdrew from representation in the Test and Reservation Cases. In support of their argument, the N.Y. and WI Oneidas reference a letter from George Shattuck to Jacob Thompson, then Claims Representative for the N.Y. Oneidas, dated April 25, 1977, wherein Shattuck stated:
Smith Decl., Ex. 23 at p. 1.
Shattuck went on to explain that because the legal climate had changed as a consequence of their victory in the Supreme Court in Oneida I, a new possibility of bringing valid ejectment actions against private landowners existed. However, Shattuck wrote that BSK was "unable to represent or advise [the Nation] with respect to potential actions against the private landowners." Id. at p. 3. As a consequence, Shattuck wrote, BSK had come to the conclusion that
Id. at pp. 3-4.
Although Shattuck was recommending that the Nation find different counsel with respect to potential actions against private landowners, he made clear that BSK did not
Id. at p. 5.
The N.Y. and WI Oneidas also point out that BSK continued to send annual reports to the Secretary of the Interior, as required by Paragraph 11 of the Retainer Agreement, from 1977 through 1982. The reports filed for the years 1979-1982 all state the following:
Smith Decl., Ex. 29, Rpts. to Dep't of the Interior, dated Mar. 25, 1980, Mar. 31, 1981, Apr. 13, 1982, & Mar. 1, 1983.
Notwithstanding BSK's representation to the Nation in its April 25, 1977 Letter that it did not intend to terminate the Retainer Agreement, it is clear that the relationship between BSK and the Nation was fundamentally altered upon BSK's withdrawal as counsel of record in the Test and Reservation cases in 1978. After their withdrawal in 1978, BSK no longer represented the Nation in its land claims. Although George Shattuck continued to advise and counsel the Nation "in accordance with [BSK's] intent to help the Oneidas however possible in their pursuit of their
The Retainer Agreement, by its express terms, placed upon BSK the responsibility to both "advise" and "represent" the Nation in connection with their land claims. Retainer Agreement at ¶¶ 1-2. The contingency fee articulated in the Retainer Agreement was agreed to as consideration for BSK's services as both advisor and representative as to their land claims. Thus, BSK's withdrawal from representation constituted a change in the nature and extent of the services that were contemplated under the Retainer Agreement. Besides extending the Retainer Agreement until 1982, neither BSK nor the Nation agreed to amend the terms of the Retainer Agreement, nor did they seek to have a new contract approved by the DOI as required by 25 U.S.C. § 81. Therefore, we find that BSK's statements to the Nation that it intended to withdraw, along with the subsequent official substitution of BSK as counsel of record in the Test and Reservation Cases, constituted a declaration that it could not perform all of the services specified in the Retainer Agreement.
Despite this change in the nature and extent of the services BSK provided to the Nation after 1978, there is substantial evidence in the record that notwithstanding its withdrawal as counsel of record, BSK did not consider the Retainer Agreement to be terminated. First, George Shattuck's April 25, 1977 Letter specifically stated that he did not intend to terminate the Retainer Agreement. Smith Decl., Ex. 23, Lt., dated Apr. 25, 1977, at p. 5. Second, BSK continued to send annual reports to the DOI until the Retainer Agreement expired by its own terms in 1982. Id., Ex. 29, Lts. to Dep't of the Interior, dated Mar. 25, 1980, Mar. 31, 1981, Apr. 13, 1982, & Mar. 1, 1983. Third, in 1979, BSK sent a letter to the DOI stating that BSK was entitled to a contingency fee, and noting that the "retainer contract dated June 24, 1966, and approved July 24, 1967 (extension approved on April 19, 1974), runs to March 28, 1982." Id., Ex. 27, Lt., dated May 14, 1979. There is little evidence on the record speaking to the Nation's understanding of the legal significance of BSK's withdrawal, however, Jacob Thompson, the President of the N.Y. Oneidas at that time, states in his Affidavit that "[t]he Oneidas of N.Y. did not object at all to [BSK] withdrawing as counsel and understood that other attorneys should be consulted[.] Shortly thereafter, Mr. Bertram Hirsch, an attorney from Long Island, who did not have clients in the [disputed] land claim area, became the attorney for the Oneida Indian Nation of New York." Test Case Dkt. No. 110, Jacob Thompson, Aff., dated Nov. 22, 2002, at ¶ 26. At a minimum then, Mr. Thompson understood that BSK's withdrawal meant that a new attorney would represent the Nation in the Test and Reservation Cases.
Paragraph 9 of the Retainer Agreement stipulates that "[n]o assignment of the obligations of this contract, in whole or in part, shall be made without the consent, previously obtained, of the Nation and the Secretary of the Interior or his authorized representative." Neither party has asserted, and the record does not reflect, that any attempt was made to assign any of BSK's obligations under the Retainer Agreement to the Nation's substituted
Paragraph 10 of the Retainer Agreement states that if the attorneys terminate the Retainer Agreement, their compensation will be decided as the "court or tribunal finally determining the Oneidas' claim may determine to be equitable." Retainer Agreement at ¶ 10 (emphasis added). When the N.Y. and WI Oneidas filed their Opposition, they argued that because no final determination had been reached in the Reservation Case, BSK's Motion is untimely. Joint Opp'n at p. 8. However, both the Test and Reservation cases now have final determinations, which renders any discussion as to timeliness moot.
Paragraph 5 of the Retainer Agreement states that "[i]f the United States Department of Justice assumes the responsibility of handling the claim, the fee of the Attorneys shall be fixed by the Secretary of the Interior on a quantum meruit basis if said Department of Justice is successful in obtaining a recovery." The N.Y. and WI Oneidas argue that this Court lacks jurisdiction under Paragraph 5 because the DOJ has intervened in the case, and therefore the Secretary of the Interior should determine the question of attorney fees. Joint Opp'n at pp. 2-5.
The record shows that the DOJ intervened in the Reservation Case in 1998. Reservation Case Dkt. Nos. 48, USA Mot. to Intervene & 56, Order Granting Mot. to Intervene. As previously discussed, the Retainer Agreement with BSK was terminated in 1978, invoking the directions of Paragraph 10. Paragraph 5 stipulates that if the DOJ takes responsibility for the case from BSK, the latter's fee will be determined by the Secretary of the Interior. However, BSK's responsibility for the cases ended when they terminated the Retainer Agreement in 1978. BSK's obligations under the Retainer Agreement were not assumed nor was the contract extended by the Nation's subsequent counsel. Therefore, the DOJ cannot assume the responsibility for handling the claim from BSK because BSK had no responsibility to relinquish in 1998.
The N.Y. and WI Oneidas argue that even if the Retainer Agreement was terminated, Paragraph 5 still applies because the DOJ has intervened, essentially positing that Paragraph 5 supercedes Paragraph 10. Id. at pp. 3-5. There is nothing in the Retainer Agreement to suggest that Paragraph 5 supercedes Paragraph 10, nor is there any other reason for the Court to follow such an interpretation. Both Paragraphs offer contingency plans for two different scenarios in which BSK would be relieved of its obligations specified in the Retainer Agreement: Paragraph 10 concerns what happens in the event the contract is terminated prior to recovery; Paragraph 5 concerns what happens in the event the DOJ assumes control of the claims from BSK prior to recovery. If the DOJ had intervened prior to the termination of the Retainer Agreement in 1978, there would be no reason for us to consider Paragraph 10. Equally then, because the contract was terminated prior to the DOJ's intervention, there is no reason to consider Paragraph 5 and the instructions
The N.Y. and WI Oneidas assert that their tribal sovereign immunity precludes this Court's jurisdiction over this Motion. It is well-settled that tribes maintain sovereign immunity against civil claims unless (1) Congress has waived said immunity by statute, or (2) the tribe has "unequivocally expressed" its intent to waive it. Santa Clara Pueblo v. Martinez, 436 U.S. at 58, 98 S.Ct. 1670 (citing United States v. Testan, 424 U.S. 392, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976)). Nonetheless, while an Indian tribe's waiver of its sovereign immunity must be clear, it has never been held that clarity requires the use of the words "sovereign immunity." C & L Enters., Inc. v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 532 U.S. 411, 420, 121 S.Ct. 1589, 149 L.Ed.2d 623 (2001) (citing Sokaogon Gaming Enter. Corp. v. Tushie-Montgomery Assocs., Inc., 86 F.3d 656, 659-660 (7th Cir.1996)).
The N.Y. and WI Oneidas assert that they have made "no waiver that would permit either a judicial or administrative judgment or order regarding fees." Joint Opp'n at p. 15. However, Paragraph 10 of the Retainer Agreement states that if the contract is terminated by the Nation, the attorneys, or the Secretary of the Interior, "the attorneys shall be credited with such share in the attorney fee as the court or tribunal finally determining the Oneidas' claim may determine to be equitable."
In C & L Enters., Inc. v. Citizen Band Potawatomi Indian Tribe of Oklahoma, the Supreme Court held that a tribe's express consent to arbitration in a contract was a clear waiver of its sovereign immunity. 532 U.S. at 420, 121 S.Ct. 1589. In that case, the Potawatomi Tribe of Oklahoma argued that because the contract did not name a specific judicial forum in which to enforce the decision of the arbitrator, sovereign immunity was not waived. Id. at p. 421, 121 S.Ct. 1589. The Supreme Court rejected that argument, holding that the consent to arbitration in the contract "memorialize[d] the Tribe's commitment to adhere to the contract's dispute resolution regime," thus constituting a waiver of sovereign immunity. Id. at p. 422.
In the instant case, Paragraph 10 of the Retainer Agreement unambiguously proclaims that the court which finally determines the Nation's claims is the specific judicial forum that has the authority to determine attorney's fees in the event the contract is terminated. Therefore, Paragraph constitutes an even more explicit waiver of sovereign immunity than the arbitration clause at issue in C & L Enters., Inc., which clause the Supreme Court determined to be a waiver of sovereign immunity. As such, the N.Y. and WI Oneidas' sovereign immunity is abrogated to the extent delineated in Paragraph 10, which by its application gives this Court express jurisdiction to determine on an equitable basis what compensation, if any, BSK is due.
Paragraph 10 of the Retainer Agreement states that if the contract is terminated, "except for the wrongdoing or dereliction of the attorneys, the attorneys shall be credited with such share in the attorney fee as the court or tribunal finally determining the Oneidas' claim may determine to be equitable." (emphasis added). According to the N.Y. and WI Oneidas, BSK has forfeited any right to attorney's fees because their conduct constitutes "wrongdoing or dereliction" under Paragraph 10,
Specifically, the N.Y. and WI Oneidas make the following arguments: (1) By virtue of the fact that BSK had attorneys, family members of attorneys, and clients with vested proprietary interests in land parcels located within the 300,000 acre plot that was alleged to have been obtained in violation of the Non-Intercourse Act, BSK had a conflict of interest from the outset of its representation of the Nation because the Nation sought to assert its own proprietary rights over that land; (2) BSK could not ethically represent all three Oneida tribes concurrently; (3) BSK withdrew without good cause because its conflicts were extant in 1978 and foreseeable, and because BSK's motive for withdrawal was its perceived "diminishing returns" on the case and not because of any ethical conflict; (4) BSK failed to disclose its conflicts to the Nation and to the Secretary of the Interior; and (5) BSK "kept the Oneidas away from other lawyers." Joint Opp'n at pp. 16-22.
In addition to these aforementioned arguments, the N.Y. Oneidas allege in a separate brief that BSK engaged in unethical conduct and wrongdoing after their withdrawal in 1978, and should be denied attorney's fees from the N.Y. Oneidas on that basis as well. Test Case Dkt. 109, Separate Opp'n. We address first the N.Y. and WI Oneidas' pre-1978 ethical claims.
Because the Retainer Agreement was entered into in 1967, it is necessary to briefly examine the applicable professional ethical standards from that time. On January 1, 1970, the Model Code of Professional Responsibility (hereinafter "the Code") became the effective professional standard adopted by the New York State Bar Association. See N.Y. JUD. LAW App. at 351 (McKinney 1975). Prior to the adoption of the Code in 1970, the New York State Bar Association followed the Canons of Professional Ethics first promulgated by the American Bar Association in 1908. Thus, the form and packaging of the ethical standards changed during the lifetime of the Retainer Agreement from 1967 to 1978, however the content of those standards in relation to conflicts of interest remained consistent.
Canon 6 of the Canons of Professional Ethics (pre-1970) concerning adverse influences and conflicting interests stated:
HENRY S. DRINKER, LEGAL ETHICS 311 (Columbia Univ. Press 1953); see also Consol. Theatres v. Warner Bros. Circuit Mgmt. Corp., 216 F.2d 920, 924 n. 3 (2d Cir. 1954).
Pursuant to the Code as it was adopted in 1970,
In addition to the DR's, EC 5-15 pertinently states:
Id. at pp. 33-34.
It is undisputed that portions of the approximately 100,000 and 300,000 acres of land for which compensation was sought in the Test and Reservation Cases, respectively, was owned by BSK attorneys, their family members, and their clients. Reply at p. 26. The claims presented in the Test and Reservation Cases asserted that the Nation had a valid claim to title of the land. Shattuck Decl. at ¶ 73 (stating that "this was an action to declare the Oneidas'
However, because BSK agreed to sue only the State of New York and its subdivisions, it precluded the creation of a situation wherein it would be forced to directly sue its own attorneys, their family members, or its other clients. As such, BSK did not have a "direct and substantial stake in the outcome of the litigation" and therefore was not "akin to that of a defendant," rather, its interests were indirect. Greene v. Greene, 47 N.Y.2d 447, 452, 418 N.Y.S.2d 379, 391 N.E.2d 1355 (N.Y.1979). Were New York State to settle the claims or be found liable on them, BSK would have suffered no direct negative financial or other loss, and the same would have held for the family members of BSK's attorneys and BSK's landowning clients. Thus, BSK created a unique situation in which the ends sought on behalf of the Nation (monetary recovery from the State of New York) did not create any potential ethical conflicts, but the legal means for obtaining such recovery (the Nation's establishment of its rightful ownership of the land) did.
The cornerstone of the attorney-client relationship, and the raison d'etre for Canon 6 and its counterpart DR 5-101(A)-(C) in the Code, is undivided loyalty on the part of the attorney on behalf of his client. See Kelly v. Greason, 23 N.Y.2d 368, 375-76, 296 N.Y.S.2d 937, 244 N.E.2d 456 (1968). For that reason, Canon 6 requires full disclosure of "any interest in or connection with the controversy, which might influence the client's selection of counsel" at the time of retainer. DR 5-101(A) states that if a lawyer's personal interests could affect his professional judgment, he cannot accept employment "[e]xcept with the consent of the client after full disclosure."
George Shattuck states in his Declaration that
Shattuck Decl. at ¶ 11.
Jacob Thompson, the President of the N.Y. Oneidas at the time the Retainer Agreement was entered into, swears in his Affidavit that BSK's limitations were made clear at a January 15, 1966 Meeting held between the attorneys and members of the CAN, WI, and N.Y. Oneidas where the terms of the Retainer Agreement were agreed to:
Thompson Aff. at ¶¶ 16-18, & 25 (emphasis in original).
Shattuck's April 25, 1977 Letter to Thompson informing him of BSK's intent to withdraw refers to past discussions on the issue, stating: "[a]s you know from our discussions at the time of our retainer, we are unable to represent or advise you with respect to potential actions against the private landowners." Smith Decl., Ex. 23, Lt., dated Apr. 25, 1977, at p. 3, 296 N.Y.S.2d 937, 244 N.E.2d 456.
Notwithstanding Mr. Thompson's and Mr. Shattuck's sworn statements, the N.Y. and WI Oneidas argue that BSK improperly
Therefore, the record establishes the Nation's understanding as to the scope of BSK's representation and the ethical reasons for such limitation. The N.Y. and WI Oneidas rely on statements made by George Shattuck at his deposition that he never told the Nation that BSK had conflicts of interest. Joint Opp'n at pp. 19-20 (citing Smith Decl., Ex. 11, Shattuck Dep., dated July 19, 2002 (hereinafter "Shattuck Dep."), at p. 37, stating "I don't think I would have said to them there was a conflict of interest."). However, Shattuck's statements appear to reflect his legal opinion that there was no conflict of interest until around 1977, not that BSK never informed the Nation of its own interests and the interests of its other clients. Indeed, Shattuck stated in the same deposition that he was sure that BSK had told the Nation prior to entering into the Retainer Agreement in 1967 that BSK could not and would not sue private landowners. Shattuck Dep. at p. 44.
Thompson Aff. at ¶ 24.
According to EC 5-3, as written in 1970, if the "self-interest of a lawyer resulting from his ownership of property in which his client also has an interest" interferes with that lawyer's free judgment, then he should decline such employment if proffered by a prospective client. Code of 1970, at p. 30. Furthermore,
Id. (emphasis added).
There is nothing in the record to suggest that BSK's independent judgment was impeached due to the ownership of portions of the land in question by their attorneys, family members, and other clients. According to Thompson's Affidavit, he approached BSK with the intent to sue the State of New York, not individual landowners. Thompson Aff. at ¶ 18. It is clear that for Shattuck, irrespective of any ethical issues, suing the State of New York and not individual landowners was the best strategy. That strategy took into account the confluence of legal and political realities facing Native-American plaintiffs at that time who sought redress for centuries-past injustices relative to land ownership. From Shattuck's perspective, politically speaking, a suit for ejectment against private landowners was ill-advised because it could result in Congressional ratification of the land purchases, leaving the Nation without recourse; legally speaking, a suit for ejectment was ill-advised because the harsh consequences of the relief sought would overshadow and prejudice the merits of their legal claim. Shattuck Decl. at ¶ 128. Thus, BSK argues that although they could not have sued for ejectment because of the ethical conflicts such a suit would have created, nevertheless, such a legal strategy was not likely to bear fruit, especially prior to the Supreme Court's ruling in the Test case.
Although there were potential conflicts of interest from the outset, the evidence in the record supports BSK's assertion that it disclosed its own interests in the land and explained why it could not and would not sue individual landowners due to such conflicting interests, and that the Nation consented to BSK's stipulation that it would represent the Nation against the State of New York only. See Thompson Aff. at ¶¶ 16-17, & 25; Retainer Agreement at ¶¶ 1 & 4. In that respect, a lawyer may limit the scope of his or her representation of a client as long as the lawyer fully informs the client of the extent of the representation and the effects of the limitation on that representation. See Campbell v. Fine, Olin & Anderson,
Therefore, the Court finds that since BSK and the Nation agreed that suit would only be brought against the State of New York and its political subdivisions, BSK's independent professional judgment was not "likely to be adversely affected" by its representation of other clients on unrelated matters. Model Code of 1970, DR 5-105(B). Furthermore, the limitation of BSK's representation meant it was not BSK's "duty to contend for that which duty to another client require[d them] to oppose." Canon 6 of the Canons of Professional Ethics. As such, the Court finds that BSK did not violate ethical standards by entering into the Retainer Agreement with the Nation.
The N.Y. and WI Oneidas also argue that BSK failed to inform the Secretary of the Interior about its conflicts, and therefore the contract should be declared void under 25 U.S.C. § 81. Joint Opp'n at p. 20. At his deposition, George Shattuck stated that he did not recall if BSK had informed the Secretary of the Interior that BSK did not intend to sue private landowners. Shattuck Dep. at p. 110. There is simply no evidence in the record speaking to whether or not the Secretary of the Interior was aware of BSK's potential conflicts, nor is there any legal precedent cited to, and the Court can find none, suggesting that disclosure of such information is required under 25 U.S.C. § 81. In any event, the Retainer Agreement itself specifically limited BSK's representative obligations to claims against the State of New York, and it was approved with that limitation intact by the Secretary of the Interior. The Court therefore finds that there is no factual nor legal basis to support the N.Y. and WI Oneidas' argument that the Retainer Agreement should be voided as a contract pursuant to 25 U.S.C. § 81.
Finally, the N.Y. and WI Oneidas suggest in passing that BSK violated ethical standards by representing the NY, CAN, and WI Oneidas concurrently in the same action. Joint Opp'n at pp. 18-19. The argument is fleshed out slightly more in Professor Wolfram's Declaration,
Canon 6 of the Canons of Professional Ethics states that "it is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts." DR 5-105(C) states that "a lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each." Id.
There is no evidence in the record that, at the time the Retainer Agreement was entered into, any conflicting interests existed between the NY, WI, and CAN Oneidas. All three groups had the same interest in procuring monetary compensation from New York State, and also had the same legal basis for their joint claims because at the time the property traded hands in the Eighteenth Century, all three groups were part of the singular Oneida Nation. The record shows that upon approaching BSK, Jacob Thompson made clear that the claim would be brought on behalf of all three tribes. Thompson Aff. at ¶ 15. Thereafter, BSK procured the consent of all three tribes to the joint representation. See Retainer Agreement. The minutes from the January 15, 1966 Meeting include discussions about the basis for the WI and CAN Oneidas' claims, and their right to a portion of the recovery based on the fact that the improper sales of the land occurred prior to their migration from New York. Smith Decl., Ex. 13, Minutes, at pp. 13-14. The fact that any recovery would necessarily have to be split between the three tribes did not constitute a conflict of interest.
In sum, even under the standards of DR 5-105(A) & (C) of the Model Code, which had not yet been adopted at the time the Retainer Agreement was entered into in 1967, there was no conflict of interest between the three Oneida groups, and furthermore, it was obvious that BSK could adequately represent the interests of each because their claims and interests were identical, not inimical.
The N.Y. and WI Oneidas argue that BSK withdrew without just cause because its conflicts of interest were foreseeable and because its reason for withdrawal was its perceived "diminishing returns" on the case. Joint Opp'n at p. 19. "Just cause" for withdrawal is a requirement for the payment of fees pursuant to an attorney's lien under New York Judiciary Law § 475. See, e.g., Klein v. Eubank, 87 N.Y.2d 459, 462-63, 640 N.Y.S.2d 443, 663 N.E.2d 599 (N.Y.1996) (stating "a charging lien is waived by an attorney who without just cause neglects or refuses to proceed with the prosecution of the case") (emphasis in original) (citations omitted). However, "it has long been the law in New York that an attorney's compensation `is governed by agreement, express or implied, which is not restrained by law.'" Diamond D Constr. Corp. v. New York State Dep't of Labor, 2004 WL 1877720, at *13 (W.D.N.Y. Aug. 20, 2004) (quoting Peri v. New York Cent. & H.R.R. Co., 152 N.Y. 521, 46 N.E. 849, 850 (1897)). There is nothing in the Retainer Agreement that requires a showing of just cause for withdrawal in order for attorney's fees to be awarded. Rather, Paragraph 10 states that equitable attorney's fees, as determined by the Court, shall be forthcoming unless the contract is terminated due to "the wrongdoing or dereliction of the attorneys."
The DOI required the substitution of the aforementioned language in Paragraph 10 as a precondition to its approval of the contract under 25 U.S.C. § 81. The original version of the Retainer Agreement submitted to the DOI stated:
Shattuck Decl., Ex. 1, Original Retainer Agreement at ¶ 10.
The approved version of Paragraph 10 deleted the proposed circumstances under which the contract could be terminated, i.e., unethical conduct on the part of the attorneys or the attorneys' opinion that the claims were without merit, and added language allowing BSK and Secretary of the Interior to terminate the contract without precondition and upon sixty (60) days notice, and giving the Nation the same right provided it obtained approval from the Secretary of the Interior. The Secretary of the Interior stated in a letter to George Shattuck that the language he required to be substituted in Paragraph 10 was generally used to provide for the termination of attorneys in Indian land claim actions. Test Case Dkt. No. 61, Lester Brickman Aff., dated Sept. 23, 1999, Ex. 12, Lt. from DOI to Shattuck, dated Mar. 28, 1967.
Thus, Paragraph 10 of the Retainer Agreement specifies the terms under which attorney's fees shall be determined after a premature termination of the contract has occurred and therefore, the Court need not consider whether BSK is owed attorney fees pursuant to New York Judiciary Law § 475 nor whether "just cause" existed for BSK's withdrawal. See McNamee, Lochner, Titus & Williams, P.C. v. Higher Educ. Assistance Found., 50 F.3d 120, 124-25 (2d Cir.1995) (holding that attorneys were not entitled to fees in [q]uantum meruit pursuant to a charging lien because the express terms of the contract controlled the amount of fees due) (citing Jontow v. Jontow, 34 A.D.2d 744, 310 N.Y.S.2d 145, 146-47 (N.Y.App. Div.
Paragraph 10 stipulates that attorney's fees will be barred if the Retainer Agreement is terminated as a consequence of the attorney's "wrongdoing." Paragraph 10 parallels the rule in New York that attorneys forfeit their right to fees if discharged for cause. Budin, Reisman, Kupferberg & Berstein, LLP v. Law Office of Rosemarie Arnold, 79 Fed.Appx. 460 (2d Cir.2003) (unpublished opinion) (citing Schwartz v. Tenenbaum, 7 A.D.2d 866, 182 N.Y.S.2d 51 (1959)). Cause "is shown by impropriety or misconduct on the part of the attorney." Garcia v. Teitler, 443 F.3d 202, 212 (2d Cir.2006) (citing Klein v. Eubank, 87 N.Y.2d at 463, 640 N.Y.S.2d 443, 663 N.E.2d 599).
In this case, the record shows that BSK withdrew from representation and that the Nation consented to their withdrawal. There is no suggestion that the Nation discharged BSK, for cause or otherwise. Cf. id. at 212 (finding forfeiture of attorney's fees was appropriate where record showed that the client discharged the attorney for cause). The New York Court of Appeals has rejected the proposition that attorney's fees are forfeited in the "myriad of cases in which the attorney's representation is discontinued by mutual consent for reasons not rising to the level of misconduct or `just cause' on either side." Klein v. Eubank, 87 N.Y.2d at 462, 640 N.Y.S.2d 443, 663 N.E.2d 599. Under New York law, "[w]here an attorney's representation terminates upon mutual consent, and there has been no misconduct, no discharge for just cause, and no unjustified abandonment by the attorney, the attorney maintains" his right to a fee. Lansky v. Easow, 304 A.D.2d 533, 756 N.Y.S.2d 885, 885-86 (N.Y.App. Div. 2nd Dep't 2003).
The N.Y. and WI Oneidas argue that BSK's entering into the Retainer Agreement despite the conflicts of interest that existed constituted wrongdoing under Paragraph 10 because BSK's conflicts were foreseeable and their withdrawal was therefore without just cause. However, we have already held that BSK did not violate any ethical obligations to the Nation by entering into the Retainer Agreement. Therefore, that claim is without merit.
The N.Y. and WI Oneidas also argue that BSK engaged in wrongdoing because it withdrew due to its own perception that the cases had reached a point of "diminishing returns." The N.Y. and WI Oneidas point to a 1977 Memorandum from George Shattuck to BSK's Executive Committee wherein he states:
Smith Decl., Ex. 22, Mem., dated Apr. 13, 1997 at p. 1.
The N.Y. and WI Oneidas argue that the above Memorandum is proof that BSK withdrew because of its perceived diminishing returns, not because of ethical considerations. However, even assuming that the sole reason for BSK's withdrawal was its perception of diminishing returns, Paragraph 10 of the Retainer Agreement gave BSK the option to withdraw from the
Therefore, we conclude that BSK did not engage in wrongdoing by its withdrawal and termination of the contract, and fees should not be denied on that basis.
The N.Y. and WI Oneidas' final claim of wrongdoing is that before the termination of the Retainer Agreement in 1978, BSK prevented the Nation from seeking other counsel who did not have interests in the land in question. Joint Opp'n at pp. 16-17. The sole basis for this claim is a 1965 Memorandum written by BSK attorney R.E. Wildridge, Esq., in which he summarizes a discussion he had with members of the Oneida Nation at a meeting on July 10, 1965. Smith Decl., Ex. 2, Mem., dated July 12, 1965. In the Memorandum, Wildridge wrote that Jacob Thompson asked him to attend the meeting in order to explain to Nation members why BSK had decided to take the case. Id. at p. 1. Wildridge also wrote that he "urged that those present [at the meeting] reveal to no one outside the Tribe that we had agreed to represent it, lest the State learn in advance of our activity, and speaking selfishly, lest other attorneys try to take advantage of the work we already have done and preempt the case from us." Id. at p. 2 (emphasis added).
From that single italicized statement, the N.Y. and WI Oneidas jump to the conclusion that BSK improperly "kept other lawyers away" from the Nation. There is no evidence in the record to support such a claim. At the time of the meeting referenced in Wildridge's Memorandum, BSK had already decided to take the case, though a retainer agreement had not yet been approved or signed. According to Jacob Thompson, prior to contacting BSK, he contacted several law firms in the greater Syracuse, New York area regarding representation for the Nation on their land claims, however, most "stated they were too small to take on a case of this magnitude, particularly since the Oneida Nation had no ability to pay hourly rates for the enormous work which would be involved." Thompson Aff. at ¶ 11.
After Thompson contacted BSK, Shattuck was assigned to research the merits of the claims so that the firm's executive committee could decide whether or not to take the case. Shattuck Decl. at ¶¶ 7-9. After completing the research, Shattuck and Wildridge concluded that the Nation's claims had merit and recommended that BSK take the case. Smith Decl., Ex. 1, Mem. from Shattuck & Wildridge, dated May 24, 1965. That Wildridge did not want another firm to usurp BSK's representation, especially given the research BSK did prior to the execution of the Retainer Agreement, does not constitute an ethical violation. In that respect, the N.Y. and WI Oneidas cite to no legal authority in support of their claim. Finally,
Therefore, the Court finds that this claim is without merit and that BSK did not violate any ethical standards prior to or as a consequence of its termination of the Retainer Agreement in 1978.
The N.Y. Oneidas allege that BSK violated its professional ethical duty of loyalty in the years following BSK's withdrawal by: (1) seeking to re-enter the Reservation Case in 1990 as counsel for the WI or CAN Oneidas, but not the N.Y. Oneidas; and (2) advising the CAN Oneidas to join a lawsuit against the N.Y. Oneidas in order to close down Turning Stone Casino in New York. Test Case Dkt. 108, Separate Opp'n, at pp. 2-3 & 6.
Throughout the 1980's, the three Oneida tribes were engaged collectively in settlement negotiations with the State of New York. In a letter, dated April 21, 1986, George Shattuck confirmed to the CAN Oneidas that he "would be delighted to represent [them] . . . in negotiations with the State." Smith Decl., Ex. 33, Lt., dated Apr. 21, 1986. In that letter, Shattuck stated that prior to his participation, the "three branches of the Oneidas would have to agree as to the division of the settlement proceeds." Id. Shattuck went on to state that he "could not represent the Oneidas of the Thames against the others, nor could [he] represent them against [the CAN Oneidas]." Id. In a July 11, 1986 Letter to Mr. Arnold Antone of the CAN Oneidas, Shattuck reiterated his offer "to be a member of the negotiating team on behalf of all three branches of the Oneidas." Id., Lt., dated July 11, 1986 (emphasis added).
In a January 15, 1990 Letter to Mr. Richard Hill of the WI Oneidas, Shattuck wrote about the conclusions reached during a previous meeting, stating that BSK was "a valuable resource which the Oneidas have not used," and affirming his desire "to be part of the team, as a representative for the Wisconsin and Canadian Oneidas." Smith Decl., Ex. 37, Lt., dated Jan. 15, 1990. Shattuck acknowledged that "[t]here are certainly some areas of conflict of interest remaining, but I would not be the only counsel nor the lead counsel." Id. Shattuck concluded candidly: "To be frank, I have devoted a lot of time, effort and creativity to the Oneida claim and it is very difficult for me to sit on the sidelines and watch things drag along." Id.
On April 4, 1991, the collective Nation submitted a settlement proposal to the State of New York. Test Case Dkt. No. 111, Hermes Fernandez, Esq., Aff., dated Dec. 11, 2002, Ex. F, Fax from D.O. Brownwood, dated Feb. 4, 1992 at p. 2 (noting that the settlement proposal was submitted by all three tribes). The State responded on or about January 31, 1992, implying that it would negotiate only with the N.Y. Oneidas. That response was forwarded from the N.Y. Oneidas' counsel, David O. Brownwood, Esq., to BSK. Id. at p. 1. Upon learning of the State's position, George Shattuck attempted to impress upon the WI and CA Oneidas that the State's position could jeopardize their interests in a potential settlement. Smith Decl., Exs. 36, 38, & 41. In a March 9, 1992 Memorandum to John M. Meyer, Esq., another BSK attorney, Shattuck stated:
Id., Ex. 36, Lt., dated Mar. 9, 1992.
Shattuck concluded: "I don't know what more I can do here but I do have the feeling that the Oneidas of CAN and WI are not being well represented." Id.
Despite Shattuck's overtures, BSK was not retained by either the CAN or WI Oneidas at that point. Id., Ex. 38, Mem., dated Apr. 27, 1992 at p. 3. In an April 27, 1992 Memorandum to the WI Oneidas, Shattuck lamented New York's position that it would deal only with the N.Y. Oneidas. Id. at pp. 4-5. In a subsequent Memorandum to both the WI and CAN Oneidas, Shattuck stated: "Bond, Schoeneck & King has always represented all three groups, and indeed all Oneidas whether living with the groups or not. We feel a very strong sense of duty to the New York Oneidas, but not at the expense of the other groups." Id., Ex. 41, Mem., dated May 17, 1992 at p. 2.
Following a meeting between Shattuck and representatives from the CAN and WI Oneidas in 1992, Shattuck wrote a letter in which he stated that BSK could represent the CAN and WI Oneidas as litigation counsel only if BSK "would in no way be requested to act adversely to the New York Oneidas." Id., Ex. 42, Lt., dated May 27, 1992 at p. 5. In that same letter, Shattuck recommended that the CAN and WI Oneidas ask the N.Y. Oneidas to repudiate New York's position that it would only deal with them, and that if the N.Y. Oneidas' response was negative, that they "break[] off negotiations" and prepare to litigate. Id. at pp. 1-2. However, a few months later, Shattuck wrote a letter to the WI Oneidas stating that due to "perception about conflicts of interest, and related concerns," BSK would not act as their litigation counsel. Id., Ex. 60, Lt., dated Sept. 1, 1992.
On February 8, 1993, the N.Y. Oneidas sent a letter to the WI Oneidas explaining that they had "made the difficult decision to suspend its efforts to negotiate resolution of its land claims jointly with the Oneidas from Wisconsin and Canada," and "negotiate a settlement separately with the State of New York." Id., Ex. 49, Lt., dated Feb. 8, 1993, at pp. 1 & 3.
On July 19, 1993, several members of the N.Y. Oneidas filed an action in federal court seeking a permanent injunction against the operation of the Turning Stone Casino in New York. Homer v. Halbritter, 158 F.R.D. 236, 236 (N.D.N.Y.1994); see also Smith Decl., Ex. 45, Compl., dated July 19, 1993. The plaintiffs in that action were represented by Bertram E. Hirsch, Esq. Id. During the summer of 1993, BSK and the CAN Oneidas were communicating about the possibility of entering into a new retainer agreement. In a letter to the CAN Oneidas dated July 23, 1993, Shattuck wrote that under the general terms of the retainer agreement BSK was proposing, BSK would "cooperate with other counsel of the Oneidas, including Arlinda Locklear and Bert Hirsch." Id., Ex. 44, Lt., dated July 23, 1993, at ¶ 5. Shattuck also wrote that if a new retainer agreement was entered into, BSK "would not represent [the CAN Oneidas] regarding a division of any settlement proceeds with the other Oneida groups" and that they "would both have to remain aware that Bond, Schoeneck & King have also represented the other two groups on the claims and could not do anything inconsistent with their interests." Id., Ex. 44, Lt., dated July 23, 1993, at ¶¶ 4 & 6(c).
On July 15, 1994, Ray Halbritter, Nation Representative for the N.Y. Oneidas, sent a letter to George Shattuck stating:
Id., Ex. 54, Lt., dated July 15, 1994.
Shortly thereafter, Shattuck responded to the letter, stating that BSK was acting as legal consultant to the CAN Oneidas and would not be representing them in any litigation concerning disputes between the Oneida branches. Shattuck stated:
Id., Ex. 55, Lt., dated July 26, 1994 at p. 1.
The Code of Professional Responsibility was adopted in New York State in 1970 and remained in effect until April 1, 2009, when New York's adoption of the Model Rules of Professional Conduct went into force. Canon 5 states "[a] lawyer should exercise independent professional judgment on behalf of a client." DR 5-108(A) states, in pertinent part: "a lawyer who has represented a client in a matter shall not, without the consent of the former client after full disclosure . . . [t]hereafter
In this case, the N.Y. Oneidas do not allege that BSK used any secrets or confidences during the course of its representation of the CAN Oneidas, rather, the N.Y. Oneidas' claim is one of general disloyalty and representation of interests adverse to their own.
Throughout the 1980's, the three Oneida tribes were engaged collectively in settlement negotiations with the State of New York. However, in 1991, New York State implied that it would thereafter only deal with the N.Y. Oneidas. Upon learning of the State's position, George Shattuck attempted to impress upon the WI and CAN Oneidas that the State's position could jeopardize their interests in a potential settlement. Smith Decl., Exs. 36, 38, & 41. Subsequently, the N.Y. Oneidas made clear to the WI and CAN Oneidas that they intended to engage in negotiations with the State separately in order to procure a favorable settlement for themselves. Id., Ex. 49. The N.Y. Oneidas' letter to the WI Oneidas cementing their intent to deal individually with the State references fissures between the tribes on a variety of issues, including "cash division, control of land in New York, . . . repatriation," and allegations that the WI Oneidas met with politicians regarding the land claims without prior consultation of the N.Y. Oneidas and "took those occasions to criticize the decisions [of the N.Y. Oneidas'] leaders" and "accuse [the N.Y. Oneidas] of attempting to use gaming economic development to bargain away elements of the land claims." Id. at pp. 1-2.
Despite the divisions between the Oneida tribes, BSK executed a Retainer Agreement with the CAN Oneidas, pledging to represent the CAN Oneidas with respect to their land claims against the State of New York. In that Retainer Agreement, BSK inserted the following limitations on their representation:
Smith Decl., Ex. 30, Retainer Agreement, dated Nov. 2, 1993.
These aforementioned provisions evince BSK's attempt to walk across an ethical tight-rope: BSK obligated itself to represent the interests of the CAN Oneidas, but it could do so only to the extent those interests did not conflict with the interests of the other tribes. However, given the N.Y. Oneidas go-it-alone stance at that point, no one representative would have been in a position to protect the interests of all three tribes simultaneously. Essentially, the N.Y. Oneidas found themselves in a superior bargaining position that served to undermine the respective positions of the other tribes. Shattuck recognized the disparate positions of the tribes when he stated, "[w]e feel a very strong sense of duty to the New York Oneidas, but not at the expense of the other groups." Id., Ex. 41, Mem. at p. 2. Clearly, if BSK's duty to the N.Y. Oneidas could come at the expense of the other tribes, the three tribes' interests were not completely congruent.
Complicating matters further was an apparent power struggle for leadership control within the N.Y. Oneida tribe, which manifested into the lawsuit brought against N.Y. Oneida Representative Ray Halbritter concerning the management of Turning Stone Casino. Several members of the N.Y. Oneidas
Homer v. Halbritter, 158 F.R.D. at 237.
In support of their claim that BSK violated its duty of loyalty, the N.Y. Oneidas cite to In re Corn Derivatives Antitrust Litig., 748 F.2d 157 (3d Cir.1984). In that case, the Third Circuit Court of Appeals granted a motion to disqualify an attorney who had formerly represented several plaintiffs in a class action and withdrew from representing certain client-plaintiffs who approved a settlement, and then sought to represent a single client-plaintiff who objected to the settlement on appeal. 748 F.2d at 162. In describing an attorney's
The factual scenario before us is distinguishable from that presented in In re Corn Derivatives Antitrust Litig. In that case, the attorney was forced to advocate a position directly adverse to that of his former clients because his client opposed a settlement that his former clients approved. Here, although the unity of the tribes had broken down, BSK was not forced to advocate directly against the N.Y. Oneidas on the land claim because all three tribes still held the same legal claim against the State. To date, all three tribes maintain their common land claim against the State of New York. Thus, this was not an example of "professional apostasy," such as when a lawyer "switches sides" and represents the former client's adversary in the same matter, as would have been the case had BSK undertook to represent New York State or its subdivisions in the same or a related matter. In re I Successor Corp., 321 B.R. 640, 650 (S.D.N.Y.2005). In this instance, BSK sought to re-enter the land claim game with the same team as before, but this time coaching only one of its players.
Nonetheless, BSK had a duty of loyalty to all three tribes owing to its 1967 Retainer Agreement. The attorney-client relationship between BSK and the Nation was terminated along with the Retainer Agreement as a consequence of BSK's withdrawal in 1978. Rafter v. Liddle, 2006 WL 2255093, at *8 (S.D.N.Y. Aug. 4, 2006) (citing Shumsky v. Eisenstein, 96 N.Y.2d 164, 170-71, 726 N.Y.S.2d 365, 750 N.E.2d 67 (N.Y.2001)). But, a lawyer's duty of loyalty does "not necessarily end when the attorney-client relationship ends." In Re Agent Orange Prod. Liab. Litig., 800 F.2d 14, 17 (2d Cir.1986) (citations omitted); see also Arifi v. de Transport du Cocher, Inc., 290 F.Supp.2d 344, 348 (E.D.N.Y.2003). The Court affirms that the expectation of loyalty is worthy of protection, Rosman v. Shapiro, 653 F.Supp. 1441, 1446 (S.D.N.Y.1987), and that "[a]s a matter of professional responsibility, an attorney owes a duty to his client . . . not to accept representation of a person whose interests are opposed to the client," Ehrich v. Binghamton City Sch. Dist., 210 F.R.D. 17, 23 (N.D.N.Y.2002) (internal quotation marks and citation omitted). See In re I Successor Corp., 321 B.R. at 649 (affirming that attorneys owe a duty of loyalty to former clients which is separate and distinct from the duty to preserve client confidences). Indeed, Comment 1 to ABA Model Rule 1.7 states that "[l]oyalty is an essential element in a lawyer's relationship to a client." MODEL RULES OF PROF'L CONDUCT R. 1.7 CMT. 1 (2007).
Considering the divisions and conflicting interests among three Oneida tribes, it is the Court's conclusion that BSK's representation of the CAN Oneidas violated the duty of loyalty it owed to the N.Y. Oneidas. Particularly, with respect to settlement negotiations with the State, the interests of the tribes were adverse at the time BSK began its representation of the CAN Oneidas. Had BSK procured the N.Y. Oneidas' consent, they might have properly represented the CAN Oneidas in their land claims. See DR 5-108(A). In a letter to the CAN Oneidas pre-dating the execution of their contract, Shattuck appears to have recognized the prudence of obtaining such consent, stating he "would like to have a letter from the other two groups . . . indicating that they have no objection to our entering into such an agreement with you." Smith Decl., Ex. 44
The N.Y. and WI Oneidas argue that BSK has forfeited its right to fees because they engaged in "wrongdoing or dereliction" under Paragraph 10 of the original Retainer Agreement, and pursuant to "the generally-applied rule that disloyal attorneys may not receive or keep fees." Sep. Opp'n at p. 12.
Paragraph 10 of the Retainer Agreement states, "[i]f the contract shall be so terminated, except for the wrongdoing or dereliction of the attorneys," the court shall assess equitable fees due the attorneys. The "wrongdoing or dereliction" provision is tied to the termination of the contract, which the Court has already determined did not implicate any wrongdoing on the part of BSK. Paragraph 10 is therefore silent on the effect of post-termination ethical violations on attorney's fees.
The N.Y. and WI Oneidas cite to Silbiger v. Prudence Bonds Corp. for the proposition that disloyal attorneys forfeit their right to attorney's fees. 180 F.2d 917, 920-21 (2d Cir.1950). In that case, the Second Circuit stated that "an attorney must not represent opposed interests; and the usual consequence has been that he is debarred from receiving any fee from either, no matter how successful his labors." Id. at 920. In this case, BSK did not represent opposing interests in a "suit inter partes." Id. at p. 921. At the time BSK signed the contract with the CAN Oneidas, the N.Y. Oneidas were a former client. Moreover, to date, all three tribes maintain a common interest in their joint civil claims against the State in the Reservation Case, which are predicated upon the same factual and legal bases.
Furthermore, the rule announced in Silbiger is not without exception. In fact, in that very case, the Second Circuit held that reduced attorney's fees are properly allowed despite an improper representation of opposing interests when "the client is otherwise adequately protected, and the attorney is not paid in any part by the party whose side he has opposed." Id. at 920-21. In New York, N.H. & H.R. Co. v. Iannotti, the Second Circuit upheld the decision of a bankruptcy court sitting in equity to allow compensation to attorneys who represented conflicting interests. 567 F.2d 166, 179 (2d Cir.1977). In that case, the Second Circuit affirmed that absent a statutory directive to the contrary, a court sitting in equity has the discretion to assess an appropriate penalty for an improper representation of conflicting interests and is not "bound by an absolute rule prohibiting compensation in the case of conflict of interest[.]" Id. at p. 179.
BSK's representation of the CAN Oneidas, though improper, did not reduce the value of the services BSK performed on behalf of the Nation prior to the termination of the Retainer Agreement in 1978. Id. at 180-81 (stating that the value of the services performed prior to the conflict of interest was of "crucial significance" in determining the appropriate penalty). Nor is there any evidence in the record that BSK's improper representation of the CAN Oneidas has prejudiced the N.Y. or the collective Nation's land claims in any way. As such, to permit the N.Y. Oneidas "to retain the benefit of [BSK's] services without paying for them would amount to a windfall" for the N.Y. Oneidas. Id. at 181; see also In re Eastern Sugar Antitrust Litig., 697 F.2d 524, 533 (3d Cir.1982) (holding that attorney's fees should not be
Therefore, the Court concludes that BSK's improper representation does not warrant the complete preclusion of attorney's fees due under the terms of the Retainer Agreement.
By its Motion, BSK asks the Court to order that any fees due it be calculated "as a specific percentage of the value of the consideration recovered by, awarded to or otherwise received by the Oneidas, including all benefits and compensation conferred by or on behalf of the State and its political subdivisions, instrumentalities and agencies in the Test and Reservation Cases." BSK's Mem. of Law at p. 25. The N.Y. and WI Oneidas submit that any fee due BSK should be based on an hourly fee rate, because Paragraph 10 "does not refer to a percentage fee," but rather, to "concepts of quantum meruit and equitable share." Joint Opp'n at p. 22.
Paragraph 10 of the Retainer Agreement provides that in the event the contract is prematurely terminated, the "attorneys shall be credited with such share in the attorney fee as the court or tribunal finally determining the Oneidas' claim may determine to be equitable." The Retainer Agreement originally provided for a fixed continency fee of twenty percent (20%) of any recovery obtained by the Nation below a $1,000,000. Over thirty (30) years have passed since the termination of the Retainer Agreement in 1978. Since BSK's withdrawal, the Nation has pursued its land claims in the Test and Reservation cases zealously, engaging in extensive negotiations and motion practice. In the Test Case, BSK withdrew after helping the Nation establish liability against Oneida and Madison Counties. Thereafter, the Nation's substitute counsel pursued the damages phase of the trial, which included appeals before the Second Circuit, another appearance before the Supreme Court, and several motions before the District Court. See generally Test Case Dkt. Damages were finally awarded in that case on May 6, 2003, and their receipt acknowledged on March 11, 2004. Test Case Dkt. No. 119 & entries, dated Mar. 9, 2004. In the Reservation Case, BSK's participation as counsel was limited to researching, drafting, and filing the Complaint. Shattuck Decl. at ¶¶ 110-11 (describing BSK's involvement in the Reservation Case); Reply at p. 5.
There are now judgments in both the Test and Reservation cases. In the Test case, based upon an amended judgment and the parties' stipulation, the Honorable Neal P. McCurn issued an order setting the amount of damages against the Counties of Oneida and Madison at $57,494.87, which has been satisfied, Test Case, Dkt.
For the reasons stated herein, it is hereby
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court.
Date: February 18, 2011.
Albany, New York
