PH2\832387.2

IN THE UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF PENNSYLVANIA

__________________________________________

LEXINGTON INSURANCE COMPANY, : CIVIL ACTION

: NO. 02-CV-4435

Plaintiff, : (Hon. Anita B. Brody)

:

v. :

:

DAVID FORREST et al, :

:

Defendants. :

__________________________________________:

ORDER

AND NOW, upon consideration of the Unopposed Expedited Motion of Duane Morris 

LLP for Leave to Withdraw as Counsel to David Forrest, the supporting Memorandum of Law 

and Affidavits thereto, and any oral argument thereon, its is 

Hereby ORDERED that Edward M. Dunham, Jr., Esquire, Shannon Hampton Sutherland, 

Esquire, and Duane Morris LLP shall be, and hereby are, permitted to withdraw their appearance 

on behalf of David Forrest in this matter;

It is FURTHER ORDERED that David Forrest shall be permitted to represent himself 

pro se in this matter.

By the Court:

____________________________________

Anita B. Brody

United States District Judge

Case 2:02-cv-04435-AB Document 106 Filed 12/17/2004 Page 1 of 20
PH2\832387.2

IN THE UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF PENNSYLVANIA

__________________________________________

LEXINGTON INSURANCE COMPANY, : CIVIL ACTION

: NO. 02-CV-4435

Plaintiff, : (Hon. Anita B. Brody)

:

v. :

:

DAVID FORREST et al, :

:

Defendants. :

__________________________________________:

UNOPPOSED EXPEDITED MOTION OF DUANE MORRIS LLP

FOR LEAVE TO WITHDRAW AS COUNSEL FOR DAVID FORREST

Duane Morris LLP (“Duane Morris”), by and through the undersigned, hereby submits 

this Unopposed Expedited Motion for Leave to Withdraw as Counsel for David Forrest, and, in 

support hereof, submits the accompanying Memorandum of Law and attached affidavits thereto, 

all of which are incorporated herein by reference as if set forth at length.

Duane Morris has promptly brought this important matter to the Court’s attention upon 

gathering the facts upon which this motion is based. Accordingly, Duane Morris respectfully 

requests this Honorable Court’s expedited consideration of this matter, in light of the depositions 

scheduled for December 21, 22, and 23, 2004 and the Court’s expressed desire to closely adhere 

Case 2:02-cv-04435-AB Document 106 Filed 12/17/2004 Page 2 of 20
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to the Amended Scheduling Order of December 9, 2004. 

Respectfully submitted,

DUANE MORRIS LLP

By:

_/s/ Shannon Hampton Sutherland _______

Edward M. Dunham, Jr., Esquire

Attorney I.D. No. 21550

Shannon Hampton Sutherland, Esquire

Attorney I.D. No. 90108

One Liberty Place

Philadelphia, PA 19103 

Dated: December 17, 2004

Case 2:02-cv-04435-AB Document 106 Filed 12/17/2004 Page 3 of 20
PH2\832387.2

IN THE UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF PENNSYLVANIA

__________________________________________

LEXINGTON INSURANCE COMPANY, : CIVIL ACTION

: NO. 02-CV-4435

Plaintiff, : (Hon. Anita B. Brody)

:

v. :

:

DAVID FORREST et al, :

:

Defendants. :

__________________________________________:

MEMORANDUM OF LAW IN SUPPORT OF THE 

UNOPPOSED EXPEDITED MOTION OF DUANE MORRIS LLP

FOR LEAVE TO WITHDRAW AS COUNSEL FOR DAVID FORREST

Duane Morris LLP (“Duane Morris”), by and through the undersigned, submits this 

Memorandum of Law in Support of its Unopposed Expedited Motion for Leave to Withdraw as 

Counsel for Defendant David Forrest.

I. FACTUAL BACKGROUND AND INTRODUCTION

In October 2002, Mr. Forrest retained Duane Morris to represent him, see the Affidavit of 

Edward M. Dunham, Jr. (“Dunham Aff.”), attached as Exhibit “A,” at ¶ 4; Affidavit of Mr.

Forrest (“Forrest Aff.”), attached as Exhibit “B”,” at ¶ 4, in this action in defense of the 

allegations of the Complaint and Amended Complaint. 

At the time Mr. Forrest engaged Duane Morris, he agreed in his signed engagement letter 

that

Our statements will be rendered monthly and are payable within 30 

days. In the event that our statements are not timely paid, or that 

payment terms satisfactory to us are not established, we reserve the 

right to renegotiate the terms of this engagement, to terminate it 

and withdraw from this or any representation of you . . . 

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Once a trial or hearing date is set, we will require you to pay all 

amounts then owing to us and to deposit with us the fees we 

estimate will be incurred in preparing for and completing the trial 

or arbitration, as well as jury fees and arbitration fees likely to be 

assessed. If you fail to timely pay any additional deposit

requested, we will have the right to cease performing further work 

and to withdraw from the representation . . . 

You may terminate our representation at any time by notifying us. 

Your termination of our services will not affect your responsibility 

for payment of outstanding statements and accrued fees and

expenses incurred before the termination or incurred thereafter in 

connection with an orderly transition of the matter . . . 

We may withdraw from representation if you fail to fulfill your

obligations under this agreement, or as permitted or required under 

any applicable standards of professional conduct or rules of court, 

or upon our reasonable notice to you . . . 

Dunham Aff. at ¶ 5. See also Forrest Aff. at ¶ 6.

Unfortunately, Mr. Forrest has been unable to meet the requirements of his engagement 

with Duane Morris. See Dunham Aff. at ¶ 6; Forrest Aff. at ¶ 7. For example, after the 

exhaustion of Mr. Forrest’s initial retainer in November 2002, he has taken between two and 

thirteen months to retire invoiced amounts. See Dunham Aff. at ¶ 7. Despite Mr. Forrest’s 

untimely last payment to Duane Morris, on October 27, 2004, several invoices – dating as far 

back as nine months – remain outstanding. See Dunham Aff. at ¶ 8. As of December 14, 2004, 

Mr. Forrest’s outstanding invoices for Duane Morris’ costs and fees total in excess of $46,000. 

See Dunham Aff. at ¶ 9; Forrest Aff. at ¶ 9. Although Mr. Forrest has represented to Duane 

Morris that he will retire this outstanding balance, he ha s not provided any timeframe or resource

for its payment. See Dunham Aff. at ¶ 10; Forrest Aff. at ¶ 10. More significantly, Mr. Forrest 

has informed Duane Morris that he cannot afford, and is unwilling to pay, additional future legal 

fees or expenses. See Dunham Aff. at ¶ 11; Forrest Aff. at ¶ 11.

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Mr. Forrest recently requested that Duane Morris terminate its representation as his 

counsel in this matter and instructed Duane Morris to prepare this Motion for Leave to Withdraw 

as his Counsel. See Dunham Aff. at ¶¶ 12, 13; Forrest Aff. at ¶ 15. Mr. Forrest has informed 

Duane Morris that he is unable to retain or pay substitute counsel and, although Duane Morris 

has made him aware of the attendant risks of representing himself, has indicated that he wishes

to represent himself pro se from this point forward. See Dunham Aff. at ¶¶ 14, 15; Forrest Aff. 

at ¶¶ 18, 19.

As an initial matter, if the Court requires Duane Morris to continue to represent Mr. 

Forrest, it will prejudice Mr. Forrest, who has expressed his desire to terminate the attorneyclient relationship with Duane Morris. See Dunham Aff. at ¶ 16.

Moreover, if Duane Morris is forced to continue to represent Mr. Forrest, without the 

prospect of payment for future fees, Duane Morris also will incur a considerable economic 

hardship in that this litigation is, and will continue to be, protracted and expensive. See Dunham 

Aff. at ¶ 17. Initially, Duane Morris must obtain voluminous electronic documents from Plaintiff

at a substantial cost, plus additional costs for paper and Hague Convention discovery. See

Dunham Aff. at ¶ 18. Duane Morris must also incur additional fees to establish the appropriate 

databases to review these hundreds of thousands of documents. See Dunham Aff. at ¶ 18. 

Moreover, Duane Morris would further be forced to forego legal fees for the many weeks, at a 

minimum, of attorney and paralegal time it will require to review these documents. See Dunham 

Aff. at ¶ 18.

These fees and expenses to be incurred only begin to address the initial discovery to be 

completed in this case. See Dunham Aff. at ¶ 19. The parties anticipate taking approximately 30 

to 33 depositions (approximately 18-21 on Plaintiff’s part and approximately an additional 12 on 

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Defendants’ part). See Dunham Aff. at ¶ 19. Only one deposition is expected to take place 

within the Eastern District of Pennsylvania. See Dunham Aff. at ¶ 19. The majority of the 

remainder of the depositions will take place across the country, in the United Kingdom, and 

perhaps in Canada. See Dunham Aff. at ¶ 19. Indeed, Plaintiff has just scheduled three straight 

days of double-tracked depositions for December 21, 22, and 23 in California. See Dunham Aff. 

at ¶ 19. Mr. Forrest has instructed Duane Morris not to attend these depositions or participate on 

his behalf. See Dunham Aff. at ¶ 19. 

If the Court were not to permit Duane Morris to withdraw from the representation of Mr. 

Forrest, in accordance with Mr. Forrest's instructions all of these depositions will require Duane 

Morris to incur great expense in terms of attorney and paralegal preparation time, travel time, 

travel expenses, vendor expenses (including for court reporters, transcripts, copying, and other 

expenses), and other foregone revenue opportunities, with absolutely no prospect of being 

reimbursed. See Dunham Aff. at ¶ 20. See also Forrest Aff. at ¶ 11.

Moreover, Duane Morris must engage financial and insurance experts to advise Mr. 

Forrest on the complex issues involved in the trial of this matter – all at its own expense – if the 

Court does not permit it to withdraw from Mr. Forrest’s representation. See Dunham Aff. at ¶

21. See also Forrest Aff. at ¶¶ 11, 13.

Given the contemplated discovery, even conservative estimates of Mr. Forrest’s future 

legal bills for the next several months range from approximately $15,000.00 to $20,000.00 per 

month. See Dunham Aff. at ¶ 22. Considering Plaintiff’s estimated $5.2 Million in litigation 

costs in the English action on related claims, which involved Plaintiff's review of many of the 

same documents and depositions (interviews) of many of the same witnesses that will need to be 

deposed in this case, any fee estimate of less than several hundred thousand dollars per year for 

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Mr. Forrest’s defense of this case is simply unrealistic. See Dunham Aff. at ¶ 22. Duane Morris 

should not be required to incur such high legal fees without any prospect of remuneration. 

Moreover, given Mr. Forrest’s practice, and expressed continued intention, of limiting his 

communications with Duane Morris so as to limit his incurrence of legal fees, see Forrest Aff. at 

¶ 12, Duane Morris cannot continue in its representation of Mr. Forrest without infringing on and 

breaching its professional obligations as members of the bar to the Court and to Mr. Forrest. See

Dunham Aff. at ¶ 23.

Each of these factors has caused an incurable conflict between Mr. Forrest and his 

counsel. See Forrest Aff. at 13. For these reasons, and as explained in detail below, Duane 

Morris urges the Court to grant it leave to withdraw from representation of Mr. Forrest.

II. ARGUMENT

A. Standards Applicable to the Instant Motion to Withdraw

The Local Rules of Civil Procedure provide that “an attorney’s appearance may not be 

withdrawn except by leave of court, unless another attorney of this Court shall at the same time 

enter an appearance for the same party.” Local R. Civ. P. 5.1. Because a substitute attorney has 

not entered an appearance on behalf of Mr. Forrest, it is left to this Court’s sound discretion to 

permit Duane Morris to withdraw as counsel. In determining whether to permit withdrawal, this 

Court should consider four factors: (1) the reasons withdrawal is sought; (2) the prejudice 

withdrawal may cause to litigants; (3) the harm withdrawal might cause to the administration of 

justice; and (4) the degree to which withdrawal will delay resolution of the case. See McAllister 

v. Massan Shipping of Louisiana, No. 96-4403, 1997 U.S. Dist. LEXIS 4781 (E.D. Pa. 1997) 

(citing Ohntrup v. Firearms Ctr., Inc., 802 F.2d 676, 679 (3d Cir. 1986)); Taylor v. Stewart, 20 F. 

Supp. 2d 882, 883 (E.D. Pa. 1998). 

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The Court should also consider Pennsylvania’s Rules of Professional Conduct. See Local 

R. Civ. P. 14. Under either the mandatory or permissive withdrawal provisions of the 

Pennsylvania Rules, the Court should permit Duane Morris to withdraw from representation of 

Mr. Forrest. Pursuant to the mandatory withdrawal provisions of Rule 1.16(a),

(a) Except as stated in paragraph (c), a lawyer shall not represent a 

client or, where representation has commenced, shall withdraw

from the representation of a client if: (1) the representation will 

result in violation of the rules of professional conduct or other law; 

. . . or (3) the lawyer is discharged. 

Pa. R. Professional Conduct 1.16(a). Moreover, Rule 1.16(b) permits a lawyer to withdraw 

where a client has not satisfied his financial obligations to the lawyer. As that rule states, 

(b) except as stated in paragraph (c), a lawyer may withdraw from 

representing the client if withdrawal can be accomplished without 

material adverse affect on the interests of the client, or if: . . . (4) 

the client fails substantially to fulfill an obligation to the lawyer 

regarding the lawyer’s services and has been given reasonable 

warning that the lawyer will withdraw unless obligation is

fulfilled; (5) the representation will result in an unreasonable

financial burden on the lawyer, or has been rendered unreasonably 

difficult by the client.

Pa. R. Professional Conduct 1.16(b). 

B. Each of the Relevant Factors Weigh in Favor of Permitting Duane Morris to 

Withdraw as Counsel

Upon consideration of all the necessary factors and the applicable rules, the Court has a 

sound basis for permitting Duane Morris to withdraw as Mr. Forrest’s counsel. As he has a right 

to do, Mr. Forrest has decided to discharge Duane Morris as his attorneys and seeks to act pro se. 

See Dunham Aff. at ¶¶ 12, 13, and 15; Forrest Aff. at ¶ 15. As such, Duane Morris is required to 

withdraw as his counsel. See Pa. R. Professional Conduct 1.16(a)(3). 

In addition, Mr. Forrest has continually failed to remit timely payment to Duane Morris, 

has an outstanding balance in excess of $46,000, and has represented to Duane Morris that he 

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does not have sufficient funds with which to pay any future legal fees or costs. See Dunham Aff.

at ¶¶ 9, 11; Forrest Aff. at 11. Substantial additional fees and expenses are certain to be incurred 

in this matter and, without withdrawal, Duane Morris will be forced to continue to represent Mr. 

Forrest and incur expenses and costs without any prospect of payment for its work and expenses. 

See Dunham Aff. at ¶¶ 17-22.

Indeed, Mr. Forrest’s awareness that he cannot pay the necessary fees and costs in this 

litigation has caused Mr. Forrest to drastically limit his communications with Duane Morris in an 

attempt to contain his bills to-date, which poses a threat to Duane Morris’ professional 

obligations and insurmountable friction affecting the representation, requiring withdrawal 

pursuant to Rule 1.16(a)(1) of the Pennsylvania Rules of Professional Conduct. See Dunham 

Aff. at ¶ 23. See also Forrest Aff. at ¶¶ 12, 13.

Collectively, these facts make it imperative that this Court permit Duane Morris to 

withdraw as Mr. Forrest’s counsel. 

1. The Reasons for Which Withdrawal is Sought Favor Withdrawal.

a. The Client Has an Absolute Right to Terminate the AttorneyClient Relationship At Any Time .

It is well established that a client may discharge his or her attorney at any time, with or 

without cause. See, e.g., Commonwealth v. Scheps, 523 A.2d 363, 370 (Pa. Super. 1987) (citing 

United States v. Thomas, 450 F.2d 1355 (D.C. Cir. 1971)). Rule 1.16 of the Pennsylvania Rules 

of Civil Procedure specifically provides that, except when ordered by a tribunal, a lawyer “shall 

withdraw from the representation of a client if the lawyer is discharged.” Pa. R. Professional 

Conduct 1.16(a)(3). Thus where, as here, the client desires to terminate the attorney-client 

relationship, the attorney must seek to leave to, and should be permitted to, withdraw as counsel. 

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In Scheps, the court granted the attorney’s petition to withdraw as counsel based on 

several factors. See Scheps, 523 A.2d at 370. One of the factorsthe court considered was the 

fact that the client had discharged the attorney. See id. at 366-67. The client retained his 

attorney, Alan Lieberman, to represent him in a criminal action. See id. at 364-65. After the 

client failed to pay Mr. Lieberman’s attorneys fees and expenses, the client discharged Mr. 

Lieberman. See id. at 366. The court permitted Mr. Lieberman to withdraw as counsel, finding 

that, where a client discharges his attorney, the attorney-client relationship is terminated. See id.

at 370. 

In reaching its decision, the court reasoned that, “‘[w]hile it is quite true that, under 

certain circumstances, counsel cannot be relieved without permission of the court there is no 

requirement of law or common sense that a court can compel counsel to continue to represent a 

former client where there has been a termination of the attorney-client relationship before trial 

by mutual consent.’” Id. at 366-67 (emphasis added) (citing McDonnell v. Tabah, 297 F.2d 731, 

733 (2d Cir. 1961)). The court continued that the right of a client to terminate the attorney-client 

relationship is necessary in light of the iniquities that would occur if the attorney and client were 

forced to continue such a relationship. Id. at 367. 

Particularly in light of the friction that now exists between Duane Morris and Mr. Forrest, 

see Forrest Aff. at ¶¶ 12, 13, the same inequities would result if the Court does not permit Duane 

Morris to withdraw as Mr. Forrest’s counsel, when Mr. Forrest has instructed Duane Morris to 

terminate the attorney-client relationship and to file this motion to withdraw as his counsel. See

Dunham Aff. at ¶¶ 12, 13.

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b. The Court Should Grant the Petition to Withdraw As Counsel 

Where the Client Has Maintained a Slow Payment History, 

Has Outstanding Legal Fees and Costs, and Has Represented 

that He Cannot Pay Future Fees, and Continued 

Representation Would Place a Financial Burden On Counsel. 

Indeed, as in Scheps, the desire to terminate the relationship here is mutual, as a result of 

Mr. Forrest’s failure to satisfy his obligations to Duane Morris. Rule 1.16 of the Pennsylvania

Rules of Professional Responsibility permits a lawyer to withdraw where a client has not 

satisfied his financial or other obligations to the lawyer. Rule 1.16 states:

(b) except as stated in paragraph (c), a lawyer may withdraw from 

representing the client if withdrawal can be accomplished without 

material adverse affect on the interests of the client, or if: . . . (4) 

the client fails substantially to fulfill an obligation to the lawyer 

regarding the lawyer’s services and has been given reasonable 

warning that the lawyer will withdraw unless obligation is

fulfilled; (5) the representation will result in an unreasonable

financial burden on the lawyer, or has been rendered unreasonably 

difficult by the client.

Pa. R. Professional Conduct 1.16 (emphasis added). In the instant matter, both sub-sections (4) 

and (5) of Rule 1.16 permit Duane Morris to withdraw from representation of Mr. Forrest. 

Without question, Mr. Forrest has undoubtedly violated his payment obligations to his 

attorneys. Prior to undertaking representation of Mr. Forrest, Duane Morris entered into a fee 

agreement with him, whereby Mr. Forrest agreed to pay all legal fees and costs within 30 days of 

invoicing. See Dunham Aff. at ¶ 5; Forrest Aff. at ¶ 6. Nevertheless, after the exhaustion of Mr. 

Forrest’s initial retainer in November 2002, his payment history has been slow – ranging from 

two to thirteen months for the retirement of invoiced amounts. See Dunham Aff. at ¶ 7. As of 

the date of this Motion, Mr. Forrest has a large outstanding balance representing invoices that 

date back as far as nine months. See Dunham Aff. at ¶¶ 8, 9. See also Forrest Aff. at ¶ 9.

In addition, there will no doubt be significant additional future costs involved to defend 

Mr. Forrest against the extensive RICO, fraud, and conspiracy claims against him. See Dunham 

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Aff. at ¶¶ 17-22. Based on Mr. Forrest’s payment history to-date and Mr. Forrest’s lack of 

financial resources, it is highly unlikely that Duane Morris will receive payment for any future 

fees or costs that it will incur. In fact, Mr. Forrest has already indicated to Duane Morris that he 

cannot pay future estimated Duane Morris legal fees and costs associated with his representation. 

See Dunham Aff. at ¶ 11; Forrest Aff. at ¶ 11. As a result, further representation of Mr. Forrest

will result in an unreasonable financial burden on counsel. Therefore, it is clear that, under 

Rules 1.16(b)(4) and (5), and pursuant to the terms of Duane Morris’ engagement, Duane Morris 

should be permitted to withdraw as his counsel. 

Federal and state courts in Pennsylvania have repeatedly held that an attorney may 

withdraw as counsel where a client has violated his obligations to the attorney and the continued 

representation may place an unreasonable financial burden upon the attorney. See, e.g., Max-um 

Fin. Holding Corp. v. Moya Overview, Inc., No. 88-6345, 1990 Dist. LEXIS 12324 (E.D. Pa. 

1990); Commonwealth v. Little, 614 A.2d 1146, 1150 (Pa. Super. 1992); Commonwealth v. 

Roman, 549 A.2d 1320, 1321 (Pa. Super. 1988); Commonwealth v. Scheps, 523 A.2d 363, 370 

(Pa. Super. 1987).

For example, in Max-um Financial Holdings, 1990 LEXIS 12324, the Court granted the 

law firm’s motion to withdraw as counsel based on the failure of the firm’s client to pay the law 

firm on an as-billed basis for fees and costs incurred in defense of the suit. The Court noted that 

“it is unreasonable for the defendants to expect the law firm to continue to represent them when 

it has not been paid for services rendered and, apparently, has little assurance of payment for 

services to be rendered in the future.” Id. at *2 (emphasis added) (citing Leddy v. Hartnett, 510 

F. Supp. 1125, 1126 (E.D. Pa. 1991), aff’d without op., 676 F.2d 686 (3d Cir. 1982)). 

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Similarly, in Scheps, the court noted that, when a client owes an attorney for past legal 

fees of a substantial amount and is not in a position to pay for future legal fees for trial, there is 

no reason to deny an attorney’s petition for leave to withdraw. See Scheps, 523 A.2d at 370. As 

the court explained, “After all, it is the client’s responsibility and not the attorney’s, to pay for 

heavy costs of trial.” Id. (citing Commonwealth v. Novak, 395 Pa. 199, 213, 150 A.2d 102, 109 

(1959)). At the time the attorney filed the petition to withdraw, the client owed his attorney 

$6,000 and it was estimated that a trial would cost substantially more. Mr. Forrest maintains an 

even more substantial balance to Duane Morris, and it is certain that discovery and trial will cost 

hundreds of thousands of dollars more, which Mr. Forrest cannot pay. See Dunham Aff. at ¶¶ 9,

11, & 17-22.

Mr. Forrest clearly violated his fee agreement with Duane Morris through his failure to 

pay significant legal fees and costs. The terms of his engagement of Duane Morris and Rule 

1.16(b)(4) according permit Duane Morris to withdraw as counsel. See Little, 614 A.2d at 1148. 

The certain prejudice to Duane Morris if the Court requires it to continue as Mr. Forrest’s 

counsel is exacerbated by Mr. Forrest’s representation that he cannot pay future estimated legal 

or expert fees. See Rule 1.16(b)(5). See also Fulton Bank v. McKittrick & Briggs Secs., Inc., 

1991 U.S. Dist. LEXIS 887 (E.D. Pa. 1991) (an attorney may withdraw under the Pennsylvania 

Rules when his continued representation is unreasonably difficult and places the firm in an 

unreasonable financial burden); Svarzbein v. Greenwood Square Assocs., No. 90-CV-3838, 1995 

 

2 This case addressed the issue of withdrawal of counsel pursuant to the prior professional 

responsibility laws DR 2-110 entitled “Withdrawal from Employment.” However, that 

rule is substantially similar to the present Rule 1.16 and decisions on Rule 1.16 have 

relied on these past court decisions in determining when to grant permission to withdraw. 

See Commonwealth v. Little, 614 A.2d at 149.

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U.S. Dist. LEXIS 7911 (E.D. Pa. 1995) (permitting counsel to withdraw where the client failed 

to pay legal expenses and refused to authorized the engagement of expert witnesses; finding that 

the client’s lack of cooperation in providing the funds necessary to prosecute the case created an 

irreconcilable difference of opinion as to how the case should be prosecuted).

Simply put, without withdrawal, Duane Morris faces the certain prospect of incurring at 

least hundreds of thousands of dollars in legal fees and expenses, without any prospect of 

payment, to avoid breaching its professional and ethical obligations as members of the bar to act 

with competence and diligence. See Pa. R. Professional Conduct 1.1. & 1.2. 

c. Requiring Duane Morris to Continue to Represent Mr. Forrest 

Will Force Duane Morris to Violate Its Professional 

Obligations.

Significantly, requiring Duane Morris to continue to represent Mr. Forrest will force 

Duane Morris to violate its professional obligations. As the Pennsylvania Rules of Professional 

Conduct provide, unless otherwise ordered, a lawyer “shall withdraw from the representation of 

a client if the representation will result in violation of the rules of professional conduct.” Pa. R. 

Professional Conduct 1.16(a)(1). 

Unfortunately, despite the repeated requests from Duane Morris for more significant 

communication, Mr. Forrest’s contact with Duane Morris has been limited to-date. See Dunham 

Aff. at ¶ 23. See also Forrest Aff. at ¶ 12. Mr. Forrest, who indicates that he has limited his 

contact with Duane Morris in an attempt to contain legal fees he knows he cannot afford, will 

continue to do so if the Court does not permit Duane Morris to withdraw as counsel. See

Dunham Aff. at ¶ 23. See also Forrest Aff. at ¶ 12. This limited communication with its client 

will place Duane Morris in the precarious position of being unable to provide timely and 

complete information to the client or responses to opposing counsel or the Court, or to 

adequately prepare for the myriad depositions that will take place in this litigation, all in 

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violation of its duties of diligence, communication with the client, and fairness to the other 

parties. See Pa. R. Professional Conduct 1.3, 1.4, & 3.4. Accordingly, Duane Morris must 

withdraw from Mr. Forrest’s representation. See id. at R. 1.16(1)(1). 

2. Withdrawal Will Cause Relatively Little or No Prejudice to the 

Litigants or the Administration of Justice, or Delay in a Resolution of 

the Case.

Finally, the Court should permit Duane Morris to withdraw where, as here, withdrawal 

will cause relatively or no prejudice to the litigants or to the administration of justice, nor delay 

in a resolution of the case.

a. Relatively Little Discovery Has Taken Place To-Date.

Mr. Forrest will not be forced to be quickly brought up to speed on extensive discovery 

because, as this Court is well aware, very little discovery has taken place to-date in this case. 

Mr. Forrest, with Duane Morris’ assistance, has already produced to Lexington the relevant, nonprivileged documents in his possession, custody, or control and, as the Court knows, these 

documents were few in number because Flashpoint’s Administrators obtained the original 

Flashpoint documents years ago. 

Although Lexington offered since the time of the last Court conference to produce on CD 

the documents in its possession, custody, or control, those documents have not yet been 

produced because of the $700.00-$1000.00 cost to Mr. Forrest of such production. Even if 

Duane Morris were to obtain undertake the review of those documents, that process would still 

need to proceed hand in hand with Mr. Forrest, the individual likely to be most familiar with 

them. 

No depositions have yet been taken, and the first of approximately 33 depositions will 

only begin next week, with no further depositions yet scheduled beyond next week.

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Moreover, although Lexington recently served a First and Second Set of Requests for 

Admission, Mr. Forrest is already involved in preparing the responses to those requests. 

In short, Mr. Forrest is as aware as Duane Morris of the substance of discovery taken todate and will not require substantial additional time to prepare for his own representation. 

b. Mr. Forrest, the Individual Most Familiar With the Majority 

of the Documents in Lexington’s Possession, Has Agreed to 

Make Himself Accessible to the Court and Litigants.

“Whether to permit an attorney to withdraw must be determined with reference to the 

purpose underlying Local Rule 5.1, which includes ‘ensuring effective court administration.’” 

McAllister v. Massan Shipping of Louisiana, 1997 U.S. Dist. LEXIS 4781 (E.D. Pa. 1997) 

(citing Ohntrup v. Firearms Ctr., Inc., 802 F.2d 676, 679 (3d Cir. 1986)). Concerns regarding 

effective court administration are lessened here, where Mr. Forrest, the individual most familiar 

with the majority of the documents to be reviewed, fully understands his obligation to make 

himself accessible to the Court and other litigants in this case. 

Indeed, because Mr. Forrest represents that his limited communication to-date results 

only from his desire and need to limit his legal bills, by virtue of Mr. Forrest’s pro se

representation, the Court will be eliminating the costly “middle man” and opening a direct route 

of communication with Mr. Forrest. Moreover, Mr. Forrest is not unfamiliar with the U.S. legal 

system. In fact, he has previously testified as an expert witness in U.S. federal court, and has 

given expert testimony in more than 25 cases in three difference countries. As an educated 

businessman, he has the capacity to become sufficiently familiar with U.S. Court rules. 

Additionally, unfortunately for Mr. Forrest, he is not currently employed and can devote the time 

necessary to conclude this matter. Thus, the interests of neither the litigants nor court 

administration will be adversely affected by Duane Morris’ withdrawal, and in fact may be 

advanced.

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PH2\832387.2

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III. CONCLUSION

Considering that (1) the client desires to terminate the attorney-client relationship; (2) the 

client has failed, and will continue to fail, to comply with his fee arrangement and 

communication obligations with Duane Morris; (3) requiring Duane Morris to continue in this 

representationwill cause an undue financial burden upon Duane Morris; and (4) relatively little 

or no prejudice will result to the other litigants, the administration of justice, and scheduling in 

this matter, it is respectfully requested that this Court grant the Unopposed Expedited Motion of 

Duane Morris LLP for Leave to Withdraw as Counsel to David Forrest. 

Respectfully submitted,

DUANE MORRIS LLP

By:

_/s/ Shannon Hampton Sutherland _______

Edward M. Dunham, Jr., Esquire

Attorney I.D. No. 21550

Shannon Hampton Sutherland, Esquire

Attorney I.D. No. 90108

One Liberty Place

Philadelphia, PA 19103 

Dated: December 17, 2004

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PH2\832387.2

CERTIFICATE OF SERVICE

I hereby certify that on this 17th day of December, 2004, I caused a true and correct copy 

of the foregoing Unopposed Expedited Motion of Duane Morris LLP for Leave to Withdraw as 

Counsel for David Forrest, the accompanying Memorandum of Law and Affidavits attached 

thereto, and a proposed form of Order be served by U.S. First Class Mail and E-Mail upon the 

following:

Jeffrey R. Lerman, Esquire

Glenn F. Rosenblum, Esquire

Montgomery, McCracken, Walker & Rhoads, LLP

123 South Broad Street

Philadelphia, Pennsylvania 19109

-andEdward P. Krugman, Esquire

Cahill, Gordon & Reindel

80 Pine Street

New York, New York 10005

Counsel for Plaintiff

James J. Rohn, Esquire

Nicholas M. Centrella, Esquire

Kevin Dooley Kent, Esquire

Conrad O'Brien Gellman & Rohn PC

1515 Market Street, 16th floor

Philadelphia, PA 19102

Counsel for Defendant T. Beauclerc Rogers IV

Thomas M. Kittredge, Esquire

Morgan, Lewis & Bockius LLP

1701 Market Street

Philadelphia, PA 19103

-andJohn Gordon, Esquire

Gene Bannigan, Esquire

Jack Thomas, Esquire 

Morgan, Lewis & Bockius LLP

101 Park Avenue

New York, NY 10178-0060

Counsel for Defendant Tarlo Lyons

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PH2\832387.2

2

Neil G. Epstein, Esquire

Eckert, Seamans, Cherin & Mellott, LLC

1515 Market Street, 9th floor

Philadelphia, PA 19102

-andSanford Louis Michelman, Esquire

Jeffrey D. Farrow, Esquire

Michelman & Robinson, LLP

4 Hutton Centre, Suite 300

Santa Ana, CA 92707

Counsel for Defendant Martin Fink

Alexander Kerr, Esquire

Stephen P. McFate, Esquire

McCarter & English

Mellon Bank Center, Suite 700

1735 Market Street

Philadelphia, PA 19103-7501

Counsel for Defendant New Beginnings Enterprises LLC

Conrad O. Kattner, Esquire

McShea Tecce, P.C.

Mellon Bank Center

1735 Market Street, 16th Floor

Philadelphia, PA 19103

Counsel for Stanley Munson

Dated: December 17, 2004 _/s/ Shannon Hampton Sutherland________

Shannon Hampton Sutherland

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